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.

Elena Kagan, Ralph Reed and the Second Amendment

This Ralph Reed -- remember him? -- post at The Corner, about Elena Kagan's radical tendencies, deserves a thorough fisking. But there's one point in particular that I found interesting. And by "interesting" I mean "dishonest."

In response to questions during her confirmation as solicitor general, Kagan argued the Second Amendment right to keep and bear arms, like freedom of speech, enjoys “strong but not unlimited protection.” This is a dangerous view of the law when it leads to the creeping erosion of the Bill of Rights.

Why is this dishonest? Because if you check what Kagan said at her solicitor general hearings, it's clear that she was citing DC vs. Heller, the 2008 case that upheld gun rights. This is a fuller and untruncated quote of what she said:

Once again, there is no question, after Heller, that the Second Amendment guarantees individuals the right to keep and bear arms and that this right, like others in the Constitution, provides strong although not unlimited protection against governmental regulation.

Is that really "a dangerous view of the law?" Consider this: Kagan was basically echoing the Heller decision in making her statement about the limits of the Second Amendment -- a decision written by Justice Antonin Scalia. Scalia wrote:

Like most rights, the Second Amendment right is not unlimited.It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to castdoubt on longstanding prohibitions on the possession of firearms byfelons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Is Ralph Reed really going to say that Antonin Scalia -- about as solid a Second Amendment absolutist as you'll find on the court -- has a "dangerous view of the law?" Of course not. So if he's saying the same view of the law is dangerous when held by Elena Kagan, well, you can be sure he's doing so in the service of dishonest hackery. Ralph Reed isn't telling the truth.