Outlook: The Supreme Court and the Sotomayor Confirmation Hearings

The nin U.S. Supreme Court justices sat to have their official portrait taken Monday, October 31, 2005 at the Supreme Court.
The nine U.S. Supreme Court justices sat to have their official portrait taken Monday, October 31, 2005 at the Supreme Court. (Melina Mara -- The Washington Post)

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Christopher L. Eisgruber
Provost, Princeton University and Author, 'The Next Justice: Repairing the Supreme Court Appointments Process'
Tuesday, July 14, 2009; 12:00 PM

Christopher L. Eisgruber, provost of Princeton University and author of "The Next Justice: Repairing the Supreme Court Appointments Process," was online Tuesday, July 14, at Noon ET to discuss his Outlook article titled "The Highest, Dullest Court in the Land," and the Sotomayor confirmation hearings which began yesterday on Capitol Hill.

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Christopher L. Eisgruber: Greetings! This is Chris Eisgruber, writing from Princeton, New Jersey. I'm pleased to have a chance to chat with you about the Supreme Court appointments process. I'll do my best to answer any questions you might have about "The Highest, Dullest Court in the Land," my article in this weekend's Outlook section. I am also happy to answer questions about the Sotomayor hearings or the Supreme Court appointments process more generally, which is the subject of my book, The Next Justice: Repairing the Supreme Court Appointments Process. I look forward to our exchange!

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Des Peres, Mo.: Greetings, fellow Tiger! Quick query: don't you think the media could have done a better job of explaining the role of the lower courts? Their function is to apply the law and precedents as set down by the Supremes, right? So in ruling against Ricci (which I think was wrong by the way), she and her fellow judges were simply being diligent about applying established law to a new instance, yes? thanks

Christopher L. Eisgruber: Greetings from Princeton! Yes, as Judge Sotomayor has been telling the senators this morning, her job as a Second Circuit judge was to apply relevant precedents, including the Second Circuit's own precedent in the Hayden case. The Supreme Court has much more freedom about how to decide such cases. They are not bound by Second Circuit precedent, and they are free to reconsider even their own precedents. In its own Ricci decision, the Supreme Court admitted that it had to search for a standard: there was no clear, existing doctrine to apply. That said, while some claims about the case have been unfair or misleading, it's obviously a meaty case with difficult and controversial issues. It's not surprising that it has received a great deal of attention (though I think by week's end we're all going to have "Ricci fatigue!").

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Hightstown, N.J.: What would you think of Hillary Clinton as a Supreme Court judge nominee? The job might suit her.

Looking further ahead, wouldn't Obama himself make a great justice?

Christopher L. Eisgruber: Yes and yes. Terrific lawyers, real breadth of experience and judgment, very interesting. But now let me ask you: can you imagine them going through today's confirmation process? Every old political battle (Vince Foster, Whitewater) would be exhumed. Senators would raise questions about stands that Clinton and Obama had taken about, say, abortion--issues that politicians cannot avoid, but that circuit judges remain mum about. It's why I'm skeptical that we're going to see another court of justices -- or maybe even another single justice -- like the ones who decided Brown v. Bd. of Education.

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Kettering, Ohio: I enjoyed reading your Outlook article and you're indeed right in calling the current court boring. As we have ceded our system to career politicians with dubious qualifications for something as important as government, we have gone the other way and have a Supreme Court which is made up of legal technocrats. The process that results in these kinds of appointments may not allow for anything but this kind of candidate. Do you envision a more nuanced person that could break this mold. Perhaps someone that has multiple backgrounds like a modern day Taft?

Christopher L. Eisgruber: It's easy to imagine possible nominees. Bill Clinton thought seriously about Mario Cuomo, Bruce Babbitt, and George Mitchell. A previous questioner suggested Hillary Clinton or Barack Obama himself. And President Obama is rumored to have considered Janet Napolitano and Jennifer Granholm. Problem is, as I said to the Clinton/Obama question, the strategy looks like a loser in a confirmation hearing -- can you imagine Hilary Clinton trying to say all morning that she's impartial, in the way that Sonia Sotomayor has had to do today? It would take something really out of the book to change this -- for example, a Democratic President crossing party lines to appoint someone like Tom Campbell, a Republican gubernatorial candidate in California who happens to be a moderate AND a terrific lawyer.

