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Judge Alito's critics are once again relying on distortion and misrepresentation to malign his record. This time the focus is his record involving death penalty cases. In a recent Los Angeles Times piece, UC Berkeley Professor (and former Justice Ruth Bader Ginsburg law clerk) Goodwin Liu claimed ominously that Judge Alito's "opinions show a troubling tendency to tolerate serious errors in capital proceedings."

As former House Majority Leader Dick Armey would say, "You can't be this wrong by accident." It's just flat wrong to make this claim. In the 15 year period that Samuel Alito has been on the 3rd Circuit Court of Appeals he's only been involved in 10 capital cases. And of these Professor Liu argues that only half of the cases should even be looked at.

While looking at the more than 300 cases on the 3rd Circuit that Judge Alito has been involved in might entail a greater effort, such an approach would at least be far more comprehensive than the cramped results that reading the handful of cases yields. Unless of course, a comprehensive assessment isn't really what is sought.

In any event, examining five cases out of his entire judicial career is a futile means of achieving any significant insight into Judge Alito's legal theories. Furthermore, whatever insights that might be obtained, the specific conclusions that Prof. Liu reached based on such a limited scope are what should be considered worrisome.

According to Professor Liu, "In every one of the five contested cases, Alito voted against the inmate." Is this surprising in such a limited pool? Moreover, why the negative conclusion based solely on this result? Arguably this limited evidence could be used to argue that he is a "law and order" judge who isn't tempted by novel sociological theories about crime control. Or it could also mean that he's for free trade or any interpretation you want. If the mere result alone is the basis for your conclusion, then all manner of conclusions can occur.

In other words there is no basis for taking the results and reaching broader conclusions and certainly not in the ominous way Prof. Liu does. On the other hand, a close examination of two of the death penalty cases selected speaks volumes about Prof. Liu's views on judicial interpretation. In the first example Judge Alito dissented, in the second he wrote the majority opinion.

The first case that Prof. Liu references involves capital defendant Clifford Smith. A jury found that "Clifford Smith and Roland Alston entered a pharmacy with the intention of robbing it, that they forced three persons inside the store to lie in a prone position on the floor as they committed the robbery, and that one of the robbery victims, Richard Sharp ...... the pharmacist was ordered to lie face down on the floor, Smith proceeded to execute him with a gunshot to the head."

Furthermore, in the trial record there was ample additional evidence demonstrating that Smith actually had committed the killing. This record included forensic evidence that his partner's firearm was not discharged; evidence of the victim's blood on Smith's shoes, and perhaps most tellingly, both Smith's girlfriend Cheryl Yancy and another accomplice Yvette Barrow's testimony. The two women reported that after the men came out of the pharmacy Roland Alston shouted "Why did you shoot the mother*****, why did you shoot him?" Both eyewitnesses separately reported that Smith's answer was "I had to, I had to." Both would add later that Smith demanded a ring -- part of the proceeds of the robbery -- arguing that he deserved it since "he killed the man." Ultimately Smith was tried and found guilty and given the death penalty by his jury.

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