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.

What, if anything, will Alito tell the senators?Click image to expand.
What, if anything, will Alito tell the senators?

What if you wanted to ask a question that actually elicits information?

That's something the senators on the judiciary committee might want to ask themselves going into this week's confirmation hearings for Samuel Alito. Because cross-examination is a skill at which they demonstrated almost zero ability during John Roberts' confirmation hearings last fall. Who can forget Joe Biden's heart-string tugging: "Does the right to privacy include the right to make the difficult decision when to no longer continue using an artificial apparatus to keep your parents alive? ... Just talk to me as a father." Or Tom Coburn's tendency toward Steel Magnolias-grade weeping?

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Instead of framing lines of questions—ranging from easy to difficult—some senators opted to go straight for the Perry Mason zinger: the question that might just fool an illiterate break-dancer into spilling the truth, but was unlikely to trip up a federal judge. Instead of listening carefully to Roberts' responses and offering follow-ups, the senators were often busy rehearsing their next question.

True, there are a couple of obstacles confronting senators seeking answers from the nominee: First, there is no way to force Alito to answer; the threat of water-boarding is not really an option at confirmation hearings. So long as the nominee can decline to respond, it's not all that useful to be a brilliant questioner. Consider that Roberts turned the refusal into an art form, deflecting—by Slate's count—67 questions. And then there's the fact that the senators tend to view their questioning of the nominee as incidental; their real objectives are delivering endless speeches, listing their every senatorial accomplishment, and striving to get themselves quoted on the evening news.

But for fun, 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. What might they do differently?

To answer that question, Slate has enlisted a roster of some of the toughest questioners we could find: people who, for the most part, ask hard questions professionally. We've sought out the advice of Socratic law professors and border guards, teachers, police officers, and shrinks, and, perhaps most fearsome of all, a 9-year-old. And here's the best advice they have for asking tough questions of slippery respondents:

Law professor Ann Althouse, Robert W. and Irma M. Arthur-Bascom professor at the University of Wisconsin Law School and the author of the blog Althouse:
1. Cut all the prefatory material. It just sounds like a political speech. We already understand that whatever issue you've chosen to focus on is important, that various studies and statistics exist to demonstrate that importance, that your constituents are deeply concerned about it, and that you've been seriously dedicated to it for a long time.

2. Don't waste any time buttering up the nominee with statements about how much you respect his accomplishments and the great institution of the court. And don't say ploddingly obvious things like the fact that the nomination is for a lifetime position.  

3. Don't ask about an issue that might come before the court when you know damned well the nominee is just going to say he can't answer the question because it might come before the court. And if you do happen to ask one, just move on. Don't ham it up dramatizing how frustrated you are.

4. Start with a forthright statement about what you want to hear the nominee talk about. Convince me, from the moment you open your mouth, that you are seeking something from him, not that you think it's great that the spotlight is on you. Ask something direct and force yourself to ask it in one minute.  

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