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Other Columns by Horace Cooper
Judge Alito And The Death PenaltyBy Horace Cooper December 2, 2005 Page 3 of 3
But in any event Judge Alito took the commonsense view that since the jury had listed other bases for their decision as well, there was no risk that merely because the pre-printed questionnaire given the jury listed the "wantonly vile, horrible or inhuman" language as an option meant that it was the jury's primary basis for its decision. As shocking as it may be to Prof. Liu, the jury may have concluded that capital punishment was precisely the appropriate penalty for Mr. Flamer.
Amazingly, Prof. Liu concludes that since four judges on the 3rd Circuit in written dissents disagreed with this decision it means the ruling is somehow troublesome. What a standard -- when Judge Alito dissents, his decisions are "troubling." And even when he's in the majority his "record should give pause." Unless the goal is to use any and every effort to vacate death sentences, a review of these cases in no way demonstrates Prof. Liu's claim that Judge Alito "has shown an unbroken pattern of excusing errors in capital proceedings and eroding norms of basic fairness."
What it may reveal is that he is unwilling to join in the national campaign by elites to water down or erode the administration of capital punishment. Consider, when the American public is asked about capital punishment, about 7 in 10 regularly support it. Strikingly although most Americans believe the death penalty is applied fairly, and about half say it is not imposed often enough.
The truth is that it is the critics of Judge Alito who are troubling. For it is they who cloak a far more radical and undemocratic agenda. They embrace a remarkably counter-culture and anti-capitalist worldview. But they use buzz words and smear attacks to overshadow the fact that their agenda is indefensible in the public square.
Rather than modifying or repackaging their vision for the American public they have instead sought refuge in the unelected judiciary. But such an approach is contrary to the principle of self-government and representative democracy.
Perhaps most fatally, such an approach further politicizes the judiciary and contributes to a confirmation process that has come to encompass intrigue, political strategy, active domination by special interest groups, and scrutiny beyond which many nominees find too great to bear. ----------
Horace Cooper is an assistant professor of law at George Mason University -------------------- Note -- The opinions expressed in this column are those of the author and do not necessarily reflect the opinions, views, and/or philosophy of GOPUSA.
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