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Milan, Italy: I am amazed, gobsmacked, as to how many Americans are ignorant on the way the courts operate. Many people do not know about "stare decisis" as a restriction on judicial activism. In addition, the decisions are rendered by the majority of the Court and not by one individual justice. If Justice Sotomayor's position is not accepted by the majority of the sitting jurists, her opinion becomes the lonely "dissent" that law students ignore.

Christopher L. Eisgruber: You're right about the way the Court works. My guess, though, is that most interested Americans realize as much. It has been fun this morning to watch the Post's live feed, alongside chat room comments from Post reporters and readers. Not infrequently, the Post's readers say more insightful (and briefer!!) things about the judicial process than do the senators or the nominee. We now have a confirmation process that does its best to ignore the fact that a judge's values or philosophy matter to the way he or she decides cases--and that makes the process very artificial.

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washingtonpost.com: The Highest, Dullest Court In the Land (Post, July 12)

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Anonymous: I'm a bit confused over what constitutes strict adherence to the Constitution by a Supreme Court. Certainly those justices who handed down the Dred Scott decision and Brown v. Board of Education all felt they were acting in accordance with the Constitution. Some decisions handed down in the past look to us abhorrent in retrospect. Yet some seem to feel that it's easy to say what a "strict constructionalist" would always do. Can you give a couple of examples of decisions which seemed to adhere most strictly to the Constitution or clearly not do so?

Christopher L. Eisgruber: Well, you're right to be confused. "Strict construction" has come to mean "construing the Constitution strictly in accordance with my own views -- whatever those happen to be!" The phrase gets used mainly by interest groups and politicians; judges, liberal or conservative, tend to be a bit more careful. Antonin Scalia, in his book A MATTER OF INTERPRETATION, repudiates the concept. Sam Alito, in his confirmation hearings, got asked by Senator Lindsey Graham whether he was a strict constructionist. Alito began his answer, "Well, Senator, it depends what you mean by 'strict ....'" Graham interrupted, saying, roughly, "Forget it, we're never going to be done with that ...."

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Wokingham, U.K.: Since the deliberations of the Supreme Court are now so clearly and so irretrievably an aspect of the political process in the wider community, operating in effect with liberal and conservative parties, would it not be better to have its members elected rather than appointed and serving for fairly short terms, so that they reflect the political temper of the times?

Christopher L. Eisgruber: Hmmmm. Interesting question. I do not think that electing judges works well -- they become beholden to constituencies that vote for them or pay for their campaigns. But I'm sympathetic to an 18-year term limit. Most other countries have term limits for their constitutional court justices.

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washingtonpost.com: Post Live Coverage: Sotomayor Confirmation Hearing

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New York, N.Y.: Would there have been a way, other than writing a dissent, where Judge Sotomayor could have registered her lack of comfort with the necessity of deciding the appeal to Ricci the way it was decided?

Christopher L. Eisgruber: Yes, quite easily. If she felt that she was bound by Second Circuit precedent, but disagreed with that precedent, she could have said as much in her court's opinion (if the court had written a fuller opinion). Or she could have said so in a concurring opinion. Mind you, she's under no obligation to do that, but it would not have been hard. My guess, though, is that she agreed with the precedents that she was applying--but good luck getting her to answer that question!

