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Third Circuit Judges to Testify for Alito:
Seven current and former Third Circuit colleagues of Judge Alito have been scheduled to testify on Alito's behalf to give the Senate an "insider's view" of how Alito decides cases. The list includes Judges Edward Becker, Maryanne Trump Barry, Ruggero Aldisert, Leonard I. Garth, John Gibbons and Timothy Lewis. From the Washington Post:
  [Judge] 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."
  On a personal note, I am particularly eager to hear Judge Garth's testimony. I had the tremendous honor of clerking for Judge Garth in 1997-98, and he knows Judge Alito not only as a colleague for 15 years on the Third Circuit but also as one of his former law clerks (1976-1977, I think).
Justin (mail):
The real story here is that not a single acting Democratic appointed judge (also, not a single judge appointed after the time that parties would nominate the best of the other side, post Bork), will speak up in his defense. I think that's pretty shocking. I'm curious as to what the Clinton appointees think of Alito.

Aldisert is an LBJ appointee whose very conservative, right? I've read some of his statements in the news.

Also, I'm interested in what they have to say. Nobody's arguing that Alito isn't brilliant or a nice guy. The question is specifically one of ideology. Surely, Edward Becker and Emilio Garth aren't going up there and calling Alito a liberal, right?
1.7.2006 1:40pm
Marc O. DeGirolami:
Judge Barry was put on the Third Circuit by President Clinton.
1.7.2006 2:04pm
Marc O. DeGirolami:
Garth, Leonard I. (3d Cir.)

Garza, Emilio M. (5th Cir.)
1.7.2006 2:19pm
ThirdCircuitLawyer (mail):
Justin,

You are not well informed about the Third Circuit. Aldisert was a liberal Johnson appointee; Barry is a centrist Clinton nominee; Gibbons was a Nixon nominee in the same sense that Harry Blackmun was a Nixon nominee (he was a hero of the left, and would occasionally feed to Brennan); and Tim Lewis is a self-described liberal who also aligned himself with the Democrat-appointed judges. Becker and Garth are both moderate conservatives of the Nixon-Eisenhower mold.
1.7.2006 2:43pm
Justin (mail):
Whoops. I thought she was a Reagan nominee. Turns out she was both.

I don't know enough about Gibbons to know their politics, but if Garth and Becker are moderate conservatives, then O'Connor was a communist.
1.7.2006 2:58pm
Justin (mail):
whoops. His politics.

It'll be interesting what Trump Barry has to say.
1.7.2006 2:59pm
ThirdCircuitLawyer (mail):
Justin,

Huh? Becker and Garth are almost exactly in the O'Connor mold. Would you be interested in explaining the basis for your claim that "if Garth and Becker are moderate conservatives, then O'Connor was a communist"?
1.7.2006 3:22pm
ThirdCircuitLawyer (mail):
Oh, and here is an article about John Gibbons, who argued Rasul v. Bush for the petitioners Rasul.
1.7.2006 3:49pm
apu (mail):
I'll second "ThirdCircuitLawyer" 's point that noting that Judge Gibbons was appointed by a Republican tells you little about him. He argued against this administration in the Supreme Court on behalf of the Gitmo detainees; his only other Supreme Court argument (I believe) was a 2001 death penalty case in which he argued vigorously against AEDPA, a law signed by Clinton, but mostly associated with Republicans. He's been a leading voice in NJ against the death penalty, for legal services for the poor, and for battered women since leaving the bench a decade or so ago.
1.7.2006 3:55pm
42USC1983 (mail):
Justin wrote: "Aldisert is an LBJ appointee whose very conservative, right?"

Which of his opinions have you read that led you to conclude that Aldisert is a "conservative"?

Justin also wrote: "I've read some of his statements in the news."

Oops, nevermind!
1.7.2006 4:12pm
Jim Rhoads (mail):
It should also be noted that the Third Circuit is considered by most judicial scholars to be one of the more liberal circuits.

Justin must be getting most of his information from our friends at PFAW and NOW.

