Date: January 12, 2006
Senator: Cornyn
Topic:
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SPECTER: Thank you, Senator Sessions.
Senator Cornyn?
CORNYN: Thank you, Mr. Chairman.
I feel like I need to say "may it please the court."
Thank you all for being here. It's very important, I believe, to have testimony from people that know this nominee.
We've heard a lot of wild and crazy, from my perspective, accusations that have been unsubstantiated, from people who don't know this nominee as well as you do.
I want to just try to eliminate one concern that's been expressed. And I've heard a hint of criticism about these judges appearing as witnesses in this hearing, supposing that perhaps there will be some conflict of interest if your decisions would be appealed to the United States Supreme Court and Justice Alito had to sit on it.
I haven't noticed any lack of a willingness to disagree with him while you were colleagues on the 3rd Circuit. That seems highly unlikely. And for the suggestion that this is somehow unprecedented, to have judges, former and current sitting judges, testify, Mr. Chairman, I have a list of examples where sitting members of the federal judiciary have testified during the confirmation proceedings of another federal judge. And I would ask that that be made a part of the record.
SPECTER: Without objection, it will be made a part of the record.
CORNYN: Canon 4B of the code of conduct for U.S. judges provides, "A judge may appear at a public hearing before a legislative body..."
There's some ellipses there.
"... on matters concerning the law, the legal system and the administration of justice to the extent it would generally be perceived that a judge's judicial experience provides special expertise in the area."
And I regret, your honors, that you somehow get sucked in to the contentiousness and some of the unfairness that occurs sometimes -- the innuendo that sometimes arises when you're a witness in a contested proceeding.
And, as you can tell, these hearings have become -- and the confirmation process -- an adversarial process.
The unfortunate point, as our chairman has noted before, it's not controlled by the rules of evidence. It could be based on speculation, hearsay and rumor. Whereas we know, in a court of law, that wouldn't be admissible.
And our procedures are a lot more flexible and open-ended. And, certainly, there's no standard of review that applies to judges in your distinguished and exalted position as members of the federal judiciary.
Judge Aldisert, I want to say that I guess I'm the only other panel member, member of this committee, who's probably read one of your books. But I'm certainly familiar with your great work and your writings.
And, of course, as has already been noticed, Judge Becker is very familiar to the Judiciary Committee.
And I want to ask both Judge Gibbons, who is no longer on the bench, and Judge Becker -- both of you have talked about the transforming experience of crossing over from being an ordinary lawyer, including a U.S. attorney, and then putting on the black robe, after you have put your hand on the Bible and have taken an oath to uphold the laws and Constitution of the United States, so help me God, and what a different perspective that provides -- a different obligation, different responsibilities.
CORNYN: And I think Judge Trump Barry noticed that transformation in this nominee when he crossed over from being a practicing lawyer to becoming a member of the judiciary.
And, Judge Becker, I wonder if you just might comment -- we just have a couple of seconds here. But this morning, Senator Biden was asking questions about this nominee's views on Roe v. Wade and perhaps is reflected in an application he made for a job in 1985. And it seemed to raise the question of: Well, if that's your view today, wouldn't you just feel free to go in and vote to overrule it?
And it struck me because of the difference in a judge's role from that of an advocate. He was applying for a job as part of the Reagan administration.
But on one hand he was talking about, well, maybe you have the power, but what Judge Alito seemed to talk about most was legitimacy of the judicial making process and the judgments rendered by courts and why that's such an integral part of the role judges play in our system of government.
Would you please respond to that?
BECKER: Well, I agree with Judge Alito and I think, Senator Cornyn, that you have eloquently described the transforming experience.
I know that it is within your life's experience when you took the oath of office to be the justice of the Texas Supreme Court, it just transforms you. You become a different person and your obligation is to the rule of law. And you have no interest in a case -- and if I could just segway this into your original point, which bears upon what Senator Leahy had to say in terms of whether or not a justice of the Supreme Court would have to recuse on an opinion I wrote, on one of our cases, I have no interest in the case.
Recusal is a function of whether or not the party or the lawyer has an interest in the case.
BECKER: But I don't have any interest in any case. And (inaudible) none of us have any interest in any case. And this is consistent with what Judge Alito said and your description of that transforming experience.
CORNYN: Mr. Chairman, I would just say, Judge Gibbons and Judge Lewis are no longer members of the bench; I'm sure have experienced the liberating transformation once you cross back over that rubicon, perhaps, as well.
Thank you very much.
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