Is It Over?

Given Judge Alito’s strong performance it is tempting to believe that the fight is over and confirmation is inevitable — I am certainly inclined to believe this myself. But it is not clear that fat lady has sung just yet. There may still be efforts to delay the confirmation vote or manufacture a scandal. Nightline is apparently planning a show on CAP, and there is little reason to believe the anti-Alito groups are ready to go down without a fight. Barring some last minute revelations or accusations, there is no obvious line of attack, but here is a possibility: Quite a few Democratic Senators asked Alito the same questions they asked then-Judge Roberts. Insofar as Alito gave slightly different answers, they may seek to paint him to Chief Justice Roberts’ right. Such a tactic may be especially likely from those Senators, like Leahy, who voted for Roberts’ confirmation. Only time will tell.

Jonathan H. Adler — Jonathan H. Adler teaches courses in environmental, administrative, and constitutional law at the Case Western Reserve University School of Law.

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