Welcome to the machine

Much has been made of President Obama's listing of empathy as a relevant criteria for his Supreme Court nominees. Federalist judges and their supporters scoff at the idea that a jurist empathize with the real world implications of their rulings, preferring a matter of fact originalist application of the constitution and appropriate case law. Ideally, such readings should be performed under candle light, since electrical illumination had not yet been conceived during the time of our founding fathers.

Last week's narrow 5 to 4 ruling on the right of defendants to challenge their convictions with DNA evidence reaffirms the President's concern for the court's seeming inability to understand the effects it's rulings will have on the citizens of our country and fair justice for all. The conservative block will not allow defendants to get tested for exculpatory evidence, even when the scientific testing was not available at the time of their conviction.

Chief Justice Roberts said, "The challenges DNA technology poses to our criminal justice systems and our traditional notions of finality are better left to elected officials than federal judges." "A criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man,'' Chief Justice John G. Roberts wrote for the majority, ruling that such matters should be left to the states.

This is typical Roberts. The son of a corporate lawyer, he is more interested that the well oiled judicial machine run smoothly than the guilt or innocence of the players. I quote once more from Jeffrey Toobin's recent piece in the New Yorker on Roberts:

After four years on the Court, however, Roberts’s record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.

I had an old cop friend, the late Frank Adams, who always said that it was better for a few innocent men to get punished than to let a hundred guilty people go free. I expect that Scalia, Thomas, Alito, Kennedy and Roberts would agree. And it is clear to me that Obama is on the right track in seeking nominees who feel a responsibility for doling out fair justice, not just greasing up the prosecution machine.

Unfortunately, our President may be speaking out of both sides of his mouth, since Attorney General Holder urged the court to continue to deny the DNA evidence. The Innocence Project estimates that 240 people have been exonerated with DNA evidence, 17 of them on death row. While 47 states have procedures in place for DNA testing, some are clearly inadequate and three do not, including Alaska, where defendant Osborne, the subject of the ruling, was tried.

If people are to regain their faith in their government, we need justices and elected officials who understand the fundamental moral question of right and wrong and who have an elementary concern for the rights of the wrongly accused and the innocent.