Judicial nominations fix needed

The next president is likely to appoint a new member of the U.S. Supreme Court. If that happens, expect to see and hear a lot of Chris Eisgruber.

Eisgruber, 46, already has been in contact with staff members of some senators about “The Next Justice,” his book that he hopes can “repair” a nominating process that has frustrated many in the Senate – and in the country. The Rhodes scholar is likely to become a major commentator about what both the president and senators should do.

That the process needs repairing was obvious from the hearings into the suitability of John Roberts and Samuel Alito to sit on the court. President Bush’s nominees were confirmed but, says Eisgruber, neither the Senate nor the American people learned very much useful about the two men.

“I think many of us were frustrated at the inability of the hearings to produce anything that might be very useful in understanding the positions of the nominees,” says Eisgruber, who is both provost and Laurance S. Rockefeller professor of public affairs at Princeton University.

The constitutional law expert is balanced in assessing fault. The presidents who press for confirmation of their nominees and the senators who judge the nominees’ fitness have both distorted what amounts to one of the most important responsibilities of our government, Eisgruber says.

The problem, he says, lies in the failure of both sides to allow for examination of nominees’ judicial philosophies. Instead, the process is reduced to politically motivated games of judicial hide-and-seek. The nominees – with the help of handlers from the White House – try to hide their views, while senators, especially from the opposition party, often ask inappropriate questions about how the nominees would vote in specific cases.

“As a result, you have a situation, as you had in the Roberts case, where the nominee is describing himself as an ‘umpire’ who simply inquires into what the law is and gives a call,” says Eisgruber.

“Obviously, a Supreme Court justice is far more than an umpire, because this is the court that determines what the law should be. It’s not simply a matter of calling balls and strikes.”

Eisgruber, who clerked both for Supreme Court Justice John Paul Stevens, a liberal, and federal Appeals Judge Patrick Higginbotham, a conservative, says presidents have all but tried to hide the political views of their nominees behind meaningless phrases like “strict construction.”

“But it is difficult to understand exactly what that means,” Eisgruber says. Senators try to force nominees to explain their views in specific terms but make the mistake of asking about controversies the nominees may have to decide.

“Nominees cannot be put in the position of answering questions about specific cases,” he says. For a variety of reasons, ranging from the inappropriateness of prejudging cases not before them to creating a process that sounds like a forum for campaign promises.

The change in the process is a direct result of the 1987 failure of President Reagan to have nominee Robert Bork confirmed by senators concerned about what they considered his ultra-conservative views. Since then, presidents – the two Bushes and Clinton – have sought to limit what senators can know and ask about their nominees.

“But the irony, of course, is that the Bork hearings actually worked the way the Constitution wanted them to work,” says Eisgruber, the son of a Purdue professor and a graduate of Princeton, Oxford and the University of Chicago Law School.

Bork spoke openly about his views, and a majority of senators saw those views as too conservative.

“Senators owe a duty of deference to the president’s nomination, but they also owe a duty to the nation. If they believe a nominee’s positions are too extreme, then they should deny confirmation.”

Eisgruber says senators, instead of trying to press nominees on specific issues, should concentrate on abstractions involving judicial philosophy – the concepts, for example, of equal protection or deference to legislative decisions or the court’s role in protecting minority rights.

“With careful questioning,” says Eisgruber, “senators can learn what they need to know: Just what is this nominee’s judicial philosophy?”