I'll Take the "Wise Latina" Over Two "Death Panelists"

People who opposed the appointment of Sonia Sotomayor to the Supreme Court often cited her discussion of race, gender and judging. Although Sotmayor's analysis of this issue was tentative and layered, critics assailed her for suggesting that a "Wise Latina" would analyze issues better than other judges.

After less than one week on the bench, I definitely prefer the Wise Latina to Justice Antonin Scalia and Justice Thomas, who are clearly vying for positions on the imaginary "Death Panels" that the Obama administration is supposedly creating. In two recent death penalty cases, Scalia and Thomas voted against the inmates and in favor of execution. Sotomayor only voted in one case -- joining the liberal dissenters and voting for a stay of execution. The Supreme Court split in the cases, with a majority voting for the inmate in one case and against the inmate in the other.

The Troy Davis Case
The Justices gave more analysis in the Troy Davis appeal. In the Davis case, the Court ordered the trial judge to give Davis -- a Georgia black man convicted of killing a police officer -- the opportunity to present newly discovered evidence that was unavailable at the time of his trial. Davis argues that this evidence would prove his innocence.

Since the time Davis was convicted, most of the lead prosecution witnesses, including several individuals who identified Davis as the shooter, have recanted. Several of them assert that another prosecution witness, who was at the scene of the crime and who identified Davis as the killer, was in fact the shooter.

The Davis case has attracted the attention of many powerful individuals, including Jimmy Carter, Pope Benedict XVI, and former prosecutors and judges -- who believe Davis should have the opportunity to present newly discovered evidence that establishes his innocence.

We Do Not Care If You Are Actually Innocent: You Must Die
Justice Scalia and Thomas disagree with Davis and his supporters. Scalia's characteristically passionate dissent in the case makes him look like a bloodthirsty reaper. Scalia's dissent (in which Thomas joins) contends that even if Davis could establish his "actual innocence," this would not create a basis for a federal court to prevent his execution.

Scalia contends that federal statutory law would preclude any relief for Davis, even if he established his innocence. Accordingly, he concludes that ordering the district court to conduct an evidentiary hearing is foolish.

But as Justice Stevens argues, the statute cannot trump a constitutional violation. I suspect that several of the justices believe that knowingly executing a person who has sufficiently established his innocence would violate the constitution.

This Is Not Scalia's First Execution-Hungry Statement
This is not the first time that Scalia has expressed callousness towards a person facing execution. In McCleskey v Kemp, another Georgia case involving a black man convicted of killing a police officer, Scalia sided with the majority, which held that McCleskey failed to show that race impacted his own sentence. A study of the Georgia death penalty, however, made a strong case that race impacted the general application of capital punishment in Georgia (see prior blog posts here, here, and here).

Although the majority held that McCleskey failed to show racial discrimination in his particular case, during the Court's deliberation, Scalia sent a memorandum to the other justices that contained a shocking argument. Scalia conceded that juries and prosecutors make decisions based on race and that he did not need any more "proof" in McCleskey's case.

Scalia, however, argued that racism among jurors and prosecutors was "ineradicable." In other words, Scalia described racism as a natural part of the criminal justice system that courts could not end -- or, presumably, even remedy. Although I agree that racism is a serious problem in the criminal justice system, I also believe that courts have a constitutional obligation to remedy it.

PS: I never heard any conservatives reconcile their support of Scalia with their dislike of Sotomayor due to her vote against the Ricci plaintiffs. Voting against a party seeking a promotion is one thing; voting to send someone to the death chamber -- while conceding that race mattered -- epitomizes injustice.

Update: In the original post, I inadvertantly omitted a link to Scalia's dissent. I have updated the post to provide a link to the opinion -- which you can read here: Scalia's Dissent in Davis.