NY Times Editorial: Fairness in the Alito Hearings

The New York Times
Editorial
Fairness in the Alito Hearings
Published: January 11, 2006

Judge Samuel Alito Jr.'s confirmation process has barely begun, and his supporters are already complaining that it has been unfair. There have certainly been troubling aspects to this hearing, but so far they have been in Judge Alito's favor. The news that federal judges intend to testify in support of his nomination is both unusual and unfortunate, as are reports that a Republican member of the Judiciary Committee may have helped prepare Judge Alito for the hearings. So are some comments by Senator Arlen Specter, the committee chairman, who seems to be using his position to spin things Judge Alito's way.

Senator Specter, Republican of Pennsylvania, has invited seven current and former federal judges, led by Judge Edward Becker of the United States Court of Appeals for the Third Circuit, to testify for Judge Alito. It is extraordinary for judges to thrust themselves into a controversial Supreme Court nomination in this way, a move that could reasonably be construed as a partisan gesture. The judges will be doing harm to the federal bench.

Their planned testimony does not appear to violate judicial canons, but it brushes up against them. Canon 2B of the Code of Conduct for United States Judges says that judges should not testify voluntarily as character witnesses. The official commentary warns that serving as a character witness "injects the prestige of the judicial office into the proceeding" and "may be misunderstood to be an official testimonial."

The canons allow judges to give their opinions about judicial nominees when directly asked by an appropriate body. But by taking sides in a highly partisan political fight, the judges will be causing many of the ills the canons warn against. Their testimony's greatest value will almost certainly not stem from the facts the judges provide, but from the prestige they hold as members of the federal judiciary.

Ethics rules aside, Stephen Gillers, a New York University law professor, says the judges are making "an awful decision as a matter of policy." In future confirmation battles, both sides will no doubt try to line up judges to testify just to keep things even. Judge Becker and his colleagues are beginning a process of politicizing the federal judiciary that all of us will most likely come to regret.

According to a report in The Wall Street Journal, Lindsey Graham, a South Carolina Republican who serves on the Judiciary Committee, joined a session at the White House last week to prepare Judge Alito for the hearings. (Senator Graham concedes that he spoke with Judge Alito in the White House's executive offices, but denies that their conversation was to help prepare the judge.) This report casts doubt on Senator Graham's ability to exercise his committee duties impartially.

Securing the judges' testimony is not Senator Specter's only unfortunate move. When he questioned Judge Alito yesterday about Roe v. Wade, he seemed to be working harder than the nominee himself to make the answers come out in a politically palatable form.

And after the first day's proceedings, Senator Specter criticized the Democratic senators' opening statements, and laid out a false standard for how Judge Alito should be evaluated. "I think it is important that the American people who are viewing these hearings understand that what is being said by the senators doesn't constitute evidence," Senator Specter said, adding, "The evidence comes from Judge Alito."

It would no doubt help Judge Alito if the Senate were somehow required to consider only his testimony during these particular hearings. But senators have the right to consider his full record of legal opinions and statements about the law - and to read them into The Congressional Record. Senator Specter has accused the Democrats of acting as if the hearings are a trial, but he is the one who has tried to apply rules of evidence that may apply in court, but don't in the Senate.

From the moment Judge Alito was nominated, his supporters have tried to present him as a victim of everything from special interest groups to anti-Italian bias. Judge Alito has strong support from the White House, and from the party that controls the Senate. The biggest concern in these proceedings is not whether they will be fair to him, but whether they will be fair to the American people, who will have to live with the results.


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