When the hearings began Monday, liberal activists said their best hope was for Alito to commit a gaffe or lose his composure.So they tried to set up opportunities for gaffes and goad him into losing his composure. They succeeded in making his wife cry, which which only hurt their cause by making them look mean-spirited and callous and by overshadowing the message they hoped would capture the news reports.
When his 18 hours of testimony ended at lunchtime yesterday, and Republican senators scurried to shake his hand, both sides agreed he had done neither.In fact, by the end of the first day of questioning (that is, the second day), the outcome seemed clear. Most Americans, I think, if they were tuned in at all, saw how things were going and tuned out. To stimulate their outrage and make defeating Alito a possibility, something very unusual would have had to break out of the tedium of the Senate and get people thinking that the nomination was still in play. But we watch politics selectively, and we're good at seeing which things are rolling toward predictable outcomes and which things deserve our attention.
I will be interested to see which Democratic Senators decide to vote against him. I'll invoke my favorite Hillary Clinton quote (spoken about the vote on John Roberts): "They will do what they think is in their interest, however they define it."
Will any of the 22 Senators who voted against Roberts turn around and vote for Alito? It's hard to see why. But will any of the 22 Democratic Senators who voted for Roberts see reason to vote against Alito? Perhaps they will.
In that group are my two Senators Russ Feingold and Herb Kohl. I am especially interested to see how Feingold will vote, because I assume he is running for President. Hillary Clinton has already voted against Roberts, so I expect her to vote against Alito. Feingold has already distinguished himself from her, and I'm sure if he wants, he can give excellent reasons for distinguishing Roberts from Alito, and a combination of yes and no votes might serve him well, making him seem to be evaluating the judges in a fair, nonideological manner. He could draw attention to the concerns about expansive executive power, which have grown in the time since the Roberts vote. The changed circumstances alone could justify a different vote on the two men.
Nevertheless, I think Alito deserves a yes vote. To vote no based on his performance at the hearings is to set the expectations too high for the next nominee. We need to worry that good people will decline to be nominated. And Democrats will some day have the power of appointment again. Their treatment of Alito will serve as an example to Republicans as to how far they can go in attacking that new nominee.