I have been too swamped with teaching and writing commitments to comment on the nomination of Judge Alito. I cannot say that I am enthused, however, which also probably accounts for my silence on the subject. To appreciate my reservations take a look at one endorsement of the Alito nomination by the thoughtful law professor David Wagner in the Weekly Standard, entitled, Alito and "Rational Basis." In particular, consider his final paragraph:

More importantly, Judge Alito's Casey opinion shows him to be faithful to the judicial duty not to "legislate from the bench," an overused phrase which means simply that judges should go the long mile before substituting their views for those of the people's elected representatives.

This view of the role of judges was perhaps the New Deal's most bipartisan achievement. The departures from it during the heyday of the Warren Court produced friction among the liberal Justices appointed by FDR (notably between Douglas and Frankfurter), as well as controversy with a new generation of conservatives who saw the New Deal-type of rational basis test as key to preserving the democratic accountability of public decision-making. Conservatives felt odd, and still do, defending a New Deal doctrine (and being attacked for it from the left). But this particular New Deal doctrine is an established tradition with bipartisan support, and Judge Alito's Casey dissent show him standing squarely within it. Nothing could be more mainstream.

I plan to say more about this in my Federalist Society Convention talk on November 12th.

I fear that the Federalist Society coalition may be at a crossroad that was brought to a head by the split between justices Scalia and Thomas in Gonzales v. Raich. I am thinking a lot about this now because (a) I am teaching the case next week in Con Law, (b) I am reading the papers in a Symposium on Gonzales v. Raich in the Lewis & Clark Law Review so I can write the Foreword to the issue (the papers are really good, though depressing), and (c) our brief in the case asserting our Due Process Clause claim is due to the Ninth Circuit on November 23d.

The doctrinal crossroad involves, not the Commerce Clause, but the Necessary and Proper Clause. In Raich, Justice Scalia endorses the Roosevelt New Deal Court's approach to that clause; while Justice Thomas endorses Madison's approach. To the extent that we can predict justices Roberts and Alito will side with Roosevelt/Scalia over Madison/Thomas, then their appointments represent the triumph (once again) of Rooseveltian judicial restraint over the text and original meaning of the actual Constitution. It is hard to be cheerful about this development. Of course, we cannot know for certain which direction they will take, but a strong professed commitment to precedent—read: New Deal precedent—which is the preference also expressed by Justice Scalia in his "fainthearted" (his term [862], not mine) approach to originalism, harbingers the triumph of Roosevelt over Madison—ironically with the endorsement of a goodly portion of the Federalist Society.

But then again, that's just my opinion (today). I could be wrong.

Update: Oh yes. Based on this assessment, I predict that, like Chief Justice Roberts, Judge Alito will be easily confirmed by the Senate without a fillibuster. This is not the battle some were waiting for.