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Friday, December 03, 2004  

Law: Reid backs qualified Supreme Court jurists

Soon to be Senate Minority Leader Harry Reid has said some things that need saying, by someone with national stature, about the U.S. Supreme Court. The victory of George Bush in last month's election means he may appoint as many as three Supreme Court justices. Most of the justices are aging and several have battled cancer. The current Chief Justice, William Rehnquist, is on leave from the Court. He is likely dying of throat cancer. Reid says the president should consider the ability of nominees to think intelligently and write well-reasoned opinions, instead of whether they subscribe to conservative ideology.

The Associated Press reports.

WASHINGTON (AP) - President Bush should consult with Democrats on Supreme Court nominees to ensure a smooth path to Senate confirmation, incoming Senate Minority Leader Harry Reid of Nevada said Sunday.

. . .Reid suggested he may be open to the possibility of Justice Antonin Scalia as a replacement for ailing Chief Justice William Rehnquist.

"This is one smart guy," said Reid. "I disagree with many of the results that he arrives at, but his reason for arriving at those results are very hard to dispute."

Reid called Justice Clarence Thomas "an embarrassment." He added: "I think that his opinions are poorly written. I just don't think that he's done a good job."

Congress is expected to consider nominees for SCOTUS as early as January.

One of the topics a largely conservative Court must set rules in regard to is again before it: What are the rights of prisoners on Death Row? The previous decisions of the Court shed light on the ability of the justices to see and frame issues. The conclusion of the Court is that persons convicted of crimes and sentenced to death are entitled to procedural due process, both during their trials and post-conviction.

Many of the cases have arisen in Texas, where the overwhelming majority of executions occur. A tradition of ignoring procedural due process in capital cases has earned Texas courts rebukes from the Supreme Court. A case being reheard today, Miller-El v. Cockrell, 261 F.3d 445 (2003), raised an aspect of the topic.

The New York Times has the details.

Mr. Miller-El, who has been on death row since 1986, contends that prosecutors violated his constitutional rights by excluding blacks from his jury.

Writing for the majority in the Supreme Court's 8-to-1 decision last year, Justice Anthony M. Kennedy discussed evidence that prosecutors had acted improperly. Among other things, he noted, prosecutors questioned black potential jurors more aggressively about their views on the death penalty than they did white jurors.

Only Justice Thomas dissented from the decision, saying that none of the factors cited by Justice Kennedy "presented anything remotely resembling clear and convincing evidence of purposeful discrimination."

Mr. Miller-El, Justice Thomas wrote, "ignores the fact that of the 10 whites who expressed opposition to the death penalty, eight were struck for cause or removed by agreement, meaning no 'manipulative' script was necessary to get them removed."

In this context, procedural due process is being violated because the defendant was deprived of a jury of his peers by the state. Clarence Thomas is the only one of the justices who completely missed the point. The reasons why some white jurors were struck is not where attention should be focused. Whether the minority group members who would have brought diversity to the jury hearing the capital case of a black defendant were excluded fairly is the key issue. This is the kind of error that even a reasonably bright second-year law student would not make.

Harry Reid has urged Bush to avoid appointing additional embarrassments to the Supreme Court. It is advice with which I heartily concur.

Reasonably related

•The mess in Texas in regard to defendants in capital cases is the topic of a four-page article in the NYT. I recommend you read the whole thing.

•Read a syllabus of the Supreme Court's previous decision in Miller-El v. Cockrell here.

5:40 PM