“It’s regrettable, a very poor precedent,” says Eldie Acheson, who, as a top Clinton Justice Department official, shepherded nominees Ruth Bader Ginsburg and Stephen Breyer through the confirmation process. “It puts [the judges] in the middle of an executive and congressional branch function. As judges and as a court, this is not their business.” She did not think the idea was ever considered for Ginsburg and Breyer, both of whom could have been vouched for by fellow judges on the D.C. and 1st circuits, respectively.
“Because presidents now draw Supreme Court nominees almost exclusively from the federal appeals courts, testimony from the nominee’s colleagues may well become a fixture of the modern Supreme Court confirmation process,” laments Carl Tobias, a University of Richmond law professor.
Apart from concerns about injecting judges into an intensely political event, other problems could arise if the practice becomes routine. It is not hard to imagine that someday a nominee’s colleagues might split over his or her qualifications, leading to a panel of dueling judges testifying both for and against a nominee. Even in the Alito hearings, since only two sitting judges testified (the rest who spoke were senior or retired), it could be asked why the other 10 active judges on the 3rd Circuit stayed home.
Democratic senators hinted at another concern as they made it clear they were displeased with the judicial testimony. Apparently out of respect for Specter and the judges, they kept their objections muted, but when it was ranking Democrat Patrick Leahy’s turn to ask the judges questions, the Vermont senator declined, stating: “If Judge Alito becomes a member of the Supreme Court, he’ll have to rule on appeals from their decisions. And so I think, rather than create a difficulty for them or for Judge Alito if he is confirmed, I think I will not avail myself of a chance to ask questions of this unprecedented panel.” Sen. Richard Durbin (D-Ill.) also demurred, citing Leahy’s words, and Sen. Russ Feingold (D-Wis.) earlier indicated he was not keen on the idea.
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Steven Lubet, a law professor at Northwestern University and an ethics expert, says Alito, if confirmed, would not be required to recuse in cases ruled on by the judges who testified. Lubet notes that such a standard would also preclude testimony from lawyers and law professors several of whom appeared at Alito’s hearings denying the Senate much relevant information. For example, attorney Carter Phillips of Sidley Austin Brown & Wood testified on behalf of Alito, a longtime friend. Phillips is a veteran advocate before the Court who will, in all likelihood, appear frequently before Alito if he is confirmed.
For several years after his 1986 confirmation hearings, the late Chief Justice William Rehnquist recused in cases brought to the Court by James Brosnahan of Morrison & Foerster, who testified against him. And Justice Clarence Thomas recused in cases filed by William Moffitt, who testified against him on behalf of the National Association of Criminal Defense Lawyers. While the justices did not explain their actions, neither Brosnahan nor Moffitt at the time could think of any other reason for the recusals.
Lubet sees a difference in the two situations, however. “A justice’s anger at someone who testifies against him is more palpable than a judge’s gratitude toward someone who testifies for him. They are not symmetrical.”
Senior 3rd Circuit Judge Edward Becker, who testified for Alito and helped recruit his colleagues for their joint appearance, dismissed the concerns and defended the judges’ participation.
“We are fact witnesses who can talk about his temperament, his integrity, his intellect, his approach to the cases and to the law,” Becker said before his testimony. “I’m not going to characterize his jurisprudence.” Becker said he and Alito ruled on more than 1,000 cases together and the insights he gained about Alito during deliberations are valuable to the Senate. “If I don’t know the guy, nobody does,” he said.
Senators are too independent to be “bowled over” by the judges’ testimony, Becker added. Asked if the prestige of the judiciary was being used to advance political ends, he replied, “I don’t think so.”
Though the Alito hearings marked the first time that several judges have testified for a nominee, individual judges have done so in the past, according to the Judiciary Committee. The late Chief Justice Warren Burger, by then retired, testified for Robert Bork in 1987, and four years later, Jack Tanner, a district court judge from Washington state, testified for nominee Clarence Thomas.
What did Alito himself think of his colleagues’ appearance? He did not seem enthusiastic about their testifying, though perhaps it was because, as a famously reserved man, he might have found their fulsome praise somehow embarrassing. When Durbin asked him if having the judges testify was his idea, Alito said “no.” Durbin then inquired whether anyone had asked him if it was a good idea, and again Alito’s answer was a curt “no.”
Tony Mauro can be contacted at [email protected].