Osborne makes appearance at Sotomayor hearings

Life must be sweet when you are the president's favorite senator. I've never known a whole lot about Illinois Senator Dick Durbin, but at today's hearing for Supreme Court nominee Judge Sonia Sotomayor, he was able to cover the death penalty, the overcrowded prison system, crack versus powder cocaine disparities and the Osborne DNA testing case, all in less than his allotted time.

As any observer can tell, these judicial hearings are largely about showmanship, senators trying to reduce serious legal issues to soundbytes, and nominees working hard to avoid giving any opinions at all. But this site is excited to see the issue of DNA raised at such a high profile hearing. Here is the relevant transcript:

DURBIN: And this is a recent case before the Supreme Court I'd like to make reference to, D.A.'s Office v. Osborne, involving DNA. It turns out there are only three states in the United States that don't provide state legislative access to DNA evidence that might be -- might exonerate someone who is in prison.

I am told that, since 1989, 240 post-conviction DNA exonerations have taken place across this country, 17 involving inmates on death row. Now, the Supreme Court in the Osborne case was asked, what about those three states? Is there a federal right to access to DNA evidence for someone currently incarcerated who questions whether or not they were properly charged and convicted? And the court said, no, there was no federal right, but it was a 5-4 case. So, though I don't quarrel with your premise that it's our responsibility on this side of the table to look at the death penalty, the fact is, in this recent case, this Osborne case, there was a clear opportunity for the Supreme Court right across the street to say, "We think this gets to an issue of due process as to whether someone sitting on death row in Alaska, Massachusetts or Oklahoma, where their state law gives them no access, under the law, to DNA evidence."

So I ask you, either from the issue of DNA or from other perspectives, isn't it clear that the Supreme Court does have some authority in the due process realm to make decisions relating to the arbitrariness of the death penalty?

SOTOMAYOR: The court is not a legislative body. It is a reviewing body of whether a particular act by a state in a particular case is constitutional or not. In a particular situation, the Court may conclude that the state has acted unconstitutionally and invalidate the act, but it's difficult to answer a question about the role of the Court outside of the functions of the Court which is we don't make broad policies. We decide questions based on cases and the principles implicated by that particular case before you.

This answer could have been given by nominee Robers or Alito. I imagine the last thing Sotomayor would want to do during her otherwise smooth confirmation is criticize a very recent and controversial Supreme Court decision. In Osborne, Justice Stevens quite forcefully castigated the state of Alaska's inability to articulate a sound reason for denying Osborne the opportunity to test the DNA evidence at his own expense. Justice Stevens, joined by Justices Ginsburg, Breyer and Souter, asserted that Alaska violated the Due Process Clause by failing to provide Osborne adequate procedural protections for the postconviction relief.

The question that Senator Durbin wanted Sotomayor to answer, however, was whether the Court should find a federal right to DNA evidence. On this issue, Justice Souter defected from his liberal colleagues, disagreeing that the Fourteenth Amendment provided a substantive due process right to DNA evidence. Souter's reasoning was that the Court should proceed cautiously in granting substantive due process rights before the public has had the full opportunity to consider an issue, referencing, among other issues, Roe v. Wade.

This notion of caution is understandable, if not impracticable. The Supreme Court spend most of the first fifty years of the 20th century dreadfully lagging behind public opinion until the Warren Court, when it became far more progressive than the public. The Burger and Rehnquist Courts tacked right, as went the nation, but the Roberts Court looks out of touch in the age of Obama. In short, what Souter is describing is a largely hopeless task, and one antithetical to his ideologically minded colleagues anyway. Justices should not wait for the public to "catch up" when it comes to issues of substantive due process rights; after all, the public is not as informed on the issues as Supreme Court Justices are.

Without reading into Sotomayor's response to Senator Durbin too much, given the extremely cautious environment they were made in, they came off as... cautious. We already know President Obama has been a far more cautious leader than he was a candidate. Without editorializing further on Osborne, Souter, or his presumptive replacement, Sotomayor, I will only say that on the difficult DNA issues the courts will face in the coming years, I would rather defer to wisdom than caution when the two part ways.