For a more balanced view see Howard Bashman's comments here. Howard's Third Circuit practice is substantial.
1.7.2006 7:15pm
steve priest (mail) (www):
The strategy, if you want to call it that by those opposing Alito, is weak. It's so weak I call it "The CAP Strategy Against Alito is a Byrd CAP Strategy"

On the issue that they attack, Alito seems very progressive based on his stewardship of the "Boundaries of Privacy in American Society" task force. Things must be looking mighty bad in the anti-Alito camp for this to be their strategy. It looks for all I can tell to be an effort to Bork him from within the republican party like Meirs. That's not going to happen, and it is telling of just how weak the argument against Alito is from those who oppose and are organized against his nomination..............................
1.7.2006 11:14pm
JG:
If judicial ethics rules prevent judges from testifying as character witnesses at trials, why is it any better to do so at a Senate hearing? I'm not making any ethical accusations (yet) -- I'm genuinely curious as to how the motivating factors behind the character witness rule apply differently in this context.
1.8.2006 11:14am
Justice Fuller:
JG,

I don't follow your question. What ethics rules do you have in mind, and how are trials similar to Senate confirmations?
1.8.2006 11:33am
arthur (mail):
I wonder about Justice Alito reviewing decisions by his character references once he's on the bench (and also reviewing decisons by other judges who refused to volunteer as his witnesses). It doesn't seem right.
1.8.2006 2:12pm
Marc O. DeGirolami:
What a collection of odd questions.

Arthur: I'm not sure that anyone "refused to volunteer." Do you know that anyone did? Perhaps only some judges volunteered, and those are the ones testifying. Or, perhaps more volunteered and only a selection of those are testifying. Or, perhaps only some judges were asked to testify (i.e., those who know Judge Alito well) and those are the witnesses on his behalf. In any case, do you really think that Judge Alito, were he confirmed, would keep track of who did and didn't testify and let that affect his decision on a case? What basis could you possibly have to make such a claim?

JG: Do you really believe that Congress would have asked 3d Circuit judges to testify, in an extremely public hearing such as this, if such testimony would in and of itself violate an ethical rule?
1.8.2006 3:12pm
Steve Lubet (mail):
Canon 2B of the Code of Conduct for United States judges provides that a judge "should not testify voluntarily as a character witness," but I don't think that provision applies here. The provision really contemplates criminal cases, where character witnesses are called for the defense; it does not contemplate congressional hearings, where the witnesses (judges or otherwise) are providing necessary information about a nominee.

Canon 4B is more to the point, providing specifically that a judge may testify at a legislative hearing on matters concerning the law, the legal system, or the administation of justice.

As to whether Alito would later favor judges who testified on his behalf -- that reasoning would prevent any lawyer or law professor from testifying in favor of a Supreme Court nominee, thus denying the Senate much relevant information.

Bottom line: There is absolutely nothing wrong with sitting judges testifying in support of a Supreme Court nominee.
1.8.2006 3:54pm
Steve Lubet (mail):
Canon 2B of the Code of Conduct for United States judges provides that a judge "should not testify voluntarily as a character witness," but I don't think that provision applies here. The provision really contemplates criminal cases, where character witnesses are called for the defense; it does not contemplate congressional hearings, where the witnesses (judges or otherwise) are providing necessary information about a nominee.

Canon 4B is more to the point, providing specifically that a judge may testify at a legislative hearing on matters concerning the law, the legal system, or the administation of justice.

As to whether Alito would later favor judges who testified on his behalf -- that reasoning would prevent any lawyer or law professor from testifying in favor of a Supreme Court nominee, thus denying the Senate much relevant information.

Bottom line: There is absolutely nothing wrong with sitting judges testifying in support of a Supreme Court nominee.
1.8.2006 3:54pm
WB:
To answer questions/respond to comments:

1. According to the FJC bio of Judge Alito, Prof. Kerr is correct that 1976-77 was the year of his clerkship for Judge Garth.

