Topic: The Eighth Amendment and the Death Penalty
Senator: Durbin
Date: SEPTEMBER 13, 2005
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SPECTER: Senator Durbin?
DURBIN: Thank you, Mr. Chairman.
Judge Roberts, Mrs. Roberts, family and friends, the end is near, at least for this leg of the race.
Welcome to "Night Court."
(LAUGHTER)
I was struck by a question and answer by Senator Grassley to you earlier today. The question was this: Is there any room in constitutional interpretation for the judge's own values or beliefs? And your response: No, I don't think there is. Sometimes it's hard to give meaning to a constitutional term in a particular case, but you don't look to your own values and beliefs. You look outside yourself, to other sources.
Judge Roberts, I recently finished a book about Justice Blackmun and his service on the Supreme Court, and it was a fascinating book about his life on the court and his life in the federal judiciary.
And I found it interesting that near the end of his term on the court, a couple cases occurred which really spoke to the heart of the man. One was DeShaney v. Winnebago County, a poor little boy who had been beaten and abused, left retarded, by dereliction of duty by many of the county officials or state officials in Wisconsin in an effort by his mother to hold them accountable.
And they failed in the Supreme Court, but Justice Blackmun wrote a dissent, which he prefaced, "Poor Joshua." And he said at one point, in response to someone who wrote him afterwards about the court, "Sometimes we overlook the individual's concern, the fact that these are live human beings that are so deeply and terribly affected by our decisions."
The other thing that occurred in Blackmun's legal career, his judicial career, was a real change in his view on the death penalty. And I think most of us are aware of the famous statement which he made: "From this day forward, I no longer shall tinker with the machinery of death."
DURBIN: The last case that he voted with the majority on, in favor of the death penalty, was a case that you were involved in, the Herrera case. You were deputy solicitor general, at that time.
It involved the case of individual in Texas who had been accused of killing two police officers. He tried to reopen his case, offering evidence that his brother, who had since died, had actually been the killer.
He turned to the federal court because he lost his time for reconsideration of the case by Texas law. He argued a claim of actual innocence.
Justice Blackmun, in his statement at the end of this case, said: "Of one thing, however, I am certain. Just as an execution without adequate safeguards is unacceptable, so too in an execution when a condemned prisoner can prove that he is innocent. The execution of a person who can show he is innocent comes perilously close to simple murder."
That was a dissent -- or, I should say, a Blackmun opinion in that case -- that addressed your position that you had espoused as deputy solicitor general.
Did you read that -- Blackmun?
ROBERTS: Yes, Senator, I did.
DURBIN: Were you struck by the language there? And the reason I ask that question is, it's been 11 years since we've had a Supreme Court nominee before us, and a lot of things have happened in relation to the death penalty in America.
We look closely at defendants who are young, those who are not mentally sufficient to stand trial. And we also now have the issue of DNA.
In my state of Illinois, we found 12 people on death row who were innocent people, and the Republican governor pardoned them after the evidence came out.
Tell me in that context, as you look at this, and talk about what appeared to be a very sterile and bloodless process, as you answered Senator Grassley, tell me goes through your mind and your heart when you think about addressing the death penalty, what happened in the Herrera case, and what we should look to from the court in the future when it comes to the Eighth Amendment and the death penalty.
ROBERTS: Well, I think it's important, first of all, to appreciate that the issue in the Herrera case I think was misportrayed as an issue of actual innocence. The issue in the Herrera case is: At what point should new claims, in this case the claim after his brother died -- "Well, guess what? I didn't do it, my brother did it, and he's dead now." That is to some extent a claim of innocence. But it's the sort of claim that did not have, as the courts determined there, sufficient factual support to be taken seriously.
That's quite different from a claim, for example, of the DNA evidence. Now, that's an issue that's working its way up and I don't know want to comment on it other than to say that it seems to me that that type of claim, that somebody who just died was the actual murderer, is different from the scientific issue. They're just different cases.
So I don't think that one should be taken as suggesting a view on the other.
Obviously, any case involving the death penalty is different. The court has recognized that. The irrevocability calls for the most careful scrutiny.
It is not an area in which I've had to consider cases as a judge up to this point.
And I certainly know the magnitude of the concern and the scrutiny that all of the justices bring to that question. It's just different than other cases. There's no doubt about that.
And DNA evidence obviously I think is a very important and critical issue.
No one wants an innocent person executed, period. And the availability of that type of evidence, that opportunity in some cases I think is something that's a very significant development in the law.
Now, as I said, there are cases coming up in there, so I don't want to say anything further on that.
DURBIN: I understand that.
It is unfortunate that the decision was made by the White House not to provide the memos and writings on the 16 cases when you served as deputy solicitor general. This was one of the cases, Herrera.
And so we might have learned a little more about the thinking at that time that led to your conclusion.
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