This article, prompted by the testimony of seven of Samuel Alito's then-current and former Third Circuit colleagues at his hearing to be Associate Justice of the United States Supreme Court, examines the merits of federal judges testifying at others' Supreme Court confirmation hearings. While mindful of other approaches to the question of judicial participation in other judicial appointments systems and of their comparative advantages and disadvantages, the author nevertheless concludes that judges threaten judicial independence and judicial ethics principles when they exercise power in the Article III appointments realm. It is not so much a question of judges usurping the Senate’s power to confirm judges when they testify, especially where the Senate has invited their testimony, but, rather, a question of judges inappropriately assisting the Senate in its constitutional “advise and consent” function. Concerns regarding actual and perceived partiality, overt political involvement, and use of prestige of office by judges to benefit others, counsel against judges testifying at others’ judicial confirmation hearings. The author endorses testimony by members of the bar, other professional colleagues, members of civic organizations, and other non-judges. The Senate could learn much, for example, about a nominee’s possession of judicial temperament and expertise by hearing from lawyers and litigants who have appeared before the nominee, as well as from bar association representatives, other civic leaders, and legal academics.
Clark, Mary. “My Brethren’s (Gate) Keeper? Testimony by U.S. Judges at Others’ Supreme Court Confirmation Hearings: Its Implications for Judicial Independence and Judicial Ethics.” Arizona State Law Journal 40 (Winter 2008): 1181-1239.