01/18/2006 02:19 pm ET Updated May 25, 2011

The Wrong Questions - and the Wrong Questioners

As the Senate prepares to vote on Judge Alito's promotion to the Supreme Court, we should reflect on lessons learned from the deeply flawed process thus far and their implications for future nominations.

In four full days of questioning, the Senate Judiciary Committee was not able to elicit much useful information from Judge Samuel Alito. To be sure, Alito deserves part of the blame for his evasiveness. Unlike John Roberts, who refused to answer questions on the ground that an issue might conceivably come before the Supreme Court, Alito preferred to hide behind what he called the "judicial decision-making process." Alito would have us believe that judges reach their opinions in a manner wholly distinct from the way in which everyone else thinks. Without hearing oral arguments, reading competing briefs, and meditating on an issue for hours alone in his chambers, Alito simply does not know what he thinks about the taste of Cherry Coke or the constitutional status of Roe v. Wade.

This is a man who will likely spend the next two or three decades as one of only nine Americans with the power to determine what the Constitution means for the entire country. It is astounding that he should be allowed to join the Court without identifying the political lens through which he will confront cases. Jeffrey Toobin put the issue perfectly when he noted, "[A]ll 18 of those senators on that [Judiciary] Committee had to answer when they ran for office, 'Do you think Roe v. Wade should be overturned?' Yet the one person in that room who actually has something to say about whether Roe v. Wade gets overturned doesn't have to answer that question."

But the real trouble with the hearings is some of the senators themselves. Of course Judge Alito wants to say as little as possible, especially with a Republican majority ready to confirm. It is the job of the Judiciary Committee to cut through the nominee's reticence and force him to answer questions.

Why are the senators unable to conduct the sort of thoughtful and informative hearings that would best serve the public?

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?

Finally, as my colleague Bill Stuntz has pointed out, the Supreme Court's greatest impact on people's lives is not in so many of the sensational but largely symbolic areas of constitutional law (think: Ten Commandments displays), but rather in the field of criminal justice. "[T]he Supreme Court's most important job is not managing the culture wars. Regulating the never-ending war on crime is a much bigger task." Senators, however, are afraid to question nominees about their commitment to the rights of the accused. No politician wants to risk being seen as sympathetic to criminals or labeled "soft on crime."

The only way to remedy these problems is to get senators out of the questioning business. I propose that the Judiciary Committee take a page from other Congressional committees by hiring outside lawyers to conduct their hearings. They should bring in three or four first-rate trial lawyers with backgrounds in constitutional scholarship to ask the hard questions. Of course Committee members will consult with the litigators to ensure that they cover all the issues of concern to the senators. But during the hearings, the senators' job will be to listen and then to vote.

History provides instructive examples of committee lawyers helping conduct important Congressional hearings. Congress hired outside counsel to examine witnesses in both the Watergate and Iran Contra sessions. Supreme Court confirmation hearings are no less important. The next time a seat on the Court opens, the Judiciary Committee members should check their egos and hire lawyers who will force both the Committee and the nominee to put substance before spectacle.