According to Daniel Drezner, the dumbest thing set during the Alito confirmation hearings was this effort by Senator Feinstein to deny that a hypothetical was a hypothetical:
FEINSTEIN: So if I understand this, you essentially said that you wanted to follow precedent, newly established law in this area. And you left a little hedge that if Congress made findings in that law, then that might be a different situation.The winning answer was submitted by Miller’s Time.
If Congress did make findings, would you have agreed that that statute would been constitutional?
ALITO: What I said in the opinion and what I will reiterate this afternoon is that it would have been a very different case for me. I don’t think I can express an opinion on how I would have decided a hypothetical case.
FEINSTEIN: It’s not hypothetical. I’m just asking you, if there were findings as you said, you might have sustained the law.
ALITO: And I reiterate that…
FEINSTEIN: And I’m just asking you would you have sustained the law…
ALITO: I don’t think that I can give you a definitive answer to the question because that involves a case that’s different from the case that came before me.