WASHINGTON (BP)–Appearing before the Senate Judiciary Committee on the final day of questioning, Supreme Court nominee Samuel Alito Thursday said the execution of an innocent person would be the “ultimate tragedy” and indicated he would err on the side of caution in certain instances when the high court is considering a stay of execution.
Alito’s comments came the same day DNA tests in a highly publicized Virginia case showed that a man executed in 1992 was indeed guilty. The case involved Roger Keith Coleman, who was found guilty and put to death for the 1981 rape and murder of his sister-in-law. The DNA test — ordered by Gov. Mark R. Warner, a Democrat — was conducted on semen removed from the woman’s body. The sample had been stored in a laboratory for years, and death penalty opponents had long sought a DNA test.
It would have been the first time in U.S. history that a person executed would have been exonerated. Coleman claimed innocence up until his death.
Alito’s testimony capped approximately 18 hours of testimony in which he answered some 700 questions. Although only two rounds of questions were originally scheduled, committee Chairman Arlen Specter, R.-Pa., allowed senators to extend into an abbreviated third round, which concluded around lunchtime Thursday. Only a handful of them — mostly Democrats — used the extra time.
A committee vote on Alito is scheduled for Jan. 17, with a vote before the full Senate slated for Jan. 20.
Sen. Patrick Leahy, D.-Vt., asked Alito “whether the Constitution permits the execution of an innocent person.”
“The Supreme Court’s decisions since 1976 dealing with the Eighth Amendment have attempted to create a whole set of procedural safeguards to make sure that the death penalty is not imposed arbitrarily or capriciously,” Alito said. “… That’s the ultimate tragedy that could possibly occur in our criminal justice system, and we should do everything we can to prevent that from ever occurring.”
The Constitution, he added, “is designed to prevent that.”
Leahy also asked Alito his view on the Supreme Court’s so-called “rule of four” — an informal rule that is used when justices are considering staying an execution. According to the rule, if four justices agree to a stay, then a fifth justice will join the group, simply as a matter of courtesy to allow the case to be heard.
“I had not heard of this rule until the hearings for Chief Justice Roberts,” Alito responded, “but it seems to me to be a very sensible procedure, because I think we all want to avoid the tragedy of having an innocent person executed or having anyone executed whose constitutional rights have been violated.”
Referring to the Terri Schiavo case, Leahy asked Alito whether the Senate Judiciary Committee could subpoena someone who was going to be executed if its members thought the person was innocent. During the Schiavo controversy in 2005, some congressional committee tried unsuccessfully to subpoena Schiavo in an attempt to prevent her from being starved to death.
“It’s not a question that I ever thought of. Sitting here I can’t think of an objection to it, but I would have to hear whatever arguments there were to be made,” Alito said.
On other issues:
— Alito was asked to what extent Supreme Court justices are bound by their previous rulings.
“It isn’t an absolute requirement to follow a prior precedent, but it is the presumption that the court will follow its prior precedents,” he said. “… My view is that you need a special justification for overruling a prior precedent, and … reliance and reaffirmation are among the factors that are important. But I’ve said it’s not an inexorable command. In the area of constitutional law, there has to be the ability to revisit a case like [the pro-segregation decision of] Plessy vs. Ferguson. I don’t think anybody would want a system of stare decisis that made that impossible.”
Stare decisis is the legal doctrine that says a court should not overturn its own decision unless there is a compelling reason to do so.
Conservatives want the Supreme Court to overturn Roe v. Wade, the 1973 decision that legalized abortion nationwide.
— Sen. Russell Feingold, D.-Wis., asked Alito whether “Congress has the power under the Constitution to prohibit discrimination against gays and lesbians in employment.”
“I can’t think of a reason why Congress would not have that power, but I would have to be presented with the arguments,” Alito said.
Feingold then asked whether Congress has the authority “to enact legislation that would protect gay students from harassment in schools that receive federal funding.”
The legal question, Alito responded, would focus on “whether the condition that’s attached to the receipt of the federal funds is germane to the purpose of the funding.” He added that the legal standard “gives Congress very broad authority” on the subject.
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