but I’ve been on the road all day, and this is my first chance to comment on the nomination of Judge Alito. From everything I can tell, it’s a terrific selection, the only question being whether he will be confirmed. It was never going to be easy to confirm a solid conservative with a long judging track record, and events surrounding the Miers nomination have probably made things a little more difficult. Everything depends on how the members of the gang of 14 (plus Arlen Specter) break on this. Enough Republicans in this group likely will support Alito to give the president the votes he needs to win an up-or-down vote. I’m less sanguine about (a) whether enough Democratic members will abstain from filibustering to avoid the need for the nuclear option and (b) whether the Republicans will have enough spine to invoke that option if they need to.
The key, I think, will be the nominee’s excellence. If he can come close to matching Chief Justice Roberts’ performance during his hearings, and if Senators Biden, Kennedy, Feinstein, and Schumer match their performance, then one way or another Alito likely will be confirmed.