Should Judges Testify at a Colleague's Senate Confirmation Hearing? The Separation-of-Powers Concern Raised by the Alito Hearings

By MICHAEL C. DORF

Monday, Jan. 16, 2006

For the most part, last week's Senate confirmation hearings for Supreme Court nominee and U.S. Court of Appeals Judge Samuel Alito adhered to a now-familiar script. The judge affirmed his commitment to deciding cases according to the law, rather than his personal views. He endorsed the last century's landmark Supreme Court decisions invalidating racial segregation, mandating the principle of one-person-one-vote, and finding a right of privacy in the Due Process Clauses of the Fifth and Fourteenth Amendments. And, while acknowledging the importance of adhering to precedent in general terms, he explained that the need to avoid pre-judgment on an issue that could return to the Court prevented him from expressing an opinion on whether the Constitution protects a right to abortion.

Yet there was at least one unusual feature of the hearings that warrants further examination, quite apart from whether or not one believes Judge Alito should be confirmed. Among the witnesses testifying in favor of Judge Alito's confirmation were seven current and former judges of the U,S. Court of Appeals for the Third Circuit, on which Judge Alito serves. To a one, these judges praised Judge Alito's integrity, intelligence and fair-mindedness.

A New York Times editorial and other opinion pieces have questioned whether the (active) judges who testified thereby violated Canon 2B of the Code of Conduct for United States Judges, which states, among other things, that "A judge should not testify voluntarily as a character witness." Although one of the testifying judges, Edward Becker, explained that he and his colleagues were appearing before the Senate Judiciary Committee "to testify to fact, not to opinion," that distinction does not appear to be salient in the Canon, which forbids testimony about character, even if that testimony consists of factual statements about character, rather than statements of opinion about character.

Of course, the judges who testified on behalf of Judge Alito will not, and should not, face disciplinary charges. The question for future confirmation hearings is whether the testimony of the nominee's judicial colleagues serves the public interest.

In my view, it does not, although difficulties arise in distinguishing the testimony of judges from the testimony of other sorts of colleagues, associates and friends.

Why Other Judges' Testimony Appears Highly Relevant

On its face, the testimony of judges who have served with a nominee seems extraordinarily relevant to the question of whether the nominee should be elevated to the Supreme Court. Indeed, other than the nominee's written opinions and other public statements, it is difficult to conceive of more valuable information.

The judges who serve together on a court of appeals work closely over the years and observe one another firsthand, both on the bench and in conference when they decide how to rule. If a nominee is prone to fits of temper or bias, or if he or she appears unprepared, or in less than full command of the issues, his or her colleagues will be able to bear witness to these failings. And conversely, the nominee's colleagues can testify--as Judge Alito's colleagues testified--to his or her professionalism.

Moreover, the Senate confirmation process already includes ratings by the American Bar Association (ABA), which interviews the colleagues of sitting judges for just the sort of information that the past and current Third Circuit judges testified about with respect to Judge Alito. If that information can enter the process indirectly, what's wrong with airing it directly?

The Difference Between Private Comments and Public Testimony

For one thing, there may be a difference between what judges are willing to say about their colleagues in private versus in public. Judges sitting together over the course of years develop personal friendships and loyalties to one another that understandably make them reluctant to criticize one another publicly.

Indeed, that is one reason why the ABA gathers information from sitting judges in confidence. A judge who has seen fits of temper, expressions of bias, or evidence of unpreparedness in a colleague may feel a duty to reveal these facts privately, even though she would not go public.

One effect of testimony by a nominee's colleagues could be to undermine the ABA screening process. Now that the Third Circuit judges have testified for Judge Alito, the next nominee--if he or she is a sitting judge--will be expected to produce similar testimonials from colleagues. Those colleagues, in turn, will feel obligated to praise the nominee publicly, and having done so, or in anticipation of doing so, they may not be willing to provide contrary (but accurate) information to the ABA in private.

To be clear, there is no indication that the judges who testified on behalf of Judge Alito were anything but truthful, and they apparently said exactly the same thing before the Senate Judiciary Committee and the ABA--which gave Alito its highest rating. But the precedent thus set could nonetheless have a damaging effect on the ABA's ability to gather completely accurate information in the future.

Are Judges Different From Other Witnesses?

Nonetheless, were the only argument against judicial testimony in favor of an appointee the one I have just laid out--namely, that it could undermine the ABA rating process--the practice of judges testifying might still be justifiable.

After all, judges are not the only people who could be inclined to speak in glowing terms of a colleague or friend in public while expressing reservations in private. For example, some of Justice Alito's former law clerks provided testimony that was similar in tone and content to that of his Third Circuit colleagues. I have no reason to doubt what they said, but if any of a nominee's former clerks did have negative information to relate, they would not likely do so publicly. And that holds true for anybody closely associated with a nominee, not just colleagues and clerks.

