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3rd Circuit Colleagues Trumpet Alito

In an unusual move, seven past and present appellate judges testify at his Senate hearing, sparking some controversy.

January 13, 2006|Richard Simon | Times Staff Writer

WASHINGTON — The Supreme Court nomination of Samuel A. Alito Jr. received a boost Thursday from a group that usually stays out of such politically charged confirmation battles -- his fellow judges.

Seven of Alito's current and former colleagues on the U.S. 3rd Circuit Court of Appeals appeared before the Senate Judiciary Committee to testify on his behalf.

"The Sam Alito that I have sat with for 15 years is not an ideologue," said Senior Judge Edward R. Becker. "He is a real judge, deciding each case on the facts and the law, not on his personal views whatever they may be."

The judges' appearance, though unusual, was not unprecedented. Still, it generated some controversy.

"I'm a little troubled by it," said Sen. Russell D. Feingold (D-Wis.).

Sen. Patrick J. Leahy of Vermont, the committee's top Democrat, declined to ask the judges any questions, saying that if Alito is confirmed to the high court, he is likely to rule on appeals of his former colleagues' decisions.

In a conference call organized by groups opposed to Alito's confirmation, two retired federal judges also questioned the wisdom of sitting judges testifying on behalf of a Supreme Court nominee.

One of those retired judges, Patricia Wald, who served on the Court of Appeals for the District of Columbia Circuit, said a judge's participation in the hearing could raise questions about their impartiality.

In addition, she said, the public testimony is inevitably "a one-way street" because judges would be extremely reluctant to speak critically of a colleague in public.

But Sen. Arlen Specter (R-Pa.), chairman of the Judiciary Committee, defended the judges' testimony, saying that the "insights which you judges have to Judge Alito's background is unique."

Sen. John Cornyn (R-Texas) added: "These are federal judges with lifetime tenure.... There is nothing Judge Alito can do for them."

Senior Judge Leonard I. Garth, for whom Alito worked as a law clerk in 1976 and 1977, told the committee via video hookup: "I can tell you with confidence that at no time during the 15 years that Judge Alito has served with me and with our colleagues on our court

"Nor has he ever expressed any personal predilections about a case or an issue or a principle that would affect his decisions."

Describing the private conferences in which the appellate judges deliberate, Becker said, "I have never once heard Sam raise his voice, express anger or sarcasm, or try to proselytize."

Disputing criticism that Alito's rulings have favored businesses over the "little guy," Senior Judge Ruggero J. Aldisert cited Alito's immigrant father and said: "I am certain that the idea of protecting the rights of the so-called little guy is in the genes of Samuel A. Alito Jr."

Becker responded to the furor over Alito's 1985 job application for a post in the Reagan administration -- in which he wrote of his strong belief that "the Constitution does not protect a right to abortion" -- by saying that whatever Alito's views may have been 20 years ago, "his judging does not reflect them."

Five of the current and former judges were appointed to the appeals court by Republican presidents -- two by Richard Nixon, two by Ronald Reagan and one by George H.W. Bush. The two others were appointed by Democrats Lyndon B. Johnson and Bill Clinton.

Earlier on Thursday, Feingold asked Alito whether he would recuse himself from appeals of cases involving the judges who testified on his behalf.

Alito said that he could not immediately answer the question.

"That's not a question that I've given any thought to before this minute," he said.

Times staff writer James Gerstenzang contributed to this report.

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