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Questions raised about having judges testify
San Francisco Chronicle


January 14, 2006

WASHINGTON - When seven current or former federal judges sat before the Senate Judiciary Committee to laud their colleague Samuel Alito, it sparked a debate about the propriety of their appearance in the politically charged setting of a Supreme Court confirmation fight.

Some legal analysts were dismayed.

"It's a really bad idea," said law professor Stephen Gillers, who teaches legal ethics at New York University. "One would have hoped that the judges themselves would have refused to do it, and one would have hoped that Sen. (Arlen) Specter would not have broached the subject.




"Judging is not a political event, but confirming and picking judges is a political event. Judges should not mix up in politics publicly."

Monroe Freedman, a prominent legal ethicist who teaches at Hofstra University in New York, said the judges' testimony - one of the few times on record judges have testified on behalf of a Supreme Court nominee - violated no ethical standards and likely provided unique insights about Alito. But he said the committee still shouldn't have invited them.

"It puts the judges who are called in a difficult position," Freedman said, observing that they would have a hard time saying no. "If Alito does not get confirmed, he's going to be their colleague again. What if they say he's not the best choice for the Supreme Court?"

But another ethical commentator said he saw nothing amiss.

"These hearings have an educational value," said Ronald Rotunda, a law professor at George Mason University in Virginia who supports Alito. He said judicial colleagues can enlighten the public by revealing, for example, whether the nominee gets along with everyone or blows up during legal disagreements.

Specter, R-Pa., the committee chairman, said he had invited the judges to testify and that he and they were satisfied there was nothing unethical or improper about their appearance.

"It takes it out of the political realm," Specter said. "These people have no political agenda."

One committee member, however, saw potential conflicts of interest because Alito would be reviewing his former colleagues' work if confirmed to the Supreme Court.

Sen. Russ Feingold, D-Wis., asked Alito whether he would disqualify himself from considering appeals of rulings by any of the witnesses who testified Thursday. Alito said he hadn't thought about it and would submit an answer after studying the question.

The testimony, which Alito said he had no part in arranging, gave him a chance to bask in others' praise after 2 1/2 days of answering questions from senators on his nomination to succeed the retiring Justice Sandra Day O'Connor.

In hundreds of judicial conferences after court hearings, "I have never once heard Sam raise his voice, express anger or sarcasm or even try to proselytize," said former Chief Judge Edward Becker, who was appointed to the 3rd U.S. Circuit Court of Appeals in Philadelphia by President Ronald Reagan in 1981, nine years before Alito's appointment by President George H.W. Bush. "He is not doctrinaire but is open to differing views."

Former Judge Timothy Lewis, a Washington, D.C., attorney who described himself as a civil rights activist and abortion-rights supporter, said he sometimes disagreed with Alito during seven years on the court but always found him principled and intellectually honest.

"I cannot recall one instance when he exhibited anything remotely resembling an ideological bent," said Lewis, who was also appointed by the first President Bush.

Specter said their appearance was not unprecedented: Former Chief Justice Warren Burger testified in favor of Robert Bork's Supreme Court candidacy in 1987, and individual judges appeared as witnesses for William Rehnquist in 1971, Sandra Day O'Connor in 1981 and Clarence Thomas in 1991. None of the witnesses, however, was then a colleague of the nominee.


Distributed by Scripps Howard News Service,

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