Reviewed by Nancy Scherer, Department of Political Science, Wellesley College. Email: nscherer [at] wellesley.edu.
Former law professor and current Princeton University provost Christopher L. Eisgruber believes the Supreme Court appointment process is broken. Eisgruber is certainly not the first to argue this point (e.g., Carter 1995). But rather than focusing only on why the process is defective, the author sets out two additional goals for his book: (1) to provide a better description of how the Court works; and (2) to provide a prescription for repairing the Supreme Court appointment process (p.x). The latter goal is what makes this book interesting and worth reading, though ultimately I remain skeptical that his provocative ideas about changing the appointment process will succeed.
Chapters Two through Five provide a very basic civics lesson in what Supreme Court justices do and how the Court differs from its other coordinate branches in the federal government. For an audience of political scientists who study law and courts, the first half of the book does not really provide any new insights into the workings of the Supreme Court. To his credit, though – and unlike many of his peers in the law profession (see e.g., Posner 2008 for an interesting discussion of this point) – Eisgruber readily concedes that justices are driven by their personal ideology when making decisions (p.18). He outright rejects the notion advanced by Chief Justice Roberts at his confirmation hearings that justices are like “umpires” – actors who “don’t make the rules; they apply them” (p.17). While Roberts argued that judges are not politicians, Eisgruber argues that justices are, indeed, policy makers and most do so with a decidedly conservative or liberal bent (p.17). Unfortunately, at other points in the book, he seems to undermine this premise when he states that justices do not vote based on “partisanship” (p.61), nor do they disagree with each other because of “political loyalties” (p.62). He also makes the naïve claim that in BUSH v. GORE, “I do not believe that any of the justices consciously thought about aiding their preferred candidate” (p.65). While it may be true that justices, unlike members of Congress, do not have to toe a particular political party line, it is also true that conservative justices tend to vote in a manner consistent with the Republican Party’s views, and liberals, the Democratic Party’s views. BUSH v. GORE is perhaps the most blatant example of this, as both liberals and conservatives on the Court abandoned their traditional positions on the Equal Protection Clause in order to vote for their preferred candidate. Eisgruber’s concession that justices vote their personal policy preferences could have been made more sharply because it is one that many lawyers and legal academics – those very likely to read [*929] this book – need to hear, loudly and clearly.
One chapter in the first part of the book with which I took issue was Chapter Three, in which Eisgruber makes the case that the method of constitutional interpretation he calls “originalism” is not, as its proponents on the Court claim, a neutral (i.e., non-ideological) means of deciding controversial cases: “The problem with originalism is that it cannot work – or, more precisely, it cannot work without demanding the same kind of politically controversial judgments that it purports to avoid. Moving from the constitutional text to the framers’ intentions is like jumping from the frying pan into the fire: the framers’ intentions are no less ambiguous than the constitutional text itself” (p.35). However, the author’s understanding of originalism harkens back to arguments made decades ago by Justice Rehnquist on what was then called “original intent.” Original intent was seriously compromised following Justice Brennan’s famous speech in 1985, in which he, like Eisgruber, said it was impossible to determine the framers’ original intent because there were so many individuals involved with passage of the Constitution, each with his own understanding of the meaning of the document (Brennan 1985). Conservatives, led by the Federalist Society, in response to Brennan’s critique then re-crafted their method of constitutional interpretation and re-named it “originalism,” “textualism” or “original meaning.” As the president of the Federalist Society stated to me in a 2002 interview (Meyer 2002), originalism (in contrast to original intent) is not an inquiry into the meaning of the Constitution’s words as the Framers themselves understood them, but rather, the meaning of the words to a reasonable person at the time of the framing of the Constitution. One could thus argue that originalism is more neutral than its former iteration in which a justice could choose to cite framers who agreed with his desired interpretation and ignore those who did not. The fact that original meaning is a more neutral method of interpretation is evident in the fact that, today, several leading liberal law scholars (see e.g., Amar 2005) espouse an original meaning method of constitutional interpretation and yet reach liberal outcomes using this method. For example, Amar argues that original meaning of the Commerce Clause leads to an expansive view of congressional power under the clause. Certainly, however, the four justices on the Court currently espousing originalism as the correct method of constitutional interpretation (Roberts, Scalia, Thomas and Alito) all use it in a manner that allows them to consistently reach conservative outcomes.
