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Posted by on Jun 19, 2009 in At TMV | 18 comments

Elections Have Consequences, Part 278

I come before you today not to praise the Chief Justice of the Supreme Court of the United States, but to condemn him. I say this to you as one who defended the nomination of John Roberts by George W. Bush. While I fretted over the potential fallout, I maintained then, as I do now, that the president had the right to select his own nominee and that Roberts’ qualifications far exceeded the minimum bar, even as he brought gravitas and powerful writing skills to the bench. This week, however, my fretting at the time has proven well founded.

In an appalling 5-to-4 ruling on Thursday, the Supreme Court’s conservative majority tossed aside compelling due process claims, the demands of justice and a considered decision by a lower federal appeals court to deny the right of prisoners to obtain post-conviction DNA testing that might prove their innocence.

Writing for the majority, Chief Justice John G. Roberts Jr. noted the “unparalleled ability” to prove guilt or innocence using DNA evidence. But he treated that breakthrough more as an irritant than an opportunity.

The availability of conclusive DNA testing, he wrote, “cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt.”

The fact that a justice can recognize the potential of new technology to render a far more conclusive result and then turn his back on it because of the inconvenience it might cause to the legal system is beyond “appalling” by any measure. In a fairly rare instance, I find that I must agree with Matthew Yglesias here.

Obviously, the purpose of the established system of criminal justice is to use punishment of the guilty as a means of controlling crime. The general hostility of most people in the law enforcement and prosecutorial universe to exonerating evidence is a little bit hard to understand.

This isn’t the first time that Roberts has steered the ship of justice directly toward the rocks. Yglesias points to a very apt description from Jeffrey Toobin in the New Yorker.

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.

It’s interesting to me that I was engaged in a debate on this subject back in the very early days of 2008 with my friend Ed Morrissey. He was, in only a half joking way, working at that time to ensure that if nothing else happened, I would not vote for Hillary Clinton in the fall of last year. We didn’t even have a Democratic nominee at the time, so the conversation was entirely hypothetical. But during that period I had spent a lot of time reflecting on the makeup of our highest court, the recent changes we had seen and what it portended for the future.

At that time, I spent a brief period concluding – as I told Ed to his great dismay – that regardless of how I felt about a variety of domestic and foreign issues, I would wind up voting for whoever the Democrats nominated (yes.. even Hillary) just to avoid having John McCain put another Robers or Alito on the bench. I later decided that the “small L” libertarian leanings and fiscal conservative promise of Bob Barr were too much to resist, and he got my vote. But decisions like the one above almost make me wish I’d cast my lot with Obama, no matter how badly I feel he is handling the economy.

George W. Bush was perfectly within his rights to select Roberts, and the Chief’s credentials remain everything they must be to hold his position. But the man has been nothing short of a disaster for the direction I want to see our highest court going, and if Obama does nothing else right, I hope he at least gets to beat back the tide there. Failing that, he needs to at least preserve the status quo.