George Will’s suggested questions provide excellent starting points for the actual inquiries posed by GOP senators. (No one should expect any Democrat to pose such interesting inquiries.)
But Will left out the necessary tutorial for the GOP senators themselves –they have to limit their stage time if they are going to make this a valuable exercise. Ask short, specific question. Do not ask open ended questions or multiple questions. Above all, don’t use your time orating about your opinions. The public doesn’t much care. In fact, the public doesn’t care at all.
“Can we really know your record, General Kagan,” without reading those documents?”
“Would you rule on a case where crucial parts of the record was both available but being withheld under a claim of privilege you could not consider on its merits because you didn’t have the documents to review?”
“Isn’t the Senate being asked to ‘advise and consent’ without the full record before it?”
At this moment there is nothing in the record that even remotely disqualifies General Kagan from confirmation except the stonewalling on her White House documents. Were I a member of the Senate I would not vote to confirm her or even proceed to consideration of her nomination without the full record before me, or at least a process by which ranking Republicans and key staff have a chance to review the documents in question and provide assurance that they do not raise troubling issues of judicial philosophy.
To be clear: The withheld documents would conceal no character issue. The SG has been through the full field process now twice within two years, and there is no doubt that she has passed that test as to personal probity and character.
The question is what do these withheld documents tell us about her legal philosophy and qualification to serve on SCOTUS? Probably nothing, but the Senate should not be obliged to trust the Executive Branch on such a crucial separation of powers issue.