Obama, the Right and defendants' rights

There is much criticism of the Supreme Court for denying the right of DNA testing, but the Obama DOJ supported that


Glenn Greenwald
June 20, 2009 4:21PM (UTC)

On Thursday, the Supreme Court, in a 5-4 decision (.pdf), ruled that convicted criminals have no constitutional right to access the state's evidence in order to subject it to DNA tests which could prove their innocence.  Two lower courts, a district court and the Ninth Circuit, had ruled there was such a right.  In reversing those rulings, the Court's majority was composed of its conservative Justices (Roberts (who wrote the opinion), Scalia, Alito, Thomas, and Kennedy).

Numerous liberal commentators are, rightfully, infuriated by the decision, but have been notably incomplete in their critiques.  Matt Yglesias describes the ruling as "Conservative Justices’ Strange Enthusiasm for the Punishment of the Innocent" and argues that ruling in favor of the state over defendants, the executive over the legislature, and the corporation over the individual is "conservative jurisprudence in a nutshell."   Think Progress' Ian Millhiser also blames conservatives for this perverse outcome.  Scott Lemieux, in making excellent arguments against the Court's reasoning, similarly writes that "this is your court on conservatives" and concludes that it gives the lie to the John-Roberts-claim that judges are mere neutral "umpires."  Several other liberal commentators exclusively blame conservatives for this decision.

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There's one important fact missing from all of that analysis:  namely, this was yet another case where the Obama DOJ sided with the Bush administration and advocated the position that the conservative justices adopted.  The Obama DOJ aggressively argued before the Court that convicted criminals have no constitutional right to access evidence for DNA analysis.  Indeed, its decision to embrace this extreme Bush position caused much controversy and anger back in February.  Law Professor Darren Hutchinson wrote back then:

The Office of the Solicitor General has adhered to Bush's position that the inmate does not have a constitutional right to re-test the DNA evidence, even though doing so could establish his innocence and despite the fact that his attorney will pay for the new scientific analysis of the evidence. . . .

As a state senator, Obama sponsored and lobbied for legislation that gave all inmates a post-conviction right to DNA evidence -- the same right that Osborne asserts in this case. . . . The Bush administration was not required to take a position in this case. Although the Bush administration decided to submit a brief in the case, the Obama administration could have refused to defend it, withdrawn it, or even switched position.

Indeed, the Obama DOJ rejected explicit requests from defendants rights advocates to repudiate the Bush position.  Instead, the Obama DOJ announced that Deputy Solicitor General Neal Katyal would make his debut appearance before the Supreme Court in that capacity advocating the Bush position (and that's what then happened):

The solicitor general's office has turned down a request by the Innocence Project to disavow a Bush Administration stance on prisoners' access to DNA evidence in post-conviction proceedings. As a result, on March 2, Neal Katyal will make his debut as deputy solicitor general by arguing before the Supreme Court in support of the state of Alaska's view that prisoners have no constitutional right to obtain DNA evidence that might help them prove their innocence -- even if the prisoners pay for the DNA testing themselves. . . .

In all of the commentary condemning this decision, the only acknowledgment I saw of the role played by the Obama administration was in yesterday's New York Times Editorial:

We are also puzzled and disturbed by the Obama administration’s decision to side with Alaska in this case — continuing the Bush administration’s opposition to recognizing a right to access physical evidence for post-conviction DNA testing.

Thursday’s ruling will inevitably allow some innocent people to languish in prison without having the chance to definitively prove their innocence and with the state never being completely certain of their guilt.  

There may be justifications for what the Obama DOJ did (all other things being equal, government lawyers tend to prefer continuity in positions after changes in administration), but -- as is true for so many controversies these days -- it's rather difficult to heap all the blame on conservatives for something that the Obama administration itself embraces and is working to bring about.

In general, how much one criticizes Obama is largely a function of the areas on which one tends to focus.  If I had spent the week writing about Iran, I would be largely defending -- and praising -- Obama's very wise restraint, even in the face of bipartisan political pressure, when it comes to interfering in Iran's internal political disputes.  His private and public refusal to cheer on all of Israel's policies is also commendable.  Conversely, those who focus on gay issues have been understandably furious with the administration, and in the areas of civil liberties, secrecy, and his Justice Department generally, the administration has been nothing short of abysmal.  Criticizing the Right for its support of these positions is understandable, but in our modern political culture, the President is, far and away, the driving force, and those who supported him can have far more of an impact pointing out, rather than ignoring, the role he is playing in advancing these policies.

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Glenn Greenwald

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