Confirming Justice Alito?
A few thoughts on the likely confirmation of Judge Alito:
1. A significant bias is built into the system: Those who know a nominee best, or well, are unlikely to be willing to raise questions in public. I have heard from several friends of Judge Alito who do not want to see him on the Supreme Court, but who like and admire him and will not say a public word against him. The reason for their silence is personal loyalty. For lawyers and law professors generally, there is good reason to be circumspect, especially but not only if you know a nominee well: You might well make an enemy, and a lawyer or law professor doesn't much like having an enemy on the Supreme Court. (It's true that many law professors sign petitions against nominees, but the signatories rarely know the nominee personally, and many potential signatories have refrained from signing on the ground that I'm describing.) The same point holds even more strongly for lower court judges, who can easily support, and uneasily criticize, any presidential nominee. Law clerks have the same bias in even stronger form. I clerked for Justice Thurgood Marshall, who was, on many issues, far to my "left"; but even now, long after his death, it's not comfortable to criticize my old boss.
2. Judge Robert Bork might be having the last laugh. At one point in the hearings, Judge Alito said this: "I think that we should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption." This is of course Judge Bork's approach to the Constitution, and it is part of what got him in so much trouble in the confirmation process. To date, there has been hardly a murmur of interest in Judge Alito's statement. (Admittedly, one reason may be his embrace of precedent, which will often forbid use of the original understanding; and Judge Alito did not address particular issues in the way that Judge Bork did.)
3. Many people have said that Chief Justice Roberts and Judge Alito are indistinguishable, and it's easy to see why: They have similar careers and they're both strong lawyers and fine judges. But their records are quite different. On the bench, then-Judge Roberts produced a body of work that was hard to characterize in ideological terms. On the bench, Judge Alito issued dozens of noteworthy dissenting opinions, often to the right of one or two Republican appointees. None of these opinions was reckless or irresponsible. But the overall pattern is entirely different from what could be found in then-Judge Roberts' record. In the confirmation hearings too, Judge Alito sometimes sounded different from, and less moderate than, Judge Roberts. A sidenote: Interestingly, neither of them embraced Justice Harlan's approach to the privacy issue, as (if I recall correctly) did both Justice Kennedy and Justice Souter. This is another potentially pleasing point for Judge Bork.
4. It seems clear, as of this writing, that Judge Alito will be confirmed; should he be? The answer depends on one's view of how to evaluate potential nominees. For those who think that ability and integrity are enough, there is no problem at all; Judge Alito has a great deal of ability and unquestionable integrity. For those who think that Justice Scalia and Justice Thomas have the right approach to the Constitution -- or who would be happy with someone who thinks broadly along the lines of Chief Justice Rehnquist -- there is certainly no reason to object to Judge Alito. For those who do not think that the Court should have someone likely to be to the "right" of Justice O'Connor or Justice Kennedy, confirmation is a mistake. (You never know to an absolute certainly, but a sensible guess is that Judge Alito will be to their right.)
The question is harder for those who believe that ability and integrity are not enough, who strongly reject the approach of Justices Scalia and Thomas, but who believe that the President certainly ought to have the discretion to select someone who does not follow in the track of Justice O'Connor and Justice Kennedy. Among such people, there is room for reasonable disagreement, with the conclusion turning on a judgment about the extent of the President's discretion, an assessment of what Judge Alito is likely to be like, and an evaluation of what "points," on the relevant spectrum of likely votes, are really most troublesome.