WASHINGTON – In an unusual move, several federal appeals court judges intend to testify as Republican-sponsored witnesses next week at Senate confirmation hearings for their fellow jurist, Supreme Court nominee Samuel Alito.
"They will testify about his approach to judging, as to whether he has an agenda, whether he is ideological, whether he pushes any specific point of view," Sen. Arlen Specter, R-Pa., said Friday. Specter will wield the chairman's gavel at the Judiciary Committee hearings.
The decision also raises the possibility that Democrats on the panel will be able to question Anthony J. Scirica, chief judge of the 3rd U.S. Circuit Court of Appeals, about instances in which Alito participated in cases involving an investment company despite once having promised to avoid them.
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Scirica is one of two active judges on the witness list, which also includes three senior judges and two former members of the 3rd Circuit court who have retired. Among the senior judges is Edward R. Becker, a friend of Specter since his college days.
Committee hearings open Monday for Alito, President Bush's selection to succeed Justice Sandra Day O'Connor.
Alito's conservative credentials, as well as O'Connor's longtime standing as the swing vote on the court on number of issues, have combined to heighten interest in his appointment. The run-up to hearings has become the equivalent of a political campaign, complete with surrogate speakers, televised commercials and public opinion polls.
Republicans disclosed their list of witnesses for the hearings as IndependentCourt.org, a group of abortion rights, civil rights and other organizations opposed to Alito, announced new commercials that criticize him as a threat to individual rights.
"Your rights. Your privacy. Can Samuel Alito be trusted to protect them?" the commercial asks.
With 55 seats in the Senate, Republicans hold the upper hand in their drive to confirm Alito. GOP strategists have said they remain concerned about no more than three members of their own party as they look ahead to a final confirmation vote in the Senate, Sens. Lincoln Chafee of Rhode Island and Maine Sens. Susan Collins and Olympia Snowe.
On the other hand, groups working to maximize opposition to Alito have indicated concerns about the intentions of six or more Democrats, most if not all of them from Republican-leaning states.
Underscoring the concern, Independentcourt.org said that in addition to airing on cable television nationwide, its new ad would run in Arkansas and South Dakota, with three Democratic senators between them.
Similarly, the group said it will run radio ads on African-American stations in Louisiana, which has one Democratic senator, as well as Arkansas.
By custom, the first day of Alito's hearings will consist of prepared speeches — one by each of the 18 members of the Judiciary Committee, followed by the nominee himself. At least two days, and likely more, will be set aside for lawmakers to question the nominee.
Additional witnesses will follow, including the appeals court judges who have worked alongside Alito for years.
Judges customarily go out of their way to avoid off-the-court involvement in any politically-tinged issues, and Specter said that as a rule, they "don't testify as character witnesses."
Judiciary Committee Republicans cited one precedent for a sitting judge to testify on behalf of a nominee for the high court. Then-Chief Justice Warren Burger appeared at hearings for Robert Bork in 1987. Other judges have been witnesses at hearings for lower court candidates, according to Republicans.
In this case, Republicans and Democrats alike agreed the judges' appearance would permit Alito's critics to question Scirica about the automatic system for recusals that is designed to alert individual judges to avoid cases in which they might have a conflict of interest.
Alito participated in a case in 2002 involving Vanguard, the mutual fund company where his investments totaled several hundred thousand dollars at the time.
Democrats on the committee noted that he promised the Senate in 1990, at the time of his confirmation to the appeals court, that he would avoid cases in which the firm was involved.
Alito and the White House have both insisted he did nothing wrong. At the same time, they have offered several explanations: that a computer glitch allowed the disqualification issue to slip through undetected, that Alito's 1990 pledge to stay out of Vanguard appeals only applied to his initial service, and that the promise was "unduly restrictive."