The Next Justice: An Interview With Legal Scholar Christopher L. Eisgruber

President Obama will soon announce his nominee to replace retiring Justice David Souter on the Supreme Court. It’s a critical nomination with long-term ramifications for civil liberties, executive power, management-labor relations, the environment and consumer rights. Hence, it is vital the public know whether the judicial philosophy and ideology of any prospective nominee to the court is compatible with their sensibilities and values. Ideally, all nominees would be forthcoming about their philosophy as the senate either confirms or rejects them with full knowledge of the sort of justice they’re likely to be.

Regrettably, that hasn’t occurred since the 1987 Senate confirmation hearings for Robert Bork. At the time, Bork scared the hell out of me and I’m grateful his nomination was not approved. Even so, I always respected how Bork was upfront about his ideology and judicial philosophy. Bork didn’t hide what he was and the American public and the Senate had a clear picture of what sort of justice he would be.

Sadly, since the Bork nomination fight, our Supreme Court appointments process has become a Kabuki dance existing in an alternate reality. Nominees are conditioned to reveal as little as possible about their judicial philosophies or even avoid acknowledging they have one. A pitiful example is Chief Justice John Roberts who famously compared Supreme Court justices with baseball umpires during his 2005 Senate confirmation hearings:

“Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.”

Contrary to John Roberts’ testimony, a Supreme Court justice has a unique and expansive role in our society. The Constitution contains too many abstract references and clauses for any justice to merely adhere to the rules based on a strict interpretation of the text. An example is the Constitution’s Equal Protection Clause. As the highly regarded legal scholar, Christopher L. Eisgruber, observes in his 2007 book, The Next Justice: Repairing the Supreme Court Appointments Process (Princeton University Press) the Equal Protection Clause reads,

“’No state shall deny to any person within its jurisdiction the equal protection of the laws.’

How should judges interpret this clause? Presumably, they must ask what it means for the laws to protect people equally. Yet that question takes judges straight to the nerve center of American ideological controversy. Liberals and conservatives disagree passionately about what it means for the laws to protect groups equally and about when it is appropriate for the laws to treat one group better than another.”

Overall, Eisgruber argues that due to the Constitution’s many vague abstractions, a Supreme Court justice is disproportionately influenced by their individual values and ideology in determining when it’s appropriate for the court to intervene and even overrule our country’s prior laws. How could it be otherwise when the Constitution’s text is frequently subject to broad interpretation as with the Equal Opportunity Clause? Hence, it is imperative the senate determines if the judicial philosophy of a Supreme Court nominee is representative of the country.

Some legal scholars such as Yale law professor Stephen Carter have argued that nominees to the Supreme Court should simply stay home because their testimony has ceased to contribute anything substantive. There is definitely merit to Carter’s point of view. Nominees since Robert Bork typically speak only in vague platitudes about practicing “judicial restraint” and are ultimately voted up or down based upon their reassuring television appeal.

Eisgruber however argues in his book that the senate should ask more open-ended questions of prospective nominees about their judicial philosophies. Too often senators attempt to trap nominees with “gotcha” questions or ask about specific issues such as abortion that that can easily be deflected to “preserve their integrity” prior to joining the Supreme Court. Ultimately, little is learned and unless opposition interest groups get any traction or a scandal emerges, the nominee is likely to sail through without defending or explaining their ideology.

One example of the sort of question Eisgruber suggests asking is,

“The late Chief Justice William Rehinquist wrote that ‘manifold provisions of the Constitution with which judges must deal are by no means crystal clear in their import, and reasonable minds may differ as to which interpretation is proper.’ Could you tell us something about the values and purposes that will guide you when you interpret provisions like the Equal Protection Clause? How do those values and purposes distinguish your approach from those taken by other justices?”

Eisgruber contends this approach has a better chance of determining the sort of justice a nominee is likely to be. He also argues that it will facilitate more moderate nominees and discourage stealth extremists.

Eisgruber, who previously clerked for U.S. Court of Appeals Judge Patrick E. Higginbortham (a conservative) and Supreme Court Justice John Paul Stevens (a liberal), agreed to a podcast interview with me over the telephone about his book. Among the topics discussed were the insights he gained clerking for two ideologically different judges, the importance of justice’s philosophy about judicial review, President Obama’s desire for a justice with “empathy” and whether we might have a justice who did not serve in the appellate courts. I also asked him numerous questions from my liberal perspective, including whether ideological balance on the court would be better served by appointing assertive liberals instead of moderates.

Please refer to the flash media player below.



This interview can also be accessed at no cost via the Itunes store by searching for either the “Intrepid Liberal Journal” or “Robert Ellman.”

Is There Any Light At the End of the Tunnel?

Typically, I’m not one to post rants. It’s just not my style. Instead I enjoy reading the skilled rants of others. Maryscott O’Connor’s rants on My Left Wing for example are a touchstone for my own emotions about the state of the world. Nobody cuts to the chase like Maryscott.

Another who inspires me is Bob Higgins of Worldwide Sawdust. There is an old cliché that laughing is better than crying and Bob has the singular ability to help me laugh at the absurdity we’re surrounded by on a daily basis.

