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The Case for Full Disclosure En Route to High Court

Process Suffers When Nominees Are Tight-Lipped, Princeton Provost Argues

During his 1987 confirmation hearings, Reagan Supreme Court nominee Robert Bork openly shared his judicial views — including his objections to the 1973 Roe v. Wade decision — with members of the Senate Judiciary Committee. His candor not only landed him a 58-42 defeat in the Senate, but scared the high court nominees who followed into reticence, Princeton University provost Christopher Eisgruber argues in “The Next Justice: Repairing the Supreme Court Appointments Process.”

Nominees’ reluctance to discuss their values and judicial philosophy has turned confirmation hearings into a “subtle minuet,” with nominees answering the minimum they feel is necessary to get confirmed, Eisgruber writes in “Next Justice.” Senators are left with two unappealing options: risk being seen as overly partisan, or vote to confirm a nominee without a good idea of his or her views.

Eisgruber, a former law clerk to Supreme Court Justice John Paul Stevens and U.S. Circuit Judge Patrick Higginbotham, discussed his new book at a recent breakfast at the Brookings Institution.

In an interview, Eisgruber argued that contrary to many nominees’ assertions, “values do matter to judging.” He called “unbelievable” a claim by Supreme Court Justice Clarence Thomas during his confirmation hearings that justices had to “strip down like a runner,” blocking out their own opinions and values before deciding a case.

“The court is deciding major issues of political justice,” Eisgruber said. Personal values and philosophy, he wrote, often play a larger role in Supreme Court decisions than in those at lower judicial levels, because many cases that reach the high court involve constitutional clauses that are vague or ambiguous.

Presidents aren’t helping the situation, Eisgruber added.

“The nomination process has increasingly focused on judges whose views are dogmatic,” he said. “Presidents — particularly on the Republican side — focus on ideologically pure candidates.”

Pledges by presidential candidates — for example, GOP hopeful and former New York Mayor Rudy Giuliani — to nominate “strict constructionists” are merely code for plans to pick conservatives, Eisgruber said.

“Who could be against a strict constructionist? That’s different, though, from a dogmatically conservative judge,” he said. “A large segment of the population is uncomfortable with ideologically extreme justices. Some might understand ‘constructionist’ as code for ‘conservative.’” Eisgruber noted that Supreme Court Associate Justice Antonin Scalia — often touted as an ideal justice by conservatives and Republican presidents alike — has denied that he is a strict constructionist.

Eisgruber said former President Bill Clinton broke with the trend by looking for justices who were moderate. This, the Princeton provost argued, “reduced friction” during their confirmation hearings. Both Clinton appointees — Associate Justices Ruth Bader Ginsburg and Stephen Breyer — were confirmed by wide margins. The Senate accepted Ginsburg, 96-3, and Breyer, 87-9.

Ultimately, Eisgruber said, Senators should place the burden on the nominee to prove during confirmation hearings that he or she is not an ideological extremist. Currently, he said, Senators often feel a need to justify a vote against a nominee by finding some incident of poor personal or judicial judgment. This results in “gotcha” hearings that delve into whether a nominee watched pornographic movies or failed to recuse himself at the appropriate time.

Instead, Eisgruber writes, Senators should expect nominees to be candid. If nominees demur too much, or if their answers identify them as ideologues (either liberal or conservative), Senators should feel no obligation to confirm them. He added that in the event a Democrat wins the 2008 presidential election, “Republican Senators would have the same obligation as their Democratic counterparts [currently have] in vetting nominees.”

“We must understand what a [nominee to serve as] justice actually believes,” Eisgruber said.

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