Obviously, if Alito is more explicit about how he would rule in private meetings with senators, he will be unable to rationally argue, before the Committee, that he’s not free to speak more forthrightly. This assumes the senators, or at least some of them, are accurately portraying what has been said in their meetings. As I have contended repeatedly, all the talk about what a nominee should or should not say is academic unless the Senate decides there’s a penalty to pay for more generalized answers. There’s no use in debating the point — yet again — but suffice it to say that we would learn a great deal more from a nominee with straightforward questions about judicial philosophy and going at him with question after question about each part of the Constitution and the manner in which he would interpret it.
One thing we do know even before the Alito hearings is that the Republicans senators, some of whom claim to be conservative, rarely if ever set forth the originalist argument for issues like so-called privacy rights. We continue to hear defenses that are extremely troubling, e.g., “well, those are his personal views”; “he said that twenty-five years ago,” etc. Why won’t even one supposedly conservative senator get up and say, “Look, either you believe in the Constitution or you don’t. Either you believe in representative government or you don’t. Either you believe the American people are enfranchised to make decisions about abortion, marriage, and so forth, or you don’t.” Or something like this. Instead, we get defensive responses that fail to advance the very debate we say we’ve wanted, and we cede ground to the activists.