Wednesday, January 11, 2006
Some Alito coverage this morning
First, I was surprised to read that the New York Times has concerns:
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."
John Podhoretz approaches the hearings from a different angle:
PERHAPS Democrats on the Senate Judiciary Committee could rally to defeat Samuel Alito's nomination to the U.S. Supreme Court. But to do so, they'd have to conduct themselves like intelligent adversaries, rather than behaving like a gaggle of boorish, clownish, hectoring geese.
In the course of Biden's questioning, Alito spoke for maybe four or five minutes, while Biden ran on for 25. This is not how you defeat a formidable adversary.
Nor do you defeat a smart and sober judge like Alito by looking down at a list of questions and reading through them as though you were a court stenographer asked to read back someone else's testimony. That's what Herb Kohl, the Wisconsin Democrat, did. Absurdly.
And you don't defeat a clever and substantive judge like Alito by archly demanding to know why on earth he would rule that it would be acceptable to strip-search a 10-year-old, as both Patrick Leahy of Vermont and Ted Kennedy of Chappaquiddick (oops, sorry, Massachusetts) did. Because when you do so, you give Alito the opportunity to knock one out of the park against you, as Alito did:
"Senator," Alito said to Leahy, "I wasn't happy that a 10-year-old was searched. Now, there wasn't any claim in this case that the search was carried out in any sort of an abusive fashion. It was carried out by a female officer . . . [But] I don't think there should be a Fourth Amendment rule . . . that minors can never be searched. Because if we had a rule like that, then where would drug dealers hide their drugs? That would lead to greater abuse of minors."
The New York Sun reports that Alito is looking pretty good:
Supreme Court nominee Samuel Alito's largely technical responses to questions on contentious legal issues such as abortion and about his ethical judgment and past professional associations deflated Democratic hopes that they could put the veteran jurist on the defensive.
His Republican supporters, meanwhile, were emboldened to predict that one of the most hyped hearings in memory will turn out to be a dud.
No big bombshells yet. Alito has thus far seemed quite unflappable despite the expected hectoring.
5 Comments:
By 
TigerHawk, at
Wed Jan 11, 11:29:00 AM:
Most of the NYT's editorial was beyond absurd. For example: "So are some [troubling] comments by Senator Arlen Specter, the committee chairman, who seems to be using his position to spin things Judge Alito's way." You're shittin' me. A Republican committee chairman is trying to spin things in the direction of a Republican nominee? Is there no end to GOP perfidy?
But I actually agree with the Times that it is a bad idea to have Alito's colleagues testify. We do not need to turn every confirmation battle into a war of testifying judges, and that is what will happen if these judges testify now. Retired judges is one thing, but I agree with the Times that having sitting judges testify will open up a huge and revolting can of worms.
By Charlottesvillain, at
Wed Jan 11, 04:58:00 PM:
Weird. your comment fails to show up on the permalink.
Yes, the Times may have a point here. I'm not sure why the Repubs think this is a particularly good idea. They should have the votes either way, barring a "pubic hair on a coke."
By 
, at
Wed Jan 11, 09:06:00 PM:
"Character witness" is a term of art. It is someone a criminal defendant calls to speak about his reputation for good characteristics relevant to the alleged crime. The prosecutor can rebut with its own character witnesses if the defendant calls them. To suggest that a character witness is anyone who "testifies" about someone's "character" is completely and deliberately disingenuous.
I also like the usual quotation from the Times's legal ethics expert, Stephen Gillers. Can they once mention that Mr. Gillers is the guy who wrote an op-ed piece for the Times in 2004 arguing that the Constitution wasn't an obstacle to Bill Clinton's running for vice president with Kerry?
By Cassandra, at
Thu Jan 12, 05:20:00 AM:
Nice post. I have completely missed out on the Alito hearings due to work commitments. I haven't even read up on them - I've pretty much been crashing after work at night. Thanks - this was great.
The comments have been behaving strangely for a while now. It's driving me nuts. I've had whole comments disappear - I commented before on one of your posts and it never did show up... at all.
By Georg Felis, at
Thu Jan 12, 01:12:00 PM:
You must realize that the entire purpose of this event, from the Left’s point of view, is to throw a vast quantity of Negative garbage at the nominee. Anything and everything they can lay their hands on, even if they have to make it up. A year from now (November) the only thing most Democrat voters will remember is the allegations, not the vindication. And any controversial (by Democrat standards) decision handed down from here on will be blamed on that “Right-Wing Nut” put on the court by Bush, and isn’t it about time we had a Real Judge put on the court by a Rational Party (i.e. the Democrats)
I also agree that having sitting judges testify as character witnesses is a bad idea, no matter what political affiliation they are. In addition to Canon 28, can you imagine if a case that went through one of their courts wound up before the Supremes? The call for recusal would be deafening, since he is a Republican appointee.
