Sitting Judges to Speak on Alito's Behalf

Senators expect a tougher hearing for Samuel A. Alito Jr. than that faced by John G. Roberts Jr.
Senators expect a tougher hearing for Samuel A. Alito Jr. than that faced by John G. Roberts Jr. (By Melina Mara -- The Washington Post)
By Charles Babington
Washington Post Staff Writer
Saturday, January 7, 2006

Seven current and former federal appellate court judges will testify on behalf of Supreme Court nominee Samuel A. Alito Jr. next week, an extraordinary role for the sitting judges who will be dealing with a colleague who could be positioned to uphold or overturn their rulings.

Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) said yesterday that he agreed to allow the judges -- all current or retired colleagues of Alito's on the Philadelphia-based U.S. Court of Appeals for the 3rd Circuit -- to address the panel because they can speak to some of the most contentious issues surrounding the nominee.

"They will testify about 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 an interview.

Specter will chair the weeklong confirmation hearing, to start Monday, in which Democrats have vowed to press Alito aggressively about his antiabortion statements, support for a powerful executive branch and other matters. Senators from both parties predict the confirmation battle for Alito to be tougher than that for Chief Justice John G. Roberts Jr., who was approved 78 to 22 by the Republican-controlled Senate in September. The judges are tentatively scheduled to appear on Thursday. The Democratic and Republican sides have chosen 15 witnesses each.

Specter's office said some district court judges have testified on behalf of Supreme Court nominees, but there is no record of appellate judges doing so. The Senate historian's office said its research agreed with Specter's findings, but it noted that there was not enough time on short notice to extend the research to the Supreme Court's earliest days.

But there is no prohibition on such testimony, Specter said, and the seven judges are well-positioned to comment on Alito's "approach to judging" because they joined him in discussing and voting on hundreds of cases. "I think the judges' panel will liven things up," Specter said.

Specter said he sees no conflict of interest for either Alito -- who, if confirmed, would review the rulings of the judges expected to praise him next week -- or for the judges, who might want warm ties with a Supreme Court justice able to rule on their decisions that are appealed to the nation's highest court.

Their favorable testimony would be in character, given their long-standing relationship with Alito, Specter said. "If confirmed, he would be one of nine people reviewing their cases," and their testimony to the Judiciary Committee would be unlikely to sway him at all, Specter said. Alito and the judges have "a confluence of interests," not a conflict, he said.

One of the seven sitting and retired judges may be drawn into Democrats' questions about Alito's truthfulness. Anthony J. Scirica, chief judge of the 3rd Circuit, has defended Alito's role in a ruling on a 2002 case involving the Vanguard Group investment firm after Alito had told the Senate in 1990 that he would avoid such cases. Alito and his supporters say he acted properly, but Democrats have said they will press him about the various explanations he has given in the matter.

The Democrats' witnesses, announced Thursday, include a lawyer involved in the Vanguard case.

The other judges scheduled to testify next week are Edward R. Becker, Maryanne Trump Barry (sister of developer Donald Trump), Ruggero J. Aldisert and Leonard I. Garth. They will be joined by retired judges John J. Gibbons and Timothy K. Lewis. All were appointed by Republican presidents, except Aldisert, who was named by Democrat Lyndon B. Johnson.

Becker is a longtime friend of Specter and Alito, and was key to assembling the group, Specter said. He said he asked Becker last year whether he "would feel comfortable testifying" for Alito. Becker eventually agreed, Specter said, and then recruited the others.

Specter said the seven might not limit their remarks to Alito, but use the televised forum to explain judicial issues that get blurred in partisan fights over nominees. A judge takes an oath "to decide cases on the law and the facts," not on political beliefs, Specter said. "They can explain that."

The Democrats' 15 witnesses do not include sitting judges. Specter said it did not occur to him to tell Democrats of his plan to invite the appellate judges. Sen. Patrick J. Leahy (Vt.), the Judiciary Committee's ranking Democrat, declined comment yesterday.

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