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Alexandria, VA: Conservatives want to pillory Judge Sotomayor over the view that empathy in a judge is the same thing as bias. I think this is a very interesting question, because it is discussed directly so little. Mostly, when people think of empathy they are thinking of how the law can ignore the plight of individuals, when they are harmed by the mighty, be they corporations or government. At least as far as corporations are concerned, I understand the courts treat them as fictitious persons, that is as though they were individuals who also need the protection of the laws, just as much as any widow or orphan. When you think about that, why should that be so? Why shouldn't corporations be held to a higher standard, given their greater resources and the immunity of their officers and stockholders to individual lawsuits? I am informed that the answer revolves around an 1886 Supreme Court Case, Santa Clara County v. Southern Pacific Railroad. This decision is said to have given corporations the constitutional rights intended for natural human beings. I read that this view of corporations was either the result of a misinterpretation of this decision or the decision itself was a misreading of the 14th Amendment. In any event, if we want to have real expression of empathy in our courts toward the meek and helpless, we need a new interpretation that the 14th Amendment, that it doesn't apply to corporations. That also would give states and the Federal government much greater freedom to regulate corporations. Maybe the Supreme Court should revisit this issue.

Christopher L. Eisgruber: I think there are really two separate questions here. The first is about the role of empathy in judging. In my view, it's good for judges to have empathy -- hey, all of us should have empathy -- but empathy is not sufficient to decide hard cases at law. That requires something else -- a combination of judgment, values, and experience that make up a judicial philosophy.

The second question is about the treatment of corporations under the Constitution. I agree that we should not assume they have the same rights as natural persons, and it's worth reconsidering such issues occasionally. But corporations include, for example, The Washington Post and the one that I happen to work for, Princeton University. Do these sorts of entities have rights -- for example, to free speech, or to association, or to a freedom from improper searches? I think they do and should.

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Minneapolis, Minn.: Prof. Eisgruber -- Thanks for taking questions today. As I watch the hearings, I wonder if it helps or hurts the process that so many members of the committee are lawyers themselves. What do you think?

Christopher L. Eisgruber: Interesting question, especially coming from a state with two senators, one lawyer and one non-lawyer, on the Committee (congratulations, by the way, on finally having two senators!).

I had not thought about this, but I think that you may be right about this suggestion. The legal discussions very quickly dive "into the weeds"--into technical detail that proves not to be very illuminating. I'm not sure that non-lawyers could do better with their questions: since the senators demand that the nominee repeat over and over again that her own values won't matter, she has no incentive to say anything interesting. But having a greater representation of non-lawyers at the hearing would be interesting--after all, as Chief Justice John Marshall taught us, the Constitution is a very different kind of legal document from a tax code!

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Boston, Mass.: Do you think the Republicans on the committee don't believe every judge has some degree of personal perspective which informs their view of a case or are they just concerned that this Latina perspective is different from their white male perspective?

Christopher L. Eisgruber: I think there are two things going on here. One is a bit of a fiction. We all know that different justices reach different results in hard cases -- if that were not true, none of us would be watching these hearings! So it's nonsense to suppose that anyone can sit on the Supreme Court and be just an umpire, without their values, or their experience, mattering to their jurisprudence. And of course the Republican senators know this.

But Judge Sotomayor got into trouble with her "wise Latina" speech, which, read literally, suggested that wise Latinas had better experience and richer perspectives than other people. I do not think there's any reason to embrace that proposition, and she has, quite appropriately, backed away from it, calling her remark a "failed rhetorical flourish." The combination of Ricci and the "wise Latina" remark make, of course, a potent political cocktail, and the Republicans are understandably enjoying it.

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SW Nebraska: What is so magical about white men that makes them nonpartisan, neutral and eminently fair that is missing among women or minorities?

Christopher L. Eisgruber: Sigh. I wish I had a good answer for that one. I do feel that Judge Sotomayor is getting a bit of an unfair rap on this issue -- there's no evidence that she's been anything but impartial in her long adjudicative career. That said, she did get herself into trouble with the "wise Latina" remark, which seemed to claim that her experience mattered differently from the way a white man's would. And, unfortunately, every nominee, from either side, now gets hammered with these sorts of insinuations. For Roberts and Alito, the sources were their memos as young Justice Department lawyers, rather than their speeches.

