Bench Memos

We Have a Winner!

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.

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.

The winning answer was submitted by Miller’s Time.

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.

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