Roberts Questioned About the Death Penalty
Sen. Patrick Leahy's staff has been live-blogging the confirmation hearing for Judge John Roberts.
7:30 p.m. Senator Durbin questions Judge Roberts about the death penalty.
Sen. Durbin is asking Judge Roberts about a question he was posed earlier: If there is room for a judge’s values and beliefs in their rulings. Sen. Durbin is asking Judge Roberts about what goes through Judge Roberts mind when he addresses cases that deal with the death penalty. Judge Roberts says that it is important to differentiate between cases that offer new scientific claims versus new personal claims. Judge Roberts says that it is important to recognize the irrevocability of the death penalty, and that it is necessary to bring additional scrutiny to those cases. Judge Roberts says that DNA evidence is an important opportunity that is a significant development in the law.
Here is the exact exchange:
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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