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Fairfield, Calif.: Do you think that the negative tone of the questioning by the Republican senators could have future consequences in that this harsh treatment could cause a Justice Sotomayor to resist any centrist or moderate inclinations?

Christopher L. Eisgruber: Interesting question, and something that the senators should think about (and the interest groups, too). I'm sure that Judge Sotomayor, if confirmed, will try to put aside her feelings about the way she was treated. I'm sure that Justices Thomas, Alito, and Roberts try to do so as well. But it takes a very big person to do that. The process is really bruising. Imagine what it's like to have blogs calling you a racist, or articles calling you a bully on the bench, and having to remain calm and civil to people who seem to share those views (or who suggest that you've not been impartial, or faithful to the law, which is just about the most insulting thing you can say to a sitting judge). Not easy.

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West Bend, N.C.: Speaking of Princeton, how do you think Sotomayor is doing vis a vis Alito and Roberts? My take is her performance is inferior to both: read her opening statement, too many notes, does not appear to be very relaxed, cautious body language, not assertive answers.

Christopher L. Eisgruber: Before answering this question, I should point out that Judge Sotomayor is a trustee of Princeton, so I know her a bit. I also met Justice Alito before his nomination. So I may have some biases, because I like them both as people. That said, I have to say that I think Alito, Roberts, and Sotomayor have all done amazing jobs. The rules of this game are pretty tough. First, the nominee cannot get upset or irritable while a senator (for example, Senator Sessions this morning) questions whether she's faithful to the law. Second, she has to demonstrate her competence while never admitting what we all know, which is that on the Supreme Court values do matter and even competent professionals who are faithful to the law will disagree with one another. I answer questions of this kind for a living, and, as she was responding to Senator Sessions, I found myself thinking, "Wow. I'm not sure I could be that patient."

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Antonin Scalia and strict constructionalism: What did he write, in repudiating the concept? Certainly many pols who admire him still use the term.

Christopher L. Eisgruber: Here's what Justice Scalia said:

"Textualism should not be confused with so-called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrepute. I am not a strict constructionist, and no one ought to be--though better that, I suppose, than a nontextualist."

A Matter of Interpretation, p. 23 (Princeton U. Press 1997).

And, yes, wouldn't it be nice if the politicians who admire Scalia could learn that lesson from him! It would not be perfect, but we would be so much better off without that concept.

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Northern Virginia: In all seriousness, our country is going through some real political and policy struggles that will affect us all, such as health-care reform, climate change legislation, appointments still awaiting Senate confirmation and genuinely in question, foreign policy issues of great weight, two wars, and so on. What possible benefit do we as citizens derive from this week-long spectacle and diversion of resources? It's coming across more like a hazing ritual or what an anthropologist might call an initiation ceremony, complete with requisite pain and endurance, but with a predetermined outcome, and that seems like a total waste of time when real work is out there for Senators to do.

Please tell me the good things this actually accomplishes. Maybe I'm missing the side benefits to this wasteful show.

Christopher L. Eisgruber: This is a great question. Here's the way I think about it. We face a lot of tough issues as a country. Not all of these involve the Constitution, but some do. For example, our battle against terrorism has raised questions about civil liberties (can the government spy on Americans? non-citizens?) and about the relationship between the president and Congress. The issue of how to achieve racial justice in our country is a lively and important one, and one that clearly implicates the Constitution. To address these constitutional problems effectively and well, we need not only a good Supreme Court, but also a citizenry that is engaged with the Constitution and committed to continuing debate about it. The confirmation process ought to advance both of those goals. In some ways it does that -- this chat would not be occurring without the confirmation hearings, for example, and the questions you're asking are really high quality. There are lots of other discussions like this going on this week, on radio, in papers, and at offices. That's good. Of course, it would be better if the Senate could get away from the idea that somehow judges (or any of us!) can resolve these questions in ways that are somehow value-free!

