COVERITLIVE.COM

11:43

Fred Barbash-Moderator - Good morning. Our guest today is Christopher Eisgruber, a scholar, the Provost at Princeton and more important for our purposes, a student of the Court (where he clerked for Justice Stevens) and particularly of the nomination process, about which he has expressed some important concerns in his book, "The Next Justice: Repairing the Supreme Court Appointment Process."

Having read the book, I would say that if you are truly interested in what is about to unfold in the process of confirmation, you need this book to fully appreciate how it got the way it is.

Chris will be with us at noon. We invite your questions in advance. Just write your name (not a handle or "guest") , and hit "send."

12:00

Fred Barbash-Moderator - Welcome Chris. And welcome back to all of our readers. I'd like to start the questioning by asking Chris to describe briefly the basic points he makes in his book about the nomination process; why it needs "repair" and how we go about repairing it. Chris, if you want to answer this in two parts, that's fine.

12:00

Chris Eisgruber - Thanks for the question, Fred, and for the opportunity to chat with readers.

12:02

Chris Eisgruber - The book’s main claim is that the appointments process must recognize that political values matter to judging, especially in Supreme Court cases. They matter not because justices ignore the law but because the law requires them to interpret abstract, value-laden concepts such as “the freedom of speech” or “the equal protection of the laws.” The problem with the current appointments process is not that it is political and conflictual—the Founders designed it that way. The problem is that the conflict has become dysfunctional, because based on a misunderstanding of what judges do. To repair it, we need to find ways to talk about the values that matter to judging.

12:03

[Comment From Janeth]
What is your take on the role of a Supreme Court Justice and empathy -- is there any historical precedent or legal one for considering the impact of your decisions

12:05

Chris Eisgruber - I think empathy is a good quality in anyone, including a Supreme Court justice. And I agree with the president that the hardest cases the Supreme Court faces--the ones that make the headlines--will require more from justices than merely a knowledge of law and precedent. But empathy is not enough to make a decision in a tough case. For example, there was a famous free speech case some years ago that involved a KKK group that wanted to march in Skokie, Illinois. I empathize with the Jewish families of Skokie, and not at all with the bigots in the KKK -- but it does not follow that the KKK had no First Amendment right to march.

12:05

[Comment From Britt]
You say the process is "dysfunctional." In what way is it dysfunctional?

12:08

Chris Eisgruber - The process focuses on the wrong questions. Much of it emphasizes scandal, delicts, or "smoking guns" from the past. Should we be upset, for example, about Judge Sotomayor's "latina woman" speech? Was Judge Alito a member of a conservative alumni group, and does it matter? And there's a lot of discussion about whether nominees will bring their values to bear on cases. Of course they will! Every justice, liberal or conservative, to serve on the Court has done so. The question is how they will do so--what kinds of concerns they think the Court should address, and what kinds get left to the political process. That crucial question gets lost in the empty rhetoric about activism and restraint.

12:09

[Comment From Jen]
Professor Eisgruber. I've read your book. Thanks for doing this. As I read it, you accept the idea that this is basically a political process, and that ideology is most relevant to it. Why is it then that most of these nominees always deny they have an ideology?

12:11

Chris Eisgruber - You're right -- I do accept that the process is political. That's no accident -- the framers designed it that way. If we wanted an apolitical process, we might have used something like a civil service exam, such as some other countries use as part of the judicial selection process. Asking the Senate to confirm presidential nominations is a guarantee of a political process. (Let me answer your question in a second paragraph).

12:14

Chris Eisgruber - Nominees deny that they have an ideology because it has become a "safe" strategy. If you admit that you have an ideology, you have to defend it. And if the ideology is an extreme or immoderate one, it may be hard to defend. What senators need is a process that refuses to permit such answers. My recommendation is that, if they have real evidence that a nominee has extreme views, they put the burden on the nominee to explain those views away -- to say something genuine about what their judicial philosophy is.

12:14

[Comment From Maria]
Why do you call the rhetoric about activism "empty."

12:17

Chris Eisgruber - "Activism" has become a word for judicial decisions that a senator disagrees with. Nearly anything can be called activist. For example, a controversial case from a couple of years ago involved a public works project in New Haven (the case is called Kelo). New Haven had seized the land of some homeowner. The homeowners claimed that New Haven had taken their land unconstitutionally. The five relatively liberal justices on the Court said that the taking was constitutionally permissible. There was an outcry. "Activism!" people said. But the liberals were leaving the issue to the political process. If the conservatives had prevailed, liberals would have shouted, "activism." But the conservatives would have replied, in complete good faith, that they were just enforcing the Constitution as they understood it.

12:17

[Comment From Tom]
I see that you clerked at the court. Do the justices ever complain about the nomination process? It seems like a nightmare experience and I wonder if any have ever expressed their views

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