Supreme Fictions

The Next Justice
Repairing the Supreme Court Appointments Process
Christopher L. Eisgruber
Princeton University Press, $27.95, 272 pp.

Does anyone have anything good to say about the absurd process by which we select Supreme Court justices? Confirmation hearings have become a mix of Grand Guignol and hide-and-seek. The debates surrounding potential justices are not only ideologically polarized, but filled with crude and misleading claims about what Supreme Court justices do or should do. And the candidates themselves have contributed to the debacle, making silly but politically savvy claims in their confirmation testimony about how they would act as justices.

In The Next Justice, Christopher L. Eisgruber shows how we got to this point—and then, as his book’s subtitle promises, proposes a way out. Eisgruber, who is the provost of Princeton University and former director of its Program in Law and Public Affairs, frames the problem by showing how John Roberts used inspired nonsense to help get himself confirmed as chief justice. Supreme Court justices, Roberts argued at his confirmation hearing, are like baseball umpires, who “don’t make the rules, [but] apply them.” Torturing the analogy further, he vowed to “remember that it is my job to call balls and strikes and not to pitch or bat.” Like an umpire, he would remain steadfastly impartial. “I come before the committee with no agenda,” he assured the senators. “Judges are not politicians.”

As Eisgruber conclusively demonstrates, such statements are indeed nonsense....

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