In the ten minutes it took me to drive to the gym, and the twenty to the office, I heard enough on the Alito hearings to terrify me.
First, he said he'd never heard of the Rule of Four. Did he not go to law school? Does he not read the papers and legal journals? It comes up ALL THE TIME in death penalty cases - and he says he'd not heard of it until the Roberts hearings? What does that mean? Either, as Nina Totenberg suggested, he's such an ivory tower academic that real world events pass him by, or he's just, well, weird.
But FAR FAR more chilling to me were his comments on the death penalty.
Sen. Leahy was questioning him on what would happen if a jury convicted, a court of appeals affirmed, and the Court either affirmed or didn't grant cert. I.e. all set to inject. And then suddenly DNA evidence, or a confession of someone else (i.e. proof of actual innocence) surfaces. What happens?
First, Alito dodged, saying something like "well if he'd been found guilty beyond a reasonable doubt," which Leahy smacked him down on with something to the effect of "being found guilty by a jury and actually being guilty are two different things." (And lord knows that's true - all you have to do is follow recent death penalty exonerations to know that).
And then Leahy asked him: "Does the Constitution countenance the execution of an innocent person?" To which he replied, "The Constitution is designed to prevent that."
Those are entirely different things! Congress, in its wisdom, is making Habeas petitions even more difficult, to the point where convicts won't be able even to raise claims of actual innocence. Sure, the Constitution is designed to ensure maximum due process, but that doesn't mean that it always succeeds. Alito seems to believe that if all the procedures are followed, an innocent man can go the gallows. At least Roberts said that no, the Consitution does not permit the execution of the innocent.
And final, this whole CAP kerfuffle. Recall that Alito put on his resume that he was a member. Recall that the CAP has quite nasty views on women, minorities, gays. After yesterday's Specter-Kennedy punch-out, the CAP files were inspected and apparently there's no record of Alito's membership.
Does this mean that, in order to please the Reagan administration in his job applications, and to burnish his conservative credentials, he lied about his membership? He found the most nasty conservative group he could think of and put it on his resume, even though he wasn't a member?
Now, we certainly all embellish on our resumes ("Managed and developed innovative client interaction strategies"="worked as salesminion at the Gap"), but to put something on there that has no foundation in truth, just to tell the prospective employer what he wants to hear, is scary.
Does that mean he's doing the same this week?
He was either lying then, or lying now.