National Review's Bench Memos on Alito's 1st Vote (Truth Butchered by MSM)

National Review ^ | February 2, 2006 | Jonathan Adler & Ed Whlean

[new yorker 77]

Re: Alito at Work
[Jonathan Adler 02/02 09:45 AM]
Ed may be right that the record is ambiguous, but according to two reports we know that Justice Alito did participate in orders after being sworn in, including another order relating to the same case. We also know that it would be customary to indicate that Justice Alito did not participate if that were the case, and there was no such indication. Assuming this is the case, does it matter? Not really. Justice Alito was on the Court for scarcely a day when this occurred, and the 8th Circuit Court of Appeals (which is the circuit to which Alito is assigned) had voted for the stay 9-1. Assuming that Alito is generally skeptical of many last minute death row petitions, it would certainly be prudent not to dissent on one’s first week on the job, particularly in a case in which one’s vote would not make a difference. So, I don’t think it is fair to see the vote as having any ideological significance. If anything, it is just further evidence that Justice Alito is a cautious, prudent jurist – something his supporters have maintained all along.

Re: Alito at Work
[Ed Whlean 02/02 07:42 AM]
It's not evident to me that the record is clear whether and how Alito actually voted on this matter.

Alito at Work
[Jonathan Adler 02/01 11:20 PM]
On the Supreme Court for scarcely more than 24 hours and Justice Alito casts his first vote — with Justice Kennedy the Court's liberal wing to stay an execution pending in Missouri. Details here — and here.

[new yorker 77]

Re: Alito at Work
[Ed Whelan 02/02 09:54 AM]
Jonathan, I agree with you that it would be insignificant if Alito did vote not to vacate the Eighth Circuit's stay. Just to clarify my earlier point: As I see it (and I invite correction from anyone more knowledgeable about the practices of the Supreme Court's clerk's office), the order entered in the case would be the same whether or not Alito voted. In either event, the order would not state that Alito did not participate because he did participate: the application was initially filed with him and he referred it to the full Court.

[madconserv]

Yes he's cautious. Read this:
ALITO: Well, Senator, it is unconstitutional to execute someone who has not been proven guilty beyond a reasonable doubt. Now, depending...





LEAHY: They may have been found guilty beyond a reasonable doubt, is what I'm saying. And then as a lot of these people were on death row and had to be commuted at the last moment when they -- a few days before the execution they found, whoops, they have the wrong guy.





ALITO: That's the ultimate tragedy that could possibly occur in our criminal justice system. We should do everything we can to prevent that from ever occurring.





I have not had a case -- during my time on the court of appeals, I've had only a handful of capital punishment cases where there was a suggestion that that was a possibility.





If the evidence develops at the last minute, then I think -- and if this is -- it would depend to some degree on -- the procedures would be different, depending on whether the person had been convicted in state court or in federal court.





The first procedural step in either instance would be to file a petition with the trial court.





ALITO: If it were in state court, it would be a state collateral relief petition. And those are handled differently depending on the state. And then file a -- I'm sorry. You could go to the state court or you could attempt to file a second habeas petition in federal court and follow the procedures that are set out in the habeas corpus statute.





LEAHY: But you agree with -- I understand all the steps. Like you, I was a prosecutor. Even though we don't have death sentence in Vermont, we have real life imprisonment. And I remember those.





But you agree, though, with Chief Justice Roberts that the Constitution does not countenance the execution of an innocent person?





ALITO: The Constitution is designed to prevent that.





LEAHY: And the reason I ask this, this is something that originally raised, as I recall, in the Judiciary Committee by Chairman Specter, the Rule of Four. Are you familiar with that, where the Supreme Court?





In other words it takes five justices to stay an execution or to hear one of these cases. Usually, if there's been four that have agreed it should be, somebody will make the fifth just as a matter of courtesy.





It hasn't been followed that much recently. Chairman Specter has called it is bizarre, an unacceptable outcome, to not provide the fifth vote. He wanted to introduce legislation to codify the Rule of Four.





If you were one of the justices and you're there -- and these things always seem to happen. Everybody is scattered all over the place. Four of your fellow justices have said that they would hold, what would you do? They voted to stay an execution. They're asking you to be the fifth vote. Four have...





ALITO: I had not heard of this rule until the hearings for Chief Justice Roberts. 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.