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Innocence, justice, and Antonin Scalia: Why I'm rooting for Elena Kagan

Radley Balko notes that the Ninth Circuit Court of Appeals is refusing to hear the habeas corpus petition of a man who has established his innocence in the sex crimes for which he was convicted. Why the rejection? Because the dude filed his petition after the deadline.

Balko:
By the panel’s reckoning, adherence to an arbitrary deadline created by legislators is a higher value than not continuing to imprison people we know to be innocent.
The circuit court's decision is horrifying -- but its logic isn't that surprising. Why? Because that's the exact same logic that Supreme Court Justice Antonin Scalia has used. Remember this?
This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is "actually" innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged "actual innocence" is constitutionally cognizable.
And this is why I'd rather see Elena Kagan, Sonia Sotomayor or any other "empathetic" judge on the court than some Scalia wannabes who are faithful to a very narrow interpretation of the Constitution. Fidelity to the law is important; fidelity to justice, while perhaps more abstract, is also important. Antonin Scalia's jurisprudence is one that easily lets people be executed or rot in jail for crimes they didn't commit. And Republicans regularly name him the justice they love most. Horrifying.

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