A number of current members of the Court of Appeals for the Third Circuit are scheduled to testify on behalf of the confirmation of Judge Alito as an Associate Justice of the Supreme Court before the Senate Judiciary Committe. Are they acting ethically?
The Third Circuit judges scheduled to testify are Judges Anthony Scirica, Edward Becker, Maryanne Trump Barry (whose brother is Donald Trump), Ruggero Adisert, Leonard Garth (who employed Judge Alito as a law clerk), and retired Judges John Gibbons and Timothy Lewis).
Canon 2B of the Code of Conduct for United State Judges states: "A judge should not allow family, social, or other relationships to influence judicial conduct or judgment. A judge should not lend of the prestige of the judicial office to advance the private interests of others; nor convey or permit others to convey the impression that they are in a special position to influence the judge. A judge should not testify voluntarily as a character witness."
In the Commentary on Canon 2B, it is noted that:
"The testimony of a judge as a character witness injects the prestige of the judicial office into the proceeding in which the judge testifies and may be misunderstood to be an offical testimonial. This Canon, however, does not afford the judge a privilege against testifying in response to an offical summons."
The Commentary specifically addresses the judicial nomination process, stating that" "Judges may participate in the process of judicial selection by cooperating with appointing authorities and screening committees seeking names for consideration, and by responding to official inquiries concerning a person being considered for a judgeship."
Nothing in the Commentary suggests that a sitting or retired judge should appear voluntarily as a character witness for a judicial nominee.
News reports suggest that Senator Spector solicited the testimony of the Court of Appeals judges. It appears Senator Spector believes that the judicial canons apply only in criminal trials. The only other Supreme Court nominee who had a sitting judge appear on his behalf was Judge Robert Bork.
I guess when it comes to ethics the governing rule is IOKIYAR.