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Washington, D.C.: Hello Professor,

It seems to me almost stunning that some of the senators questioning Ms. Sotomayor are willing to imply that only people who are NOT white males are liable to have problems with prejudice toward their own ethnic group, gender, etc., while attempting to interpret the law as judges. Why do you think they believe that they can get away with this? Or are they correct, and they actually can get away with it? Does the "mainstream" in America really still believe that being a white male is the absence of an identity, the default against which all other "identity politics" should be measured?

Christopher L. Eisgruber: This question keeps recurring, and it's definitely a theme of the hearings and the national public debate about the nomination (and, I would say, about race in our country). I agree there's something a bit disturbing about the way this issue is being used by Judge Sotomayor's critics--especially since many of them celebrated Nino Scalia's and Sam Alito's Italian heritage, and Clarence Thomas's diversity and life story. On the other hand, there is a genuine issue in our country about how to think about diversity of experience and values. Do our diverse experiences give us different paths to what we hope is ultimately a shared understanding of law, justice, and life? Or will we also stare at one another across a gap? Do some people have more meaningful perspectives than others? These are real questions; I'm not sure they are being discussed very well in the Senate today, but they account for a lot of the heat in the debate.

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Priince George's County, Md.: As a person of Latin descent, I hope she doesn't get nominated, because it's people like her that patronize us minorities and see us so inferior to whites that we have to be treated better than them to compensate for our inferiority.

Christopher L. Eisgruber: This question represents a different perspective that I think illustrates some of the reason that the issues of identity politics loom so large around this particular nomination. My own judgment, though, is that this concern is not applicable to Judge Sotomayor -- she's been a super-achiever throughout her life, and I do not think that she believes that minorities should be patronized.

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Bethesda, Md.: I agree with West Bend, N.C., regarding her taking notes so much. As I watched the proceedings that was quite noticeable. She doesn't appear to be of the same intellect as the others who have appeared before Congress. Where did she go to school? How well did she do? Was she the recipient of affirmative action?

Christopher L. Eisgruber: She went to Princeton, where I'm currently the provost. While here, she received our highest award for academic and extracurricular achievement, the Pyne Prize, which we give only to one or two students a year.

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Re: Boston, Mass.: Do you think Ginsberg had a better perspective, as a woman, than her male colleagues on the girl student strip search case? In their questions, the male justices compared it to showering in the gym after PE class. Isn't a diversity of personal perspectives good instead of just the predominantly white male judicial perspective (coming from a white male by the way)?

Christopher L. Eisgruber: Most observers believe that Ginsburg's observations had an impact on her male colleagues, who eventually voted 8-1 in favor of the girl's claim. And that makes sense, doesn't it? Researchers have shown over and over again that having a diverse group of inputs tends to make decisions better -- more accurate and more durable -- in all sorts of organizations. Does it make any sense to say that we want decisions made by a bunch of people all of whom are exactly alike and have similar experiences? Isn't it better to have the benefit of the collected experiences of multiple different people and perspectives?

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Abingdon, Md.: This morning on NPR there was some discussion about the ongoing health care debate in Congress when it came up that some members (guess who) wanted to add a number of restrictions that related to abortion. In a similar way, there were apparently protests at yesterday's hearing from anti-abortion groups, although I don't know what the current nominee 'stands for' on abortion-related issues. It seems though that every time we hear about a program/nominee/bill whatever, abortion is front and center in some way. In reality, given the number of cases that go be the SC, how many are related to abortion issues? Sometimes I think we should have an "Abortion Court of the United States" so we can at least pay attention to all of the OTHER issues that come before the court.

Christopher L. Eisgruber: Interesting observation. I agree with you that the abortion issue has dominated our discussion of the Court in unhelpful ways -- and for a very long time. It's interesting, though, that it seems to be taking a back seat in this hearing to other issues -- affirmative action and gun control, for example. Does that suggest a change? I don't know.

