As John and I discussed below, a group of Judge Alito’s colleagues on the Third Circuit testfied in his favor today. It was powerful stuff. First, this group is extremely well situated to know what kind of Justice the nominee would be. The Senate Dems never tired of pointing to cases where other Third Circuit judges had disagreed with Alito’s opinions. But if his colleagues nonetheless hold him in high regard, the fact that they sometimes disagree with him is irrelevant. Second, some of the judges who testified were female or African-American. The Dems had tried to paint Alito as anti-black and anti-female, or at least as unsympathetic to members of these groups. Judges Lewis and Barry helped refute that notion.
The Dems essentially boycotted the appearances of the Third Circuit judges. And Senators Leahy and Feingold went so far as to suggest that the Third Circuit judges were acting unethically by testifying. They argued that, since Alito might review their decisions as a Supreme Court Justice, the judges could be seen as currying favor through their testimony.
I’m no expert on legal ethics, but this argument strikes me as absurd. The traditional panels that testify in these matters typically include lawyers who practice before the Supreme Court. These lawyers have a greater stake in the outcome of future cases they may argue before Alito (either in the Supreme Court or the Third Circuit) than do judges whose rulings Alito might review. Indeed, judges have no personal stake in the outcome of Supreme Court review, although presumably they’d rather be affirmed than reversed.
The Dems have set up a panel in opposition to Alito that will include veteran Supreme Court advocate Lawrence Tribe. Using their twisted logic, one could argue that Tribe has a stake in opposing Alito to curry favor with Supreme Court Justices who think their view of things will tend to lose out if Alito is confirmed.
The Senate Dems have become so unprincipled that they can’t acknowledge it when others act in a principled way. Thus, they found themselves characterizing the principled bipartisan testimony of the Third Circuit judges as possibly unethical. There is no well that the Dems won’t try to poison.
JOHN adds: It would have been different, of course, if the Dems could have found a colleague willing to testify against Alito. Any such person would have been a “whistle blower.” A “whistle blower” is anyone who says something that Democrats want to hear.
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