Bench Memos


Until I take a closer look, I’m refraining from commenting on Samuel Alito’s jurisprudence. But politically, his nomination to the Supreme Court is brilliant, and may prove to be the hinge on which some important history turns. There can be no doubts about the qualifications, or the depth of knowledge required to serve on the Supreme Court, of a nominee who has served on a federal circuit court for 15 years without a black mark against his ethics or his competence there.

So everything will turn on just what Senator Charles Schumer has been harping on for the last four years: what Samuel Alito thinks about the Constitution, and about the role of the judge under that document. The Schumer wing of the Democratic party, brought to a fever pitch by People for the American Way and the Alliance for Justice, will shrilly denounce Alito (it’s already begun, right?) and demand that every tactic be used by compliant senators to defeat his ascent to the high court. George W. Bush has effectively said, “bring it on!” Now the question is, will they bring it? Will Democratic senators do the bidding of their party’s activist groups in sufficient numbers to cause Alito’s nomination any serious trouble or even mildly bothersome delay?

I don’t think so. I think it has largely been bluff and bluster, and the president has called the bluff. Schumer and a few others will attempt to give Alito heartburn during the hearings. I hope the judge is entirely forthcoming in answer to questions from senators of both parties. But whatever answers he gives, here’s what I predict:

1. There will be no filibuster attempt. If Harry Reid doesn’t quash the idea himself, he will be persuaded to do so by his own caucus.

2. A significant number of Democratic senators who announced themselves “very concerned” about Alito’s presumptive views on “a woman’s right to choose” and other matters will nevertheless vote for him in the end.

3. No more than one or two Republican senators will vote against him.

4. Arlen Specter will not be one of those opposed.

5. The final vote in favor of Alito will be more than 60 senators, possibly more than 65.

I repeat that I stand by these predictions no matter what is asked and answered in the hearings. So be candid, Judge Alito.

You heard it here first.

Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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