Bench Memos

Prediction: Alito Over 60 Votes

The week Judge Alito was nominated to replace Justice Sandra Day O’Connor I predicted that he would garner just over 60 votes in favor of his confirmation. My guess was 62-38 – enough to show serious Democratic opposition, and the clear ability to filibuster a subsequent pick to replace a more liberal justice, without triggering the nuclear option – which would leave Democrats defenseless to stop another nominee should there be another retirement before Bush leaves office. As Alito’s confirmation hearings approach I think that prediction still makes sense.

Jonathan H. Adler is the Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His books include Business and the Roberts Court and Marijuana Federalism: Uncle Sam and Mary Jane.
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