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Judge Garth on Alito:
I hope you'll indulge a former law clerk, as I can't help but point out Judge Garth's testimony in favor of Samuel Alito. (Click here, select Day 4, Afternoon Session, and go to the 1:16 mark.) Note that the Judge was wearing his favorite bow tie -- blue with white polka dots -- and that he couldn't help but add light-hearted asides about Judge Aldisert's age, Judge Barry's looks, and the offerings at Ward's Coffee. Classic.
George Gregg (mail):
Orin,

Something I've been interested in as I've been watching the hearings is the ethics and dynamics of "coaching" and bringing "character witnesses". The issue of coaching is a potentially troubling one, especially if members of the Judiciary Committee themselves have been coaching Alito (e.g., Sen. Graham?). But for the purposes of this thread, I'm curious to hear your (or others') views on the dynamics of bringing forth character witnesses such as Judge Garth.

With folks such as Judge Garth, I can see how they serve as a character witnesses and so their testimony is germane to the hearing. However, given the fact that Judge Alito is up for confirmation to a SCOTUS position, it would seem to be extremely unlikely that any Judge would come forward to offer any countervailing opinions of Alito, even if they had them. I would imagine Alito would have to be some truly terrible ogre before a member of the judiciary would go on record at one of these hearings and castigate him.

This could be my misunderstanding of the collegial (though sometimes strained) relationship among the judiciary. But if it's generally accurate, doesn't that mean that the process/culture artificially screens out any possible countervailing character witnesses? And if so, doesn't that dilute substantially the weight of positive character witnesses among the judiciary?

That's not to say, of course, that Judge Garth is in any way incorrect in his praise. It's just to wonder whether it can be taken as a definitive statement on Judge Alito, given what could be a cultural suppression of countervailing opinion from his colleagues. But perhaps you have other thoughts about this and, if so, I'd be interested in learning what you or others think.
1.13.2006 8:26am
Jay:

That's not to say, of course, that Judge Garth is in any way incorrect in his praise. It's just to wonder whether it can be taken as a definitive statement on Judge Alito, given what could be a cultural suppression of countervailing opinion from his colleagues.

For this reason, I imagine senators and others treat comments from other judges in much the same way that judges hiring clerks treat letters of recommendation. Only in the rarest of cases will someone say something negative. The real test is the strength of the positive comments -- can the recommender point to specific facts relevant to the candidate's qualification, and does he or she do so in a manner that seems lukewarm or glowing?
1.13.2006 9:21am
Paul.H (mail):
I am interested in the claims of several of the Democrat Senators that Alito must now recuse himself if any matters adjudicated by any of the panel members reach SCOTUS.

After Alito reaches the Supreme Court, how can he gain by ruling favorably on such a case? I don't see any conflict of interest. And, the most obvious point against such conflicts is that the judges aren't a party to the legal dispute. They don't have anything to gain or lose by how SCOTUS decides.

Are there any recusal experts here?
1.13.2006 10:02am
Hoya:
Surely recusal can't be called for. Would Alito have to recuse himself in the consideration of the constitutionality of a bill sponsored by Kennedy, just because Kennedy insinuated that Alito was a bigot during this hearing? Come on. The requirements for recusal must be much more demanding than that one was in some way benefited by or harmed by a interested party in the past.
1.13.2006 10:11am
Hoosier:
The VC posters on this thread have TOTALLY missed the most important point.

Judge Garth's bowtie is pretty close to the "Churchill Dot" that Winston Churchill made famous during the battle of Britain: Hard to find pictures of him from this period wearing any tie but this, or a similar black and white bow.

I have one. I wear it when I want to feel Churchillian. I bet it intimidated Kennedy.
1.13.2006 11:03am
Henry Woodbury (mail):
However, given the fact that Judge Alito is up for confirmation to a SCOTUS position, it would seem to be extremely unlikely that any Judge would come forward to offer any countervailing opinions of Alito, even if they had them

This concern hasn't stopped hundreds of Law Professors from opposing Alito, some of whom, I think it can be assumed, may actually present before him in the future.

This panel of judges is clearly self-selecting; I think it is significant that so many of Alito's peers are so happy to do so.
1.13.2006 11:26am
Tyrone Slothrop (mail) (www):
I am more comforted by Judge Becker's testimony this morning than by anything else I've heard about Judge Alito to date.
1.13.2006 11:38am
Eric Muller (www):
Party on, Judge Garth. (Wayne's World reference.)

Incidentally, the judge for whom I clerked, Lee Sarokin, was Judge Garth's best friend in the courthouse. They lunched together all the time. And Sarokin was one of the most liberal judges in the country at the time. It's interesting to wonder whether Judge Garth would have testified for Judge Sarokin in the same circumstance.
1.13.2006 11:57am
Nunzio (mail):
I thought it was cool how Judge Garth mentioned that Alito dissented from a recent Garth majority opinion on an ERISA case. It seemed like a bit of a good-natured dig while making a nice point about Alito.
1.13.2006 12:32pm