As we move into the second half of the book, Eisgruber turns away from a description of the Court and towards a normative prescription aimed at improving the appointment process. He places blame for the current appointments mess on both presidents and senators; he urges these political actors to cease trying to nail down nominees’ political ideologies or views – a useless exercise as nominees have learned how to be evasive, particularly in Senate confirmation hearings – and instead, focus their attention on the nominees’ “judicial philosophies.” I think Eisgruber correctly lays blame for the current partisan battles over Supreme [*930] Court nominations on both the president and the Senate. But, his normative prescription is mainly focused on the Senate’s role in the appointment process, and specifically how this institution should re-think their strategies when questioning nominees.
A judicial philosophy – termed the “Holy Grail of Senate confirmation hearings” (p.98), is defined as a specific nominee’s balance of two interests: (1) ideological convictions and (2) procedural convictions, most importantly what the proper role of courts are within the American political system. “A judicial philosophy will thus prescribe a pattern of selective deference: it will identify one set of issues about which judges should defer to other government officials, and another set about which judges should apply and enforce their own, independent view of what the Constitution means” (p.99). Eisgruber insists, however, that a judicial philosophy is not a method of constitutional interpretation. It requires only that the Senate determine “the basic themes or values that govern the nominee’s attitude toward judicial enforcement of the Constitution” (p.100). While it may be that one’s judicial philosophy is not a method of constitutional interpretation, I would argue that questions on judicial philosophy tend to serve the same purpose as questions on a nominee’s method of constitutional interpretation. Both are backhanded ways of determining a nominee’s political ideology. Judicial philosophies are termed liberal, moderate or conservative based on the amount of deference owed the elected branches in deciding a constitutional case and thus serve as important cues on a nominees’ likely political ideology.
After outlining the judicial philosophies of Justices Brennan, Black, Breyer, Scalia and O’Connor in the remainder of Chapter Six, Eisgruber ultimately concludes that: (1) O’Connor and Breyer possess “moderate” judicial philosophies; and (2) presidents and the Senate should be seeking out nominees with similarly “moderate” judicial philosophies. Eisgruber argues that politicians should reject both liberal judicial philosophies like Brennan’s (too little deference to the elected branches) and conservative judicial philosophies like Scalia’s (too much deference). What defines Breyer’s and O’Connor’s judicial philosophies as moderate are their alleged “insist[ence] that judges should proceed cautiously when enforcing the Constitution: the effective pursuit of constitutional goals, on either of their views, requires a kind of active partnership between judges and the elected branches in which judges will usually play the subsidiary role” (p.121). In other words, the author favors justices with moderate judicial philosophies because they exhibit “flexiblility” (p.121) and “openmindedness” (p.120) about the extent of judicial power.
Chapter Nine is, perhaps, the most interesting and telling chapter in the book. Here, Eisgruber sets out specific questions that senators should use in the future in order to ascertain a nominee’s judicial philosophy and thereby avoid direct questions about ideological and political leanings that the nominee is sure to sidestep. Another interesting aspect of the proposed questions is that they shift the burden from the senator to the nominee to defend his or her judicial [*931] philosophy. For example, Eisgruber offers the following question for Senator X to pose:
I have reviewed all of your opinions. I have also spoken with many people who have worked alongside you. The pattern I have found is a troubling one. You consistently read the most [conservative or liberal][sic] political outcomes allowable by the law and the facts. I believe that the American people want a justice who is a moderate, not an extremist. In light of your record, you need to provide this panel with some evidence that you are such a moderate.” (pp.165-66)
Another proffered question reads as follows:
You have been described as a [conservative or liberal] [sic] jurist. . . The American people, though, want justices who will consider each case on its merits, not doctrinaire ideologues. Can you give me some clear examples of times in your public life when you have taken stands or made decisions that were unpopular with other [conservatives or liberals]? (p.174)
These questions, of course, assume that senators share the author’s normative preference for moderate justices, and also reinforce a point made earlier that a “judicial philosophy” is merely another way of ascertaining a nominee’s political ideology.
