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Greenfield: Real questions for Alito

By Jeff Greenfield
CNN Senior Political Analyst

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So, how about it, judge? Paul, John or Ringo? Beer or wine? Halle Berry or Diane Lane?

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Supreme Court

WASHINGTON (CNN) -- OK, one day of nomination hearings are enough. Clearly, we're not going to learn anything remotely useful about the legal philosophy of Judge Samuel Alito.

Democrats are spending their time painting the judge as a jurist who chuckles with amusement as jackbooted thugs strip-search innocent children and eject impoverished miners from their homes, all the while ripping giant holes in the Constitution.

Republicans are grasping Alito by the hand, leading him through gentle reassurances of his wisdom and probity. ("And didn't you always in every way act with total and complete integrity?")

And when the questions turn to matters of law or constitutional interpretation, Alito permits himself explosively shocking opinions: when the Supreme Court decides something, it's a precedent (duh!), or: "No one is above the law; no one is under the law." (Is anybody beside the law? Never mind.)

So, are there questions that might, in fact, throw some light on what Alito (or any other nominee, by the way) might think without the usual rhetorical wanderings that pass for senators' "questions?"

I'm glad you asked. In fact, there are two kinds of questions.

The first kind asks for answers that offer a sense of a nominee's thinking without committing that nominee to any future rulings. For instance:

  • Everyone seems to agree it's wrong for judges to "legislate from the bench." Give us two or three examples from the court's past where, in your view, the court legislated from the bench.
  • Name two or three justices from the past whom you do not admire. Why not?
  • The Ninth Amendment says that the enumeration of certain rights [in the Constitution and the Bill of Rights] should not be held to disparage other rights... ." What does this mean?
  • Justice Scalia says that the court was wrong 80 years ago, when it began to apply the Bill of Rights to the states. Do you agree?
  • If a punishment -- say, branding or flogging -- was widely accepted at the time the Bill of Rights was written, could it be considered "cruel and unusual" today?
  • The second type of questions would give us a much broader sense of how a nominee thinks. For instance:

  • Favorite Beatle? (Paul means a right-brain view of things, John, a left-brain view. Ringo means outside the mainstream.)
  • Do you support the designated-hitter rule? (Yes means a pro-labor, pro-federalist outlook -- different rules for different leagues.)
  • Beer or wine? (populist vs. elitist)
  • Marital exception -- Halle Berry or Diane Lane? (Other answers acceptable, of course.)
  • Not only would these lines of questioning be far more revealing than the ones we've been listening to, they'd surely garner a much bigger audience.

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