Date: January 12, 2006
Senator: Witness - Becker
SPECTER: Let's call the next panel -- Judge Becker, Judge Scirica, Judge Barry, Judge Aldisert.
Judge Garth will be coming to us electronically, but he appears on the screen.
Welcome, Judge Garth and Judge Gibbons and Judge Lewis.
Senator Coburn, do you have questions of the ABA?
SESSIONS: AMA, he'd like to ask about.
SPECTER: I begin by welcoming the judges.
By way of a brief introduction, I think it is worthy of comment how this panel came to be invited.
Judge Becker was in my offices because since August of 2003 he has been performing mediation services on asbestos reform litigation -- more than 40 meetings in a very, very tough legislative approach.
SPECTER: And he was in my office last December, at a time when I was being interviewed by Kathy Kiely of USA Today. And I introduced Judge Becker to Ms. Kiely, who asked him about Judge Alito. And without objection, I'd like to make a part of the record the article which Ms. Kiely wrote for USA Today, dated December 14, 2005, which contains Judge Becker's comments about Judge Alito.
After that, I discussed with Judge Becker the possibility of his being a witness for Judge Alito. And after some discussions Judge Becker checked out the various considerations, said he would be willing to do so, if invited by the committee. And then Judge Becker talked to the other judges who are here today, who also stated a willingness to appear if invited by the committee. And I then sent them formal letters of invitation.
Now to the judges. Judge Becker is a graduate of the University of Pennsylvania, 1954; Yale Law School, 1957; appointed by President Reagan to the district court in 1970; and to the Court of Appeals for the 3rd Circuit in 1981.
He's really been performing services as the 101st senator. And by way of a full disclosure, I've known Judge Becker since the fall of 1950 when he was a freshman at the University of Pennsylvania and I was a senior. And we have been good friends ever since.
Judge Becker, thank you for your service to the United States in so many capacities.
BECKER: Thank you, Mr. Chairman.
SPECTER: We have a procedure for five minutes. I don't intend to bang the gavel on any of you judges -- not because you're judges, but because my gavel is almost broken.
BECKER: Mr. Chairman, Senator Leahy and other members of the committee, Sam Alito became my colleague when he joined our court in 1990. Since that time, we have sat on over 1,000 cases together. And I have therefore come to know him well as a judge and as a human being.
Many do not fully understand the intensity of the intellectual and personal relationship among appellate judges. We always sit together in panels of three. And in the course of deciding and writing up cases, engage in the most rigorous dialogue with each other.
BECKER: The great violinist Isaac Stern, describing an afternoon of chamber music, once opined that after such a session, one knows his fellow quartet members better than a man knows his wife after 30 years of marriage. Now this analogy -- hyperbole aside -- vividly describes the intense relationship among appellate judges.
I therefore believe myself to be a good judge of the four matters that I think are the central focus of this committee as it decides whether to consent to this nomination: Sam Alito's temperament, his integrity, his intellect and his approach to the law.
First, temperament. Sam Alito is a wonderful human being. He's gentle, considerate, unfailingly polite, decent, kind, patient and generous. He's modest and self-effacing. He shuns praise.
When he had completed his 10th year of service on our court, Sam declined my offer extended as chief judge -- I was then the chief judge of the court -- to arrange the usual party to observe 10-year anniversaries. Sam was uncomfortable at the prospect of encomiums to his service.
Sam has never succumbed to the lure of big city lights. He has a sense of place, which, for him, is not nearby New York City, but New Jersey, which to him has always been home.
Finally, there is an aspect of appellate judging that no one gets to see -- no one -- but the judges themselves: How they behave in conference after oral argument, at which point the case is decided, and which, I submit, is the most critically important phase of the appellate judicial process.
In hundreds of conferences, I had never once heard Sam raise his voice, express anger or sarcasm or even try to proselytize. Rather, he expresses his views in measured and temperate tones.
BECKER: Second, integrity: Sam Alito is a soul of honor. I have never seen a chink in the armor of his integrity, which I view as total, an opinion he's not undermined by the furor over the Vanguard issue by which I remain baffled.
My wife holds Vanguard mutual shares, which I report on my financial disclosure form. However, I do not identify Vanguard on my recusal list because I am satisfied that my wife possesses no ownership interest in the Vanguard Management company, which is what controls the recusal determination. She has never received a proxy statement, an opportunity to vote for directors, or any indicia of ownership, other than her (inaudible) share and the fund to the extent of her investment.
I believe that the view of Dean Rotunda, which is in your record, explains why Judge Alito was not required under the law to recuse himself in the suit against Vanguard.
Third, intellect: Judge Alito's intellect is of a very high order. He's brilliant, he's highly analytical and meticulous and careful in his comments and his written work.
He's a wonderful partner in dialogue. He will think of things that his colleagues have missed. He's not doctrinaire, but rather is open to differing views and will often change his mind in light of the views of a colleague.
Contrary to some reports, Sam does not dissent often. According to our court statistics, in the last six years, he has dissented only 16 times -- a little over two cases per year. That's the same number that I have dissented, and fewer than the number of our colleagues.
In my view, Sam Alito has the intellect to sit on the Supreme Court. I know all of its members. I know them reasonably well. And in my view, he would be a strong and independent justice, his own man.
Finally, Sam's intellect is not abstract, but practical. He does not mistake the obscure for the profound.
Fourth, approach to the law: As I address this topic, I'm acutely aware of the deep concern of the members of the committee about this subject. I am also aware that my role here is to testify to fact, not to opinion, and hence I will express neither normative or predictive judgments.
BECKER: The Sam Alito that I have sat with for 15 years is not an ideologue. He's not a movement person. He's a real judge deciding each case on the facts and the law, not on his personal views, whatever they may be.
He scrupulously adheres to precedent. I have never seen him exhibit a bias against any class of litigation or litigants.
He was a career prosecutor, but in the numerous criminal cases on which we have sat together, if the evidence was insufficient or the search was flawed, he would vote to overturn the conviction.
And, if the record did not support summary judgment against the plaintiff in an employment discrimination or civil rights case, he would vote to reverse. His credo has always been fairness.
Now I know that there's been controversy about certain ideological views expressed in some 20-year-old memos. Whatever these views may be, his judging does not reflect them.
I think that the public does not understand what happens when you become a judge. When you take that judicial oath, you become a different person. You decide cases not to reach the result that you would like, but based on what the facts and the law command.
What you decide as a judge are not general principles but the case in front of you. You view it as narrowly as possible. That's what Sam always does, with great respect for precedent.
Sam Alito has been faithful to that judicial oath.
Now, my final point relates to his approach to the law -- another facet of his approach to the law. And the best calibers that I can find to measure his approach to the law was to compare it with my own.
I have been a federal judge for 35 years, one week and one day. My opinions would fill many bookshelves. But I think that I am fairly viewed as a mainstream or centrist judge.
A computer survey run by our court librarian received 1,050 opinions in cases in which Sam Alito and I sat together. In these cases, we disagreed 27 times, which is probably about the same number that I would have disagreed with most other colleagues.
Some cases turned on a reading of the record, others on how rigorously or flexibly we interpreted the reach of a statutory or constitutional provision or a state court's jurisprudence or applied our usually deferential standard of review.
But, in every case on which we differed, Sam's position was closely reasoned and supportable either by the record or by his interpretation of the law or both.
The short of it, members of the committee, is that Sam Alito is a superb judge in terms of temperament, integrity and intellect. And he has exhibited a careful, temperate, case-by-case approach to the law.
BECKER: Thank you for the opportunity to address you.