Your witness, senators.

The law, lawyers, and the court.
Jan. 9 2006 12:11 AM

Your Witness, Senators

Expert suggestions on cross-examining Sam Alito.

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5. When the nominee responds in legal terms, don't act irritated, as if he's being evasive. Interact with him about the interpretation of law, if you can, even if you risk sounding like a student talking to a professor. Don't retreat into wondering aloud about whether he has a heart or what he's like as a man as opposed to a judge. 

6. Don't lecture the nominee. Don't preen. And don't cry. 

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Nine-year-old Max Freedman:

One thing that works well is to act cute and charming. This one works, but only for very stupid people: You nag and nag and nag. Then you look for the answer yourself. Also, you can bribe them. Candy or cool toys or Yu-gi-oh trading cards work great.

This works, but it makes you look a little weird: You say, "I know you are keeping the answer from me but I can wait all day." Then you just wait. You can also make them look bad and say, "I know you are lying."

Psychiatrist Peter D. Kramer, author of Against Depression and host of public radio's The Infinite Mind:

I don't think that psychiatrists are or ought to be especially cagy questioners, aiming to trick patients into revealing more than they intend. The opposite impression, that we are medical Sherlock Holmeses, arises from Freud's methods, which do sometimes have a self-congratulatory, "gotcha" quality. For the most part, contemporary practitioners rely on empathy, which includes some fellow-feeling over the patient's need to maintain secrets until he or she attains sufficient (merited) trust in the doctor.

That said, I have thoughts about how a conscientious questioner might approach the hearings. The questioning occurs under constraints. Potential opponents of the nominee are told that they ought not ask and he ought not answer questions about likely future cases, and that legitimate discussion will center on his values and his past public record. To which I would say, well then, let's do that job well. Referring back to my therapy role, I have in mind patients whose lovers say, "Let's just be friends"; I want the patients to reply, "OK, so long as you do that well," i.e., you  have my best interests in mind, put them foremost, and so on. The standard for responsible conduct has just gone up, not down. Here, in the court hearings, if all that we scrutinize are values and character, those had better be sterling. To put the same matter in different (medical) terms, the committee should take a thorough history. 

I might start with a discussion of what it means to hold a law degree, to represent the judicial values, to have standing as an officer of the court. When in a political position, what responsibilities does such a professional have toward the Constitution and the constitutionality of governmental actions? And then, as a matter of character, how does someone in such a mixed role, counselor-politico, sell himself to his superiors? What were Alito's goals, tenets, and beliefs in the Reagan administration? How does he view "one man, one vote," both constitutionally and politically? What was and is the moral argument for working to weaken that principle? If  questioners are restricted to matters of character, history, and politics, let's lay them out, so that the public can see what the Bush administration and its appointee stand for. By the end of the hearings, we should know more than we do now about the issues that supporters of Alito deem relevant: Is this the sort of man and are his the sort of values we want to see installed and represented on our highest court?

Former customs and immigration officer Avigail Lithwick: 

You just need to ask the same question over and over: On the Italian flights, for instance, we had to ask about a million times if they had any meat products. They would always say no (always) and so then it began: "No chicken?" "No Salami?" "No this?" "No that?" Eventually, something would finally get a yes. 

NYPD detective Lucas Miller:

There is a conundrum that a policeman faces when asked about politics. The left recognizes the complexity of society and the social forces that swirl around the police, and yet the right supports us when we approach the line between good and overzealous policing. Samuel Alito has repeatedly demonstrated in his arguments and decisions that he trusts the police. He sees a cop's motivation as just and his transgressions forgivable. But what makes the policeman a sympathetic figure in America, unlike some of his federal counterparts or his colleagues in other countries, is his dual identity as government agent and as citizen. He resides in the area he polices; he must live in the world he makes. As much as I am tempted to embrace someone who so clearly appreciates what I do and who would seemingly let me do it with total discretion, I cannot get around a foreboding should agents of the executive branch, as the police are, be given the latitude that Alito is willing to give. There is a moment when you are chasing a suspect, and because you are carrying 15 pounds of equipment or because he is half your age, he begins to get away from you, and you think how satisfying it would be to let a bullet finish the chase for you. Few cops would argue that it is the right thing to do—Alito would and has. 

I would ask Judge Alito:

In the United States, we draw a pretty clear line between the way we police those inside and those outside the county. As international terrorism has become more of a threat, our domestic agencies have been forced to look beyond our borders and our intelligence agencies have begun to look within. There are longstanding policies in place separating agencies we think of as domestic—the FBI, the local police, and even the national guard—from those agencies that pursue our enemies abroad—the CIA, the NSA, the Marines. Do you think that this is a worthy distinction? Does it hamper our ability to protect ourselves? How much would the dissolution of that distinction in turn dissolve liberties that you believe we should hold dearly?