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.  

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. 

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? 

Alternatively, since he would probably authorize me to conduct interrogations with a little more, shall we say, creativity, I might ask Alito what he intends to do with Roe—and then make him tell me.

Middle-school teacher Stephanie Tatel:

Ask questions you don't already know the answer to. If you don't know the answer, the student won't either, and they will be forced to think up something original.Also, 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.

An Ivy League law professor, who requests anonymity:

I would recommend focusing on specific cases from the past. And you could ask, if you were sitting on court during the original hearing of (Plessy, Brown, Roe v. Wade, take your pick) would you have voted with the majority? 

I'd start by asking about a slam-dunk opinion—such as Lopez—to get Alito to be willing to play the game. And then I would proceed to harder cases.

I'd also ask him to name three cases he would have dissented in; to name cases where he would have parted ways with Rehnquist, and Scalia. 

I'd also ask him a few questions that have clear answer: "Please describe for me the holding of Smith v. Jones. Please describe for me what the 23rd Amendment says."

I'd also ask him about how he and his clerks have divided work: "What proportion of the words of your opinions have you drafted, and what proportion have your clerks drafted?

I'd also ask him if he would be willing to sell any shares of stock that might cause him to recuse himself (and instead reinvest them in mutual funds that do not require recusal based on underlying investments). 

Ladies and gentlemen of the Senate: Start your engines. And think carefully about what Max Freedman recommends—you really can wait all day for a truthful answer.

Rachael Larimore is a Slate senior editor.

Dahlia Lithwick writes about the courts and the law for Slate

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