Date: January 12, 2006
Senator: Witness - Garth
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SPECTER: Thank you very much, Judge Aldisert.
We turn now to Judge Leonard Garth who is coming to us -- you see him on the television screen -- coming to us from California. Judge Garth is a graduate of Columbia, 1942; served in the United States Army, lieutenant from '43 to '46; and then from the Harvard Law School, where he graduated in 1952.
In 1969, he was appointed to the district court by President Nixon, and then to the circuit court by President Nixon in 1973; a lecturer at Rutgers Law School and at the Seton Hall Law School.
Has known Judge Alito since Judge Alito clerked for Judge Garth back in 1976 to 1977 and has served with him on the 3rd Circuit for the 15 years of Judge Alito's tenure there.
SPECTER: Judge Garth, we very much appreciate your being with us, and we look forward to your testimony.
GARTH: Thank you, Senator Specter, Senator Leahy and the honorable members of the Senate Judiciary Committee -- and, of course, my own family of judges who have preceded me in speaking to you today.
I, too, am privileged to appear before you today, albeit by video conferencing rather than in person. I cannot be with you in person because I recently had some major spinal surgery, and I find it extremely difficult and painful to travel.
As Senator Specter has indicated, I have served as a federal judge for some 36 years, as a district court judge in New Jersey and, since August of 1973, as a member of the 3rd Circuit Court of Appeals.
Now, I do want to interject and say that in that respect, perhaps Judge Aldisert is older than I am -- not by many days.
(LAUGHTER)
And I'm almost as old as he is, but not quite as handsome as Judge Barry of my court.
(LAUGHTER)
I hope you'll forgive that aside, but I want to ask you something else to forgive me. I have heard all of my colleagues speak so eloquently, and I'll use the term that Judge Barry used, glowingly, about Judge Alito. But I have known him just a little bit longer and in a different capacity over the course of his career.
Following his graduation from law school, he served as one of my two law clerks in 1976 to 1977. And as you have heard, since 1990 he has served as my colleague on the court of appeals.
GARTH: During the interim years, because of the relationship that we developed during his clerkship and the fact that both he and I are New Jersey residents, we remain close to one another. Hence I think I can speak knowledgeably about Sam's qualifications and his talents, his discretion, his honesty, his fairness and his integrity.
These are qualities that Judge Alito possesses now and has possessed since the very beginning of his legal career.
Let me first tell you about Sam's clerkship with me. As you may know, a law clerk is a judge's legal adviser and a sounding board, if I may use that term. But he or she often becomes much more than that -- a member of the judge's extended family.
And, as a result, a judge gets to know his law clerk in a particularly personal way.
I knew Sam in this personal way at the very beginning of his career as a lawyer. For that reason, I think I have a unique perspective to share with you about him.
I chose Sam to be my law clerk in 1976 from among the literally hundreds of applicants who sent their resumes to me and the other judges of honor of our court that year.
Sam was still a law student when I interviewed him, but he struck me in that encounter as fiercely intelligent, deeply motivated and extremely capable.
I did not know at that time that Sam was the son of Samuel Alito Sr. That's a gentleman who had impressed me very, very much as a witness in the New Jersey redistricting case that I heard about 1972.
Once I made the connection, however, I fully understood why Sam was so impressive and why he regarded -- and regards today -- his father as a role model.
During his tenure with me, Sam bore out all my initial impressions of his excellence -- impressions which had led me to engage him. He was a brilliant and exceptional assistant to me.
He enabled me to test judicial theories and to fashion appropriate judgments in each case that came before our court. I have had some 85 law clerks assisting me in chambers over the course of my career on the bench.
GARTH: They have all been extremely well qualified in all ways to serve a court of appeals judge.
Sam Alito stands out even among that very elite group. And during the year that he was my law clerk, Sam and I frequently took an afternoon walk near the courthouse in Newark and discussed the cases while we walked.
I can tell you that the recommendations and arguments that Sam made about those cases were, as my colleagues have pointed out, always reasoned, principled and supported by precedent.
I developed, then, a deep respect for Sam's analytical ability, his legal acumen, his judgments, his institutional values and, yes, even his sense of humor which, if he is confirmed -- as I hope he might -- will probably compete with that of other justices.
Few of the cases that come before our court are slam-dunk cases. Most involve difficult questions on which reasonable people can disagree. And generally Sam and I reached agreement after discussing these cases, but more than once we did not.