2. Jim Rhoads, I always thought that the Third Circuit was generally considered a centrist/slightly right-of-center circuit. For a short time, Judge Sloviter was the only Republican-nominated active judge on the 3d Circuit. Although Clinton had the opportunity to nominate several judges, I wouldn't say that McKee, Rendell, Barry, Ambro and Fuentes have made the Third Circuit into a liberal circuit. Who says it's liberal, and why do they say so?

3. Marc DeGirolami, Arlen Specter, not Congress, asked the judges to testify. Senator Specter is pretty sharp, but I don't think that the fact that Congress allowed something to happen means that it's necessarily legal and ethical. JG has a decent point, and I think that an adequate answer to his question would either point to the actual rules or explain the difference between character witnesses at trials and witnesses at confirmation hearings. I have two rough guesses along those lines.

First, judges are not better suited than other lay people to testify about the character of a party to litigation, so it's no great loss to society if judges can't testify to character at trials (note that the rule doesn't prevent them from testifying to facts--it would be a great loss to society if a judge was the only person who witnessed a crime and couldn't testify). On the other hand, judges are better suited than others to testify about the qualifications of a candidate for a judgeship.

Second, if judges testify as character witnesses, that might improperly sway juries into thinking that the judge is testifying as a judge rather than as a lay person who happens to be a judge. If the witness judge works with the presiding judge in some way, it may also look like an improper attempt to influence the outcome. The writers of the rules decided that the cost of these potential pitfalls is not worth the benefit of having a few more people available as character witnesses. In a confirmation hearing, however, Senators are less likely to be improperly swayed into thinking that the judge testifying is an authority to whom they must answer in the same way that a jury might.

That said, Judge Becker is one of the sharpest judges on the bench, and is very attuned to these sorts of things. I doubt if he would have agreed to testify if the rules prohibited it.
1.8.2006 4:06pm
WB:
And it appears that Steven Lubet answered the question while I was typing my comment.
1.8.2006 4:07pm
Marc O. DeGirolami:
WB--

You make persuasive arguments explaining possible rationales (I emphasize possible, for you have not provided any evidence that your arguments amount to what was in fact in the drafters' heads in distinguishing the situations) for the difference between judges testifying as character witnesses in litigation and judges testifying as character witnesses before Congress.

Arlen Specter is, in fact, a member of Congress, and a high ranking one at that. It may be true that he was not speaking for every single member of Congress when he asked the judges to testify (I don't know this), but it's quite possible that he was speaking for more than simply himself in making the request (do you know that he was not?). In any event, I still maintain that it would be quite striking indeed if Congress were to ask federal judges to do something patently illegal or unethical according to judicial canons. And, in fact, Steven Lubet has provided us with the rule confirming my suspicion. So there's nothing "indecent" about my reaction, to use your word.
1.8.2006 4:36pm
Marc O. DeGirolami:
Or inadequate, for that matter!
1.8.2006 4:41pm
jdub:
Judge Timothy Lewis (retired), altho' a Bush I appointee (I believe) was pretty liberal, and is an African-American man who can testify (contrary to claims by certain liberal groups) that Judge Alito is not biased against blacks. He also has recounted conversations with the late Judge A. Leon Higginbottham (another African-American 3d Cir. judge) who spoke extremely highly of Judge Alito.

The Third Circuit is proof positive that it doesn't matter who appointed you. Keep in mind there are very few hard-core conservatives in Philadelphia or NJ. (Don't really know Delaware, but parts of PA are like Alabama.) So, having clerked on the 3d Cir., it actually is a pretty moderate circuit compared to others.
1.9.2006 1:01pm
Zicci (mail) (www):
Judges CANNOT speak on the behalf of Alito, TOTALLY WRONG!
Chpter 1. Code of Conduct for United States Judges:
Canon 7: A JUDGE SHOULD REFRAIN FROM POLITICAL
ACTIVITY
A.A judge should not:
(2)make speeches for a political organization or
candidate or publicly endorse or oppose a
candidate for public office;

DOESN'T THE SUPREME COURT SERVE AS A "PUBLIC OFFICE" OFFICIALLY!!??HOW CAN CONRESS ALLOW THESE JUDGES TESTIFY?
1.12.2006 4:20pm