Yet the ABA rating system seems to function adequately notwithstanding the fact that some of the non-judges to whom the ABA speaks also offer testimony for (or against) the nominee. So if the ABA rating system works notwithstanding the testimony of lawyers and other colleagues, it can probably work well enough notwithstanding the testimony of judges.

Nonetheless, judges are different from other witnesses in that their testimony ""injects the prestige of the judicial office into the proceeding," as the official commentary to Canon 2B explains. Here, then, is a distinct danger of testimony from judges concerning a colleague: Senators and the public at large may give them too much credence.

The Separation of Powers Concern

There is another, greater danger that arises out of judges testifying in Senate confirmation hearings: The practice threatens the separation of powers.

Critics of the Supreme Court have long argued that the Justices' controversial decisions on such hot-button issues as abortion, gay rights and school prayer are rooted in political, rather than strictly legal, considerations. Courts, the critics say, should stay out of politics.

Yet there is no more politically charged event concerning the judiciary than the appointment of a Supreme Court Justice. Indeed, Presidents and Senators routinely campaign for office on a platform that includes promises about the sorts of Justices they will appoint.

Justices serve for life and can make important decisions that are irreversible except through the extraordinarily difficult procedure of constitutional amendment. Accordingly, it is perfectly appropriate for Presidents and Senators to inject some measure of democratic accountability into the judiciary at the front end--when a Justice is appointed--for afterward, there will be no such opportunity. That is why Presidents and Senators alike want to know about a potential Justice's judicial philosophy.

Of course, some politicians and commentators argue that the Senate's role in confirming Justices is simply to scrutinize professional qualifications, and not vote against an otherwise qualified nominee because of substantive disagreement. But others think that the substance of a nominee's judicial philosophy is a legitimate basis for voting against confirmation. The very question of whether the Senate should make a substantive judgment about a nominee's likely decisions is itself a question fraught with politics.

Thus, when current and former federal judges appear before the Senate Judiciary Committee to say that a nominee should be confirmed because, judicial philosophy aside, the nominee is highly qualified, the judges are necessarily taking sides on a political issue in a highly political forum.

The Judges' Testimony at the Alito Hearings: Confirm Him, Politics Aside

And that is exactly what the testifying judges did in the Alito hearings. Judge Becker claimed that he was making no "normative . . . judgments," but he went on to say that Judge Alito "is not an ideologue" and that his approach to the law is similar to Judge Becker's own "mainstream or centrist" approach. The point of such testimony appeared to be to reassure the Senators that any disagreements they might have with Judge Alito on matters of substance were sufficiently small to be outweighed by his professional qualifications.

Other judges went even further. For example, former Judge Tim Lewis, a self-described liberal, related that when Justice Thurgood Marshall retired, Marshall praised Chief Justice Rehnquist as the best Chief Justice with whom he had served. Likewise, serving with Judge Alito, Judge Lewis testified, had made clear to him how two judges with divergent views of the law could hold each other in high esteem. The not-so-subtle moral of this story was that even a Senator with Thurgood Marshall's views about the Constitution should vote to confirm someone with William Rehnquist's views (and vice-versa), because both were professionally and temperamentally qualified.

Indeed, the implicit subtext of every judge or former judge who spoke on Judge Alito's behalf was this: "I may disagree with Judge Alito's rulings sometimes, but given his character, temperament and intellect," he should be confirmed. A Senator would be well within his or her rights to take this approach, but, to repeat, the choice between this conception of the Senate's role and a conception in which judicial philosophy matters, is an inherently political one.

Thus, ironically, federal judges are especially unsuited to testify before the Senate about the relevance of judicial philosophy. With their constitutional guarantee of life tenure, and with Congress forbidden to lower their salaries, federal judges are supposed to be institutionally separate from democratic politics, and the question of whether a nominee's judicial philosophy ought to matter turns out, in the end, to be a political one

During the hearings, Judge Alito expressed respect for the principle that the Supreme Court should generally adhere to its precedents. But the courts are not the only institution of government that follows precedents. The Senate, too, reveres its traditions. In light of the danger that judicial character witnesses pose to the separation of powers, the testimony of Judge Alito's colleagues should set no lasting precedent in the Senate.


Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University in New York City. His 2004 book, Constitutional Law Stories, is published by Foundation Press, and tells the stories behind fifteen leading constitutional cases. His next book, No Litmus Test: Law and Politics in the Twenty-First Century, will be published by Rowman & Littlefield in March 2006.

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