I would take issue with two other assumptions made by Eisgruber. First, it is not at all clear that the American people share the author’s desire for moderate justices whose future decision making behavior on the Court is unclear. A recent poll by the Annenberg Foundation found that the majority of Americans think that a nominee’s political views should be part of the consideration when a president is weighing whom to choose (Bartels and Johnston 2008). Interestingly, a separate Annenberg poll of Supreme Court lawyers found this group of legal elites opposed to the idea of weighing a potential nominee’s political views (Id.).
Second, Eisgruber never considers how interest groups or party bases would react to an appointment process free of ideological considerations. While he correctly observes that the appointment process has only in the past few decades become so partisan and ideologically-driven, he never considers the impact outside players have had in this transformation. In short, modern presidents have elevated ideological litmus tests above all other factors in choosing justices because of the influx of interest groups into the appointments process (Maltese 1995; Scherer 2005). As chief mobilizing agents for elected officials, interest groups are very powerful players in appointment politics. If a president deviates from the extreme ideological views of his base (including interest groups affiliated with his base), retaliation at the polls is sure to follow. The same is true for senators and their confirmation votes. Thus, presidents and senators aligned with the president are not likely to support a moderate nominee than they were when O'Connor
was nominated. The nomination of Harriet Miers is a perfect example. Unlike most appointment fights, Bush faced the most opposition not from the Democrats or liberal interest groups, but from Republicans and conservative interest groups. In short, interest groups do not want their presidents to choose moderate justices; moderate justices are [*932] only acceptable to the interest groups and political activists whose party does not control the White House (Scherer 2005). In fact, the Republican Party base is so opposed to appointing justices whose judicial decision making behavior is flexible and open-minded, it voted to include a clause in the party’s platform expressly prohibiting selection of “stealth” nominees by a Republican president.
In sum, I am very skeptical that Eisgruber’s innovative approach to modifying the confirmation process can be successful because of interest group capture of the appointment process. Nor am I convinced that the American public or all-important political elites want all justices to be moderate. However, if reformulating questions that focus on the amount of deference owed the elected branches allows senators to gain insights into a nominee’s likely pattern of voting once seated on the bench – and forces nominees to stop evading questions – then it seems like a worthwhile endeavor for senators to explore, particularly those senators who are not in the same party as the president.
Amar, Akhil Reed. 2005. AMERICA’S CONSTITUION: A BIOGRAPHY. New York: Random House.
Bartels, Brandon L., and Christopher D Johnston. 2008. “How Should Supreme Court Selection Processes Be Conducted.” Paper presented at the Annual Meeting of the American Political Science Association, Boston, MA.
Brennan, William J. 1985. “The Constitution of the United States: Contemporary Ratification, Address Before the Georgetown University Text and Teaching Symposium” (Oct. 12), reprinted in THE GREAT DEBATE: INTERPRETING OUR WRITTEN CONSTITUTION. 1986. Washington, D.C.: The Federalist Society.
Carter, Stephen L. 1995. THE CONFIRMATION MESS: CLEANING UP THE FEDERAL APPOINTMENTS PROCESS. New York: Basic Books.
Maltese, John Anthony. 1995. THE SELLING OF SUPREME COURT NOMINEES. Baltimore, MD: Johns Hopkins University Press.
Scherer, Nancy. 2005. SCORING POINTS: POLITICIANS, ACTIVISTS AND THE LOWER FEDERAL COURT CONFIRMATION PROCESS. Palo, Alto CA: Stanford University Press.
BUSH v. GORE, 531 U. S. 98 (2000).
© Copyright 2008 by the author, Nancy Scherer.