I am, as usual, cautiously optimistic about the Alito nomination. First, I think he will turn out to be just the kind of judge I would like to see on the court: committed to the rule of law rather than legislation by other means. As Professor Schaff pointed out in an earlier column, principled conservatives do want judicial conservatives appointed so that Roe will be overturned; they want Roe overturned because they are judicially conservative. It is the idea of following the law, rather than the outcome on specific issues, that is most important to us.
Second, I think that Alito will be hard to defeat. Unlike Roberts, the Senate Democrats will probably make a real effort. But Alito's record will be ambiguous enough that no sharp picture of him as a right wing ideologue will come into focus. Or at least it won't if the Republicans are on the ball.
Moreover I think the gang of 14 who settled the filibuster crisis last time will mostly stand behind the principle that competence and qualifications are relevant to judicial confirmation and that ideology is not. If the Democrats try to filibuster, the nuclear option will be back on the table. Just as I argued earlier, the filibuster settlement was a significant victory for the Republicans.
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