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?Too bad Alito has to play nice and can't say Duh, Senator, don't you know what "hypothetical" means?
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.
January 11, 2006
A passage from the Day 2 transcript: