Senators can with confidence and authority ask nominees to explain the grounds on which they would have voted in past decisions of the Supreme Court. Such questions serve the democratic design of the confirmation process by revealing the operational content of nominees’ constitutional commitments."Revealing the operational content of nominees’ constitutional commitments"?
Asking nominees to disclose how they would have decided well-known Supreme Court cases prevents nominees from explaining their constitutional commitments in terms of abstract principles like 'liberty' or 'equality,' whose practical significance in particular cases and contested areas of constitutional law is unknown. The goal would be to sustain a colloquy capable of adequately informing a Senatorial vote on whether to invest a nominee with the independent authority to interpret the Constitution.Well, I would love for the nominee to explain the details of constitutional law like this, to reveal his mind at work. But I find it hard to picture the Senators allowing him the time to lay things out. I can just see them interrupting him and trying to restate things in short, hot-button style so they can get back to their usual preening bloviation. "Sustain a colloquy"? Would they? I mean, assuming the nominee would engage like this, would the Senators keep up their end? I think they'd be frightened out of their depth and would skitter back into the warm shallows of their own self-interest.
Larry Tribe, Erwin Chemerinsky, Randy Barnett, and Steven Lubet have responses.
Nice caricature of Alito at the link, too.