Thursday, June 18, 2009

Book Excerpt: 'The Next Justice'

Continuing NationalJournal.com's occasional series on books about the confirmation process, we've pulled out some uniquely applicable portions of a new book released this month, The Next Justice, by Princeton provost Christopher Eisgruber.

Eisgruber, a former New York University law professor and clerk for Justice John Paul Stevens, argues in the book that, contrary to popular belief, senators should not use the hearings to "interrogate" judicial nominees about their records, since the heavy lifting on researching nominees' records should have been done earlier. Instead, he says, the hearings should be an opportunity for senators to "refine their understandings, to describe their view of the candidate's judicial philosophy, and to convince the public of that view's validity."

The following excerpt is from Chapter 8, "Should The Senate Defer?" An excerpt from Chapter 9 will follow tomorrow.

Although questioning the nominee might be the most obvious way for senators to assess his or her judicial philosophy, hearings have been strikingly ineffective for that purpose. With the singular exception of the Bork hearings, Senate questions to nominees have consistently failed to produce illuminating information. Senators and their staffs have demonstrated tremendous ingenuity in crafting questions designed to break free from the "subtle minuet" of the confirmation hearings, but their efforts have failed. That is not the senators' fault; no question can compel an unwilling nominee to disclose his or her judicial philosophy. So we seem to be at an impasse: senators have an obligation to assess a nominee's judicial philosophy, but no set of questions can compel a nominee to disclose his or her philosophy. What are senators to do?

The answer is simple: they should rely less on hearings and more on the kinds of evidence that presidents use. If senators must use the hearings to prove that a nominee is unsuitable for confirmation, they are at a disadvantage by comparison to the president.... Presidents have been able to assess judicial philosophies quite well by relying on two kinds of information: publicly available sources, such as judicial opinions, and private communications, such as the informal conversation between Clarence Thomas and Boyden Gray. Presidents do not need hearings to figure out where their potential candidates stand.

Of course, presidents do interview candidates before nominating them, and one might suppose that the candidates are more frank with the president than they are with the Senate (though one wonders exactly what David Souter said to George H. W. Bush when they met in 1990).

Nearly all of this information is available to senators too. They have access to all the nominees' published writings, and their staffs can analyze these materials as scrupulously as can the president's. The writings may provide senators with everything they need to assess a candidate's judicial philosophy. Indeed, political scientists have used mathematical models to show that preconfirmation newspaper clippings about a nominee provide a reliable basis for projecting how the nominee will vote in ideologically contested cases after taking a seat on the Court.

Senators also have access to informal, private information about the nominee, though not necessarily the same information that the president has. For example, Thomas was undoubtedly more guarded in conversations with Washington liberals than when talking to Gray, and Gray was not about to pass along the nominee's confidence. Yet Thomas crossed paths with people of many different views in the nation's elite legal community.

Washington is a surprisingly small town, and it is likely that, in most cases, opposition senators will have information comparable to what the president has about a nominee. That was true even of the somewhat reclusive Souter, a New Hampshire man about whom neither party seemed to know very much. On the other hand, the president probably had more information than did the Senate about Harriet Miers, who was a personal friend of his, but who had a relatively low profile in Washington and the national legal community.

Senators thus usually enter the confirmation process with a pretty good understanding of the nominee's judicial philosophy. In other words, not only are the hearings ill-adapted to the discovery of a nominee's judicial philosophy (because the nominee, unless he or she is a moderate, has no incentive to disclose it); they are also unnecessary for that purpose. The function of hearings must therefore be different from what people commonly suppose. They are not usually about discovering an unknown judicial philosophy. Instead, the hearings provide senators with an opportunity to refine their understandings, to describe their view of the candidate's judicial philosophy, and to convince the public of that view's validity.

But this is a tough assignment. If senators believe that the candidate's judicial philosophy disqualifies him or her from serving on the Court, the candidate will have no incentive to cooperate in this exercise. The nominee will either refuse to answer questions or will answer so as to suggest that he or she is a moderate rather than an extremist. Either way, the nominee's remarks will be easily accessible and understandable to the public. As a result, those remarks may acquire more persuasive weight than they deserve. Unlike senators, ordinary citizens have no access to private, informal information about the nominee and have neither the time nor the skill to plow through the nominee's published writings.

Nor are senators likely to be able to put private communications before the public. Suppose a senator has learned that an acquaintance of the nominee's once heard him, at a dinner party, express contempt for the right recognized in Roe v. Wade. Should the senator ask the nominee whether he ever said such a thing? The question will seem frivolous. The nominee will either deny making the statement or refuse to answer the question, and the acquaintance is unlikely to want to be quoted publicly.

The conventional wisdom about the importance of hearings is thus quite wrong. Questioning nominees is not a good way to identify their judicial philosophy. Senators should investigate a nominee's judicial philosophy in the same way that presidents do: on the basis of the public and private information that is readily available to them without interviewing the candidate. For this purpose, interrogating the nominee is neither necessary nor particularly useful. Indeed, if opposition senators play along with the fiction that the confirmation hearings are a means to discover a candidate's judicial philosophy, they are bound for trouble, because they will not be able to "discover" information or even confirm what they already know.

(Excerpt courtesy of the author and Princeton University Press.)