Analyzing Alito

In the Washington Post, Cass Sunstein provides a measured look at Alito's appellate record. I have no doubt that we have a major political battle at hand, but Democrats will face a tough challenge in that Alito's record does not look to be any more conservative than Scalia's, and, by Sunstein's analysis, it might be less so. How would a filibuster be justified here when Scalia was confirmed 98-0? There will likely have to be arguments external to the judge's personal record, in reference to the overall balance of the Court or some such thing. This may take the form of arguments that Alito is not just taking any seat on the Court, but he is replacing O'Connor, a relative moderate, in whose mold the replacement should be cast. I've seen this argument implied in several places already, and I'm not sure it makes much sense. It is difficult to find historical or policy justifications for the idea that the Court needs to adhere to some particular partisan structure or another. In general I think this will be a tough fight for the opposition. Their best approach will probably be to tie this nomination as closely as possible to the White House and try to make the confirmation into a referendum on George Bush to capitalize on his falling popularity.

Update: On Alito-Scalia comparisons, Robert Gordon of the Center for American Progress (a liber think-tank) makes the case on Slate that Alito is more extreme than Scalia.

Update (11/02): For some balance, here a CSM story suggests that Alito is not a hardliner on abortion.

Yet Another Update (11/03): I had to add a link to this rebuttal to the CSM column UVA's own Richard Schragger.