As I’ve noted, the Supreme Court will hear a major campaign finance case on January 17. January 17 has now been announced as the target date for a Judicary Committee to vote on the nomination of Judge Alito for Justice O’Connor’s seat. Thus, even if all goes according to plan and there is no attempted filibuster of Judge Alito’s nomination, Justice O’Connor is going to be on the bench for the WRTL argument. If Judge Alito is confirmed, Justice O’Connor won’t be there fore the decision in the case.
There is good reason to believe that without Justice O’Connor the current Court could divide 4-4 on the lurking question in WRTL: is it constitutional to bar corporate expenditures in candidate elections? If that’s the case and Judge Alito is confirmed, expect a reargument of the case before any decision, where Judge Alito’s vote will be pivotal to the outcome.