I don't believe (as apparently CNN does) that the Death Penalty will be a big issue in the Roberts confirmation debates. It seems pretty well-settled that the right place for these arguments is in the political arena - for Congress and state legislatures to decide.
But Justice Stevens seems to think now is the time to talk about his opposition to the death penalty (though I doubt there are many people surprised he holds this view).
But here's a question - if Justice Scalia recused himself in the Nedow case for making a speech about the Pledge of Allegiance, will the usual suspects be clamoring for Justice Stevens to recuse himself the next time a death penalty case comes up? I would think that Justice Stevens should be required to recuse himself. When a prosecutor tries a capital case, he may dismiss, for cause, any juror that has fundamental issues with the death penalty. That is, he is entitled to a "death-qualified" jury - one that has expressed a willingness to impose the death penalty if it is called for. Why shouldn't the people of this country be entitled to a Supreme Court that is "death-qualified" - one that can objectively weigh a death penalty case without bringing personal opposition into the equation? Seems to smack of partiality and bias to me.
My own view is that Roberts was right in 1983 when he said that the Supreme Court should stop playing "fourth or fifth guesser" in death penalty cases. By the time a capital case reaches the Supreme Court, the case has been ruled on by a trial court and appealed to two state appeals courts (usually) on any constitutional issues. Then it goes to the Court - so they are usually the 4th Court to look at the issues. It says much about what the Supreme Court thinks of both itself and the state supreme courts that it takes these cases from, when it second-guesses the factual findings made by those state courts. And all of what it says is arrogant and self-important.
I don't begrudge or disapprove of the Supreme Court looking at capital cases where there is a legitimate issue of constitutional validity - capital cases have the potential to raise important 4th, 5th, and 6th Amendment questions. But many cases that wind up before the cases are nothing more than the arrogance of 4 members of the Court deciding that they want to muck around in the factual findings made by three different state courts and have little to do with constitutional questions. It is these latter cases that have to go. Unfortunately, Justice Stevens has exposed himself as a reliable vote for all death-row inmates looking for another bite at the apple.
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