Okay, let me explain myself, Ed. Sorry about the length of this post; and if you think I’m wrong, I hope you’re right.

Two things to keep in mind here: First, I don’t think that Schumer and company have scored actual substantive points against Alito, just political ones. Second, I’m not saying that Alito has any wounds—just a few nicks.

I’m not going in part on my gut reactions at the time. I’m also basing my analysis on the way the Senate Republicans behaved. I think things started going downhill during Feingold’s Vanguard questioning. Alito looked tired and a bit irritated (who can blame him?). Orrin Hatch had to come to Alito’s rescue—or at least it seemed that way, and the perception emboldened the Democrats.

The next Democrat at bat was Schumer. He started by asking Alito if he still agreed with his 1985 view that the Constitution, considered as an original matter, protects abortion. Alito wasn’t especially convincing in explaining why he couldn’t answer the question, and Schumer made him look as though he were hiding something. (An aside: Alito could have said that he was not going to answer a question so relevant to litigation that could come before him. That has to be the reason he would say that the Constitution protects free speech and not say whether it protects abortion: While decisions about what it means to protect free speech will come before the Court, the core right won’t. The core right to abortion may come before the justices. The distinction Alito drew—that the right to abortion was an interpretation while free speech was in the text—won’t do; Alito would surely have been willing to say that the Constitution protects free association, which isn’t in the text.)

Then Schumer talked about various other people’s view of precedent. I don’t know why Alito couldn’t just have said, “I’m not Clarence Thomas or Robert Bork. I agree with them on some things and disagree on others, and I’ve given you my own views on stare decisis. To the extent others have said contrary things, I disagree with them on that point.” Instead, he repeated his rather lame explanation of why he said in 1988 that he supported the Bork nomination.

Schumer next turned to cases in which Alito’s Third Circuit colleagues accused him of not following precedent. Schumer actually wobbled a little bit in the course of expanding on this point, but neither Alito nor Cornyn (who followed Schumer) seemed to recognize it or be able to take advantage of it. Alito had a good answer for only one of the cases that Schumer brought up—he pointed out that he had ignored a Third Circuit precedent because an intervening Supreme Court precedent forced him to.

Alito could have said, “Look, I said that I have great respect for precedent and have tried to follow it. I did not say that following precedent was easy or simple. It isn’t. It often requires interpretation to figure out the principle a precedent stands for, or which precedent among several possible precedents is most on point. Different judges trying to apply precedent in good faith will reach different conclusions, and therefore any judge will sometimes find his colleagues saying that he has departed from a proper reading of the precedents. In some cases I have probably said that a colleague has mangled the precedents, but generally that meant that I disagreed with them about what following precedent entails, not that I thought they were less than conscientious judges.”

Oddly enough, Schumer, who started out by suggesting that the quotes from Alito’s colleagues proved that he was a hypocrite, and not a real follower of precedent at all, had half-retreated by the end of his discussion of the issue to the banal claim that people disagree about precedents and that therefore it was wise not to read too much into a judge’s professed fealty to precedent. That unforced concession on his part could have been another opportunity for Alito to explain that yes, there are differences of opinion on what precedent entails, that knowing that a judge respects precedent will not always tell you how he will come out in a particular case, and that there is nothing earth-shattering about this fact.

Alito instead came back with a good point about his record of abortion decisions, which Schumer parried with a true, though irrelevant, counterpoint.

Cornyn closed out the session in a way that seemed highly defensive of Alito. He opened his remarks by suggesting that Schumer had been asking Alito whether he had stopped beating his wife. Again, it certainly seemed as though Cornyn was portraying Alito as a victim of bullying—not someone who had successfully dismissed baseless criticisms, but someone who had suffered a setback.

Cornyn was defensive about Alito, but not terribly focused. Where Schumer had a fairly clear agenda and honed in on it, Cornyn seemed to be making a bunch of random pro-Alito points (he’s as mainstream as O’Connor, dead liberal judges reportedly liked him, Rybar wasn’t extreme). The Feingold and Schumer exchanges were designed to make Alito look shifty, and Cornyn did almost nothing to beat back that critique. When Cornyn said “Scalito,” it was a minor slip of the tongue—but it was not the only reason to think he was not quite as alert as he should have been.

Again, I don’t think that critique seriously damaged Alito. He is still going to be confirmed, and I suspect without a filibuster. But nobody before Feingold and Schumer had, in my judgment, laid a finger on him. They did, it was unnecessary, and it would have been nice to see a more effective and immediate pushback. There’s always tomorrow.