Wednesday, January 18, 2006


Ask not......

An interesting postcript on the Alito hearings from Harvard Law Professor and liberal lion Alan Dershowitz. Writing on the Huffington Post, Dershowitz argues that a big reason for the Democrats' dismal performance was that the minority had the wrong people asking the wrong questions.

In the first place, too many senators view the hearings as a campaign opportunity instead of as a confirmation hearing. Almost the entire first day was taken up with Committee members' "opening statements," which would be more accurately described as stump speeches. Things didn't get much better when the questioning began. For example, Senator Biden, the first announced presidential candidate of the 2008 campaign, spent over two-thirds of his first 30-minute "questioning" session talking about himself. Columnist Richard Cohen catalogued just a few of the things we learned about Biden, including his ethnic roots, his views on Ivy League colleges, and his thoughts on Senator Feinstein's eyeglasses (he approves). Right wing Republican senators postured about abortion, religion, and family values. We learned virtually nothing about Judge Alito. With all the pandering, posturing, and platitudes, it's a wonder that Judge Alito was able to get a word in edgewise.

The second problem with senator questioning is that most senators are not competent to question an experienced federal judge on issues of constitutional law adjudication. They are neither well-enough versed in the minutia of recent Supreme Court cases, nor are they very good at examining witnesses. Any experienced trial lawyer will tell you that asking crisp, concise questions - each aimed at a single discrete fact - is the only way to control a hostile witness. The senators' meandering, multi-pronged questions allowed Alito to pick and choose which parts he wanted to answer, to speak vaguely, and sometimes to evade the questions altogether.

When Alito proved unresponsive, the senators didn't know how to ask follow-up questions. Experienced cross-examiners instruct aspiring attorneys never to "work from a list of questions, because there is no way to know what question to ask until you have heard the previous answer." But because their staff had apparently drafted the questions, the senators were largely incapable of deviating from what was written on the page. Even when Alito gave contradictory testimony, no one pointed out the inconsistencies. To give just one obvious example, in his opening statement, Alito emphasized that his personal beliefs and preferences play no part in his work as a judge. Later on, Alito said that when a discrimination case comes before him, "I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender." Well, which is it? Do Alito's personal beliefs and experiences matter or don't they? And if not - if personal beliefs are entirely irrelevant in Alito in his role as a judge - why did he refuse to answer questions about those beliefs?

The solution? Dershowitz suggests the Judiciary Committee take a page from other Congressional committees (think Arthur Liman in Iran-contra) and tap outside counsel to lead the questioning of future high court nominees, at least on the complex constitutional stuff. While not a fix for the flawed strategic thinking I outlined in my op-ed yesterday, this is a constructive, eminently reasonable proposal that should be at the top of lessons learned from the Alito hearing debacle.

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