“It’s regrettable, a very poor precedent,” said Eldie Acheson, who as a top Clinton Justice Department official shepherded nominees Ruth Bader Ginsburg and Stephen Breyer through the confirmation process. “It puts them in the middle of an executive and congressional branch function. As judges and as a court, this is not their business.”
The judges two in active service, three on senior status, and two retired are testifying at the invitation of Judiciary Committee Chairman Arlen Specter (R-Pa.), who played a role in the appointments of many of them. The active judges testifying are Chief Judge Anthony Scirica and Judge Maryanne Trump Barry; they did not return phone calls seeking comment.
“They will testify as to his approach to judging, as to whether he has an agenda, as to whether he is ideological, whether he pushes any specific point of view,” Specter said in a statement explaining his invitation. “I don’t know to what extent they can comment about where he stands on the spectrum, but that is up to them.”
Their appearance also may cause some awkwardness for Alito, who, if confirmed, will be reviewing the rulings of judges who are singing his praises in public. By contrast, both Justice Clarence Thomas and the late Chief Justice William Rehnquist recused themselves in cases brought by lawyers who testified against them at their confirmation hearings.
Senior 3rd Circuit Judge Edward Becker, a longtime friend of Specter who helped recruit his colleagues for their testimony today, dismissed these 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,” said Becker, who will testify Thursday. “I’m not going to characterize his jurisprudence.”
Becker said he and Alito ruled in 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.
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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.”
Becker also said it was unremarkable that judges offer recommendations when their colleagues are up for new jobs. “Where do you think the American Bar Association gets all their information for their ratings?” Becker said. “I’ve been an Article III judge for 35 years and one month, and I can’t tell you how many times the ABA has asked me about people.”
Judges have testified before on behalf of Supreme Court nominees. According to research offered by 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. Walter Craig, a district court judge from Arizona, also testified on behalf of Rehnquist when he was named an associate justice in 1971.
Northwestern University law professor Steven Lubet, an ethics expert, says judicial canons pertaining to federal judges prohibit them from testifying as “character witnesses,” but that is directed at judges testifying for defendants in criminal trials. Another canon, however, allows judges to testify at hearings that relate to the legal system or the administration of justice. Lubet thinks the value of the judges’ testimony outweighs “any slight appearance problem.”
Lubet also said Alito, if confirmed, would not be required to recuse in cases ruled on by judges who testify at his hearing Thursday. Such a rule would also make it impossible for lawyers and law professors several of whom will also testify Thursday to appear, “thus denying the Senate much relevant information.”
But for several years, Rehnquist recused in cases brought to the Court by James Brosnahan of Morrison & Foerster, who testified against him in 1986. And Thomas recused in cases brought 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 between the two situations, however. “Judges don’t really have a personal stake in their cases in the same way that a lawyer does,” said Lubet. “And 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.”
Tony Mauro can be contacted at [email protected].