When it comes to rants I leave it to the professionals and stick to my strengths. Yet today I’m compelled to express my despair and feeling of utter helplessness. The Supreme Court’s recent rulings were a kick in the groin.

Granted, these rulings are hardly a surprise. Electing conservative presidents such as Ronald Reagan or anointing them as was done with George W. Bush has consequences. The Supreme Court is largely why I’ve put my misgivings about the Democratic Party aside and volunteered in efforts to increase voter turnout electing their candidates to the Senate and White House. Sadly, the calamity others and I have warned about and worked so hard to prevent is here.

Associate Justices Samuel Alito, Antonin Scalia, and Clarence Thomas are hell bent on raping this country of every legal protection it can for consumers, employees and minorities. Chief Justice John Roberts is an affable corporatist who shares their ideology while his written opinions put diplomatic spin on their reactionary crusade. Associate Justice Anthony Kennedy, the so-called moderate “swing vote,” is straddling the fence between socially tolerant corporatism and corporate fascism.

Liberal Associate Justice John Paul Stevens is eighty-seven years old. Ruth Bader Ginsburg, appointed Associate Justice by President Clinton in 1993 is seventy-four years old. At sixty-nine, Associate Justice Stephen Breyer is no spring chicken. Neither is Associate Justice David Souter at sixty-eight. These aging four represent a disintegrating minority that only occasionally can hope to nudge Justice Kennedy towards judicious sanity. If one of them dies or retires prior to George Bush’s term expiring, the Supreme Court will be lost for a generation – if it isn’t already.

Scalia is an acerbic seventy-one and so is the fence straddling Kennedy. However, the insipid Thomas is only fifty-nine while Chief Justice John Roberts and Associate Samuel Alito are fifty-two and fifty-seven respectively. So even if my ideal fantasy candidate were elected president in 2008, chances are the best that could be achieved is replacing aging liberals with younger liberals.

It’s doubtful any ground would be gained, especially if a Democrat were only elected to one term. Perhaps, if a Democrat were elected to two terms, we might have the chance to replace Scalia or Kennedy. As history shows however, Democrats are not elected to two terms very often. And something tells me Scalia is the sort who can eat cheeseburgers and drink heavily until he’s 100.

Meanwhile, the campaign for president is leaving me cold. Hillary Clinton, who didn’t read the National Intelligence Estimate prior to her support of Bush’s war, is waging what I would describe as the “West Coast Offense” campaign. She’s completing short passes down the field, delivering well-crafted sound bites and not taking any chances.

Her chief rival, Senator Barack Obama, is opposing her with a “prevent defense.” He’s allowing her to complete short passes as he drops his linebackers and secondary thirty yards from the line of scrimmage and giving her maximum room. He won’t blitz no matter what the score is and for damn sure he won’t challenge Senator Clinton’s judgment about her failure to do her job properly in 2002-03. And on the issue of impeachment for Bush and Cheney, Obama was quoted in USA Today as saying,

“I think you reserve impeachment for grave, grave breeches, and intentional breeches of the president's authority."

I believe if we began impeachment proceedings we will be engulfed in more of the politics that has made Washington dysfunction. We would once again, rather than attending to the people's business, be engaged in a tit-for-tat, back-and-forth, non-stop circus."

I can understand the argument that impeachment isn’t practical in the time Bush/Cheney have left. I don’t agree with it but I can understand it. But Obama's implying this administration isn’t guilty of grave breaches of authority. With judgment like that why should I regard him as any better than Senator Clinton?

Rhetorically, I prefer Senator John Edwards to the other declared candidates. But I can’t follow all his contortions and contradictions about whether or not he read the National Intelligence Estimate prior to casting the most important vote of his one term in the Senate. Nor do I see a viable savior among Joe Biden, Chris Dodd, Mike Gravel, Dennis Kucinich or Bill Richardson. Even worse, I don’t believe Americans have a moral problem with the Iraq War. Americans are fed up with Iraq because we’re losing. Ultimately, our leaders reflect each of us.

I know cynicism undermines activism. I hate feeling cynical. It’s like an insidious toxin ravaging my guts. I’ve registered many voters by telling them apathy and cynicism is what the war mongering agents of status quo greed rely on to perpetuate their outrageous rule. Cynicism doesn't wear well with me.

Perhaps I’m just going through a funk. Supposedly this country is becoming more liberal in its attitudes, especially among the young. And we’ve overcome obstacles such as the Great Depression, Adolph Hitler and avoided Armageddon during the Cold War. History is replete with calamities and the sun still rises everyday.

But when I look at the religious fanaticism gripping this country and the world, the globalization predator that promotes slave labor and poverty, the ticking time bomb of global warming and continued genocide in places like Darfur, hope is elusive. Obama wrote about the "Audacity of Hope" and Senator Clinton married the man from Hope but neither inspires it.

I’m not giving up. I’ll probably volunteer through Citizen Action New York in 2008 instead of carrying a partisan party banner. Best to think locally and act globally. Make a difference where I can. But if there is some kind of light at the end of the tunnel I'm not seeing it right now.