January 12, 2006
Association's Chancellor Expresses Concerns to Senator Arlen Spector Regarding Alito Hearings
PHILADELPHIAAlan M. Feldman, Chancellor of the Philadelphia Bar Association, expressed his concerns to Senator Arlen Specter in a letter today regarding the appearance of Third Circuit Court of Appeals judges and senior judges on behalf of Supreme Court candidate Samuel A. Alito Jr. at U.S. Senate Judiciary Committee confirmation hearings.
Presenting testimony from Judge Alitos colleagues will be understood by some to be a partisan activity, which politicizes not only the testifying judges, but arguably impairs the judicial independence of all federal courts, stated Feldman in his letter, which also cited Canon 2 (B) of the Code of Judicial Conduct as well as Formal Opinion No. 15 of the American Bar Association Committee on Professional Ethics.
Feldman emphasized to Specter that the Philadelphia Bar Association was not taking a position on Judge Alitos confirmation, but rather respected the American Bar Association Judiciary Committees recommendation of Judge Alito as well-qualified to hold the position of Associate Justice of the U.S. Supreme Court.
Stressing the need for an independent judiciary as well as future complications that could arise from such testimony, Feldman urged Senator Specter to reconsider his invitation to Alitos colleagues to appear at the hearings.
Below is the full text of the letter.
January 12, 2006
Senator Arlen Specter
711 Hart Senate Office Building
Washington, DC 20510
Dear Senator Specter:
As Chancellor of the Philadelphia Bar Association, I would like to express our concern about your apparent intention to present testimony from Judges of the Third Circuit Court of Appeals at the confirmation hearings of Supreme Court Candidate Samuel A. Alito, Jr.
As you know as well as anyone, the independence of the judiciary is critically important to our free and democratic form of government. For that reason, judges must always be separate from the political process. Accordingly, judges are forbidden from testifying voluntarily as character witnesses by Canon 2(B) of the Code of Judicial Conduct. Canon 2B of the American Bar Association's Code of Judicial Conduct also states in commentary as follows:
The testimony of a judge as a character witness injects the prestige of his office into the proceeding in which he testifies and may be misunderstood to be an official testimonial. This Canon, however, does not afford him a privilege against testifying in response to an official summons.
Similarly, Formal Opinion No. 15 of the American Bar Association Committee on Professional Ethics cautions that character testimony from a Judge lends the judicial position and dignity of the testifying jurist to the party for whom the favorable testimony is offered.
Presenting testimony from Judge Alitos colleagues will be understood by some to be a partisan activity, which politicizes not only the testifying judges, but arguably impairs the judicial independence of all federal courts. In future confirmation hearings, it could encourage a battle of the judges, with each camp assembling teams of judges in favor of, or against, particular candidates. It is not difficult to imagine other unseemly complications which could arise from the introduction of what at least has the appearance of the kind of character testimony that is prohibited by the Code of Judicial Conduct.
Please understand that the Philadelphia Bar Association is not taking a position with respect to Judge Alitos confirmation. Indeed, we recognize and respect the fact that the American Bar Associations Judiciary Committee has deemed him to be well-qualified for the position of Associate Justice of the United States Supreme Court. Further, we do not in any respect question the good motives or unassailable integrity of the federal judges who are proposing to testify. We do, however, believe that permitting such testimony would impair judicial independence, and would be a serious mistake.
As a government official who has perhaps done more than any other to emphasize the importance of an independent judiciary, I urge you to reconsider your invitation to Judge Alitos colleagues to testify in this highly charged and political confirmation process.
Alan M. Feldman