by Matt Barr

Grilled Alito

How to question Judge Alito? What to ask him? Court watchers are of course dealing with these subjects today. Slate has a clever piece in which Dahlia Lithwick and Rachel Larimore ask people who "ask hard questions professionally" how in the abstract to get information out of an examinee, and some apply their advice directly to the Alito hearings. As you'd expect, the piece is heavy on Alito opponents, but it's an interesting concept. (My favorite bit: a middle school teacher says, "we are taught to make it perfectly clear what the question is. If you ask four different questions rolled into one, you are giving the student the power to decide which of the questions, if any, to answer." Ain't that the truth.)

Here's the stated premise: "let's pretend -- for just a moment -- that they do care about the answers they receive. Imagine that what they really want to do is extract information from Judge Alito." Is that the ideal, really? It seems to me that roughly half the committee members will want Alito to justify his nomination and half will want him to self destruct. So, even in the land of make-believe you're not interested in learning anything. You're advocates, using questions to persuade others to vote your way. Sounds like trial law to me.

(Sure, ok, ideally, the Senators on the committee are all undecided and will vote based on what they hear in questioning. But as that's obviously untrue, let's ignore that.)

One set of Senators, the Republicans, should ask questions like they would a friendly witness on direct examination in court. They should without fail know the answers to their questions when they ask them. They should be direct, their questions requiring short answers. In court, you can't ask leading questions of a friendly witness, but in Senate hearings, you most certainly can, so they should.

"Judge Alito, would you say you were trying hard to discern and follow the Supreme Court's, and in particular Jusitce O'Connor's, reasoning in the leading abortion cases when you deliberated in Casey v. Planned Parenthood?"

"That was a unanimous case, wasn't it, except for the spousal notification provision?"

"What's the difference between spousal notification and spousal consent in this context, Judge?"

"And again, the Pennsylvania law at issue in Casey involved a spousal notice provision, not spousal consent?"

The Republicans have it easy. The Democrats should instead ask broad, open-ended questions. Super villains in the world of The Incredibles aren't the only ones who endanger their schemes when they monologue. The more rope they give Alito, the more likely he'll hang himself, in other words.

But they should still be mindful of the parenthetical advice of our middle school teacher above. The questions must be direct, and they must require the answer to stick to a particular subject of interest. "How would you protect Americans' rights under the Fourth Amendment in an age of high technology and terror?" is a lousy question for a Democrat to ask, because it invites Judge Alito to speak generally about important Fourth Amendment concerns and how to balance them with keeping Americans safe. Phooey.

Pretend you're cross examining someone whose story on direct you don't buy. In court, you might ask leading "isn't it true" and "don't you think" questions. The idea is to convey your point to the jury, by essentially being the one testifying. This is the Senate's favored tack, but it doesn't work. You should ask open-ended questions that require narrative. You're fishing for a sound bite or longer quote that can be used against the nominee.

This is terribly difficult for Senators of any stripe, because it requires that they not be the focus of the question, and we know how they are. But to achieve their goal they want Judge Alito to speak extemporaneously, in narrative. No yes or no questions; no "do you agree," not even any "how important is it" -- for the answer to that is "very" or "not at all," and on Alito can go (if he so chooses) talking about what everyone can agree is important.

"Describe the role of the executive branch in border security. How much latitide does the President have where Congress has not acted?"

"Name three Supreme Court cases that have expanded individual rights in a way you think was not mandated by the Constitution, and say why."

Bonus points if your open-ended but focused question requires the examinee to make assumptions he'd rather not make.

"Put your lawyer hat on. How would you advise a client who wanted to protest abortion in the vicinity of an abortion clinic?"

See, to answer that question the Judge has to be someone abortion protesters would come to for advice. And his answer indicates that he has a good idea how to exploit current abortion jurisprudence in favor of abortion opponents. Brilliant, if I say so myself.

But by all accounts, Judge Alito is safe from direct, open ended questions that will require thought and a fleetness afoot. As with most nominees the Senate has to confirm, Democrats are going to be the ones testifying, counting on the very questions they ask to make the case against Alito. The problem with that tack is that the American people expect it, and will discount it, just as they won't pay attention when a Republican Senator goes on at length about what a great guy the nominee is. Judge Alito will be confirmed unless he undoes his own candidacy. Democrats either don't realize that, or, more likely, simply don't care -- they just want their base to see them being unfriendly to him.

Browse books from Amazon.com:
Supreme+Court constitution trial+advocacy