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Washington, D.C.: Can't the Post get someone else who is unbiased and objective than you, Mr. Eisgruber? Your answers are so much biased in her favor, that this discussion doesn't seem to be educational at all -- not at all. I thought this would be a really good critical discussion of the appointment process but it's a big disappointment. I'm not sure about her one way or the other, but you come across as very much in favor of appointing her, regardless of her serious racial bias and lack of intellect. I dare you to answer this question.

Christopher L. Eisgruber: I'll accept the dare. I disagree with your premises: agree or disagree with Judge Sotomayor, she's very, very smart (compared to Supreme Court justices throughout history) and she's not guilty of racial basis. Any commentator the Post finds will have to take a stand one way or another on those issues. And, as I've said, while reasonable people can disagree about whether Judge Sotomayor's jurisprudence is attractive, and whether she should be confirmed, I do not think there is a serious question about either her intellect or integrity. But I doubt I'll persuade you! :-)

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Arlington, Va.: Sen. Sessions was previously rejected for a judicial post by the Senate Judiciary Committee based upon what he called joking asides that happened to deal with racial matters. It would seem that he would be empathetic with so-called slips of the tongue such as the "wise Latina" remark that provide little evidence on how a judge would rule in any particular matter.

Christopher L. Eisgruber: Interesting observation. I guess perspectives change depending on where you sit. More seriously, though, I believe -- though I disagree with much of what he has said -- that Senator Sessions and his colleagues are doing their jobs when they vet a nominee rigorously. Appointing a Supreme Court justice for life is a serious matter, and the senate as well as the president have an important role to play.

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Annandale, Va.: Shouldn't anyone nominated to Supreme Court have controversial decisions?

If not, what could they have done to distinguish themselves?

The question is whether the controversial rulings were well reasoned and within the law.

Christopher L. Eisgruber: Yes, and this goes a bit to my points in "The Highest, Dullest Court in the Land." Nowadays, anyone who wants to be a Supreme Court nominee is well advised to trim his or her sails and avoid saying anything too controversial -- in speeches, opinions, or elsewhere. In her book on the Supreme Court, Jan Crawford Greenberg reports that John Roberts was famous for avoiding controversial topics even in private dinners with friends! Is that really the kind of process we want when we choose our justices? I think we're losing something.

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Richmond, Va.: Does it seem ridiculous to you that the confirmation process, in the words of some committee members, should prevent the seating of a nominee that would let their own personal beliefs and background influence their judgment? Being humans, how can anyone realistically expect that not to happen? I'd rather have a thinking, feeling jurist that considers the consequences of their decision on the people they serve rather than a robot that dispassionately applies the letter of the law.

Christopher L. Eisgruber: I would even take this one step further. We know that the Supreme Court only accepts cases about which reasonable lawyers can disagree. Other cases don't make it onto their docket. So, if good lawyers can disagree, what are the justices using to decide those cases? It can't just be the law; by hypothesis, the meaning of the law is debatable. The main problem we're seeing with the process playing out today is that it makes it impossible even to talk intelligibly about this question--even though all of us participating in this chat know that it is a real question.

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Seattle, Wash.: Hi -- an off-the-wall question for you: why does it seem so difficult for the SC justices to look at the camera when their official portrait is being taken? Is it intentional? It's almost comical to look at their faces and guess their emotions.

Christopher L. Eisgruber: Maybe this is a good place to end the discussion. I can't say I've ever noticed this, so I'm going to look more carefully at their pictures in the future. And it could be that, like many of us, they just don't like having their pictures taken. But it could also have something to do with the way we now choose justices. We put a premium on finding professional jurists who have lived private, retiring lives, not dynamic figures from the public stage. My bet is that Earl Warren looked straight at the camera. But I'll have to check.

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Christopher L. Eisgruber: Hey, thanks for your great questions. I have to run, but this has been a lot of fun -- much more fun than going through a confirmation hearing, with better questions, and unlike a nominee, I get to say what I really think! Thank you! -- Chris Eisgruber

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Archive: Transcripts of discussions with Outlook article authors

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