Even in those latter cases, the ones in which we disagreed, I understood and respected the positions that Sam advanced and the contours of his analysis.
Our afternoon walks invariably ended at a neighborhood store, T.M. Ward Company, where we purchased peanuts and coffee. I note parenthetically that Ward has since honored Sam by naming a special blend of coffee that he favors, Judge Alito's Bold Justice Blend.
(LAUGHTER)
I think there are few of us that have that distinction.
After he left my chambers, Sam continued on to public service, as you have heard. In a letter to the then-Deputy Assistant Attorney General Arnold Burn, I endorsed Sam's candidacy for United States attorney for the district of New Jersey. And I want to just read you what I wrote. This was a long, long time ago.
"I can certify to Mr. Alito's integrity, ability, discretion and honesty.
GARTH: "Above and beyond those qualities, however, I believe his talents as a lawyer are exceptional.
"I am sure that his tenure in government service since he has left my chambers has reflected the fact that he is a thorough, meticulous, intelligent and resourceful attorney and that his judgments are mature and responsible. Indeed, he was one of the finest law clerks I have had the privilege to engage. And if I were to rate him on the basis of one to 10, 10 being the highest rating, he would without question receive a 10-plus rating."
I stress these same attributes when I endorsed Sam for membership on our court seven years later. He has more than lived up to my rating and the qualities that I attributed to him in the 15 years since he joined the court and became my colleague.
Sam is an intellectually gifted and morally principled judge. We have not always agreed on the outcome of every case, as just recently stated.
Just this fall, for example, Sam dissented from a majority opinion that I wrote in an Employee Retirement Income Security Act -- that's ERISA -- that I wrote in an ERISA case.
In that case, Sam and I disagreed about how two provisions of the statute interact. I and the other majority judge were attracted in large part to the reasoning of the 2nd Circuit.
Judge Alito, on the other hand, was attracted by the reasoning of the 7th Circuit. Even in the cases on which we disagree, however, I always respect Sam's opinion -- just as I did during our afternoon walks when he was my law clerk.
Sam is also a prudent judge.
Make no mistake, he is no revolutionary. He is a sound jurist, always respectful of the institutions and the precepts that led to the decisions in the cases under review.
I have heard concerns expressed about whether Judge Alito can be fair and evenhanded.
GARTH: Let me assure me from my extensive experiences with him and with my knowledge of him going back, as I have stated, over 30 years, that he will always vote in accordance with the Constitution and laws as enacted by Congress.
His fairness, his judicial demeanor and actions, and his commitment to the law -- all of those qualities which my colleagues and I agree he has -- do not permit him to be influenced by individual preferences or any personal predilection.
As you may know, when the judges of our court meet in conference -- and I think Judge Becker referred to this in his remarks -- we are the only individuals in chambers. No law clerks, no assistants, no administrative personnel or, indeed, anyone else attend these conferences.
I can tell you with confidence that at no time during the 15 years that Judge Alito has served with me and with our colleagues on the court and the countless number of times that we have sat together in private conference after hearing oral argument, has he ever expressed anything that could be described as an agenda. Nor has he ever expressed any personal predilections about a case or an issue or a principle that would affect his decisions.
He has a deep and abiding respect for the role of stare decisis and established law. I appreciate, of course, that the Supreme Court can retreat from its earlier decisions, but it does so rarely and only in very special circumstances.
And I am convinced that if Judge Alito is confirmed as an associate justice of the Supreme Court, he will continue to honor stare decisis as he did as a law clerk and as he has done as a member of our court.
He will sit among those jurists whose qualities of fairness and of principle are the lode star of the judiciary.
GARTH: In my opinion, Sam is as well qualified as the most qualified justices currently sitting on the Supreme Court.
A word about Sam's demeanor is in order. Sam is and always has been reserved, soft spoken and thoughtful. He is also modest, and I would even say self-effacing. And these are the characteristics I think of when I think of Sam's personality. It is rare to find humility such as his in someone of such extraordinary ability.
Over the 30 years I have known Sam, I have seen him grow professionally into the reserved, mature, independent and apolitical jurist that graces our court today. I regard him as the most qualified member of our court to be considered as an associate justice of the Supreme Court.
I know that just as Judge Alito has brought and brings grace and luster to the 3rd Circuit, so too will he bring grace and luster to the United States Supreme Court if he is confirmed.
Thank you, members of the Senate Judiciary.
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