Thanks to Scott Taylor for sending this:

Here's an excerpt from this morning's confirmation hearing before the Senate Judiciary Committee.

Exchange is between Roberts and Sen. Leahy...

LEAHY: And usually, far more than the Congress or anybody else, it's been the media that's exposed when this has been overdone, when mistakes or violations are done. And I would hope that you would be committed to protecting just as much as possible access, rather than the other way around. Let me go to an issue we discussed yesterday -- or others did--the issue of capital punishment.

We've held in this committee a number of hearings that show some real flaws in the administration of capital punishment: you know, sleeping lawyers, drunk lawyers, lawyers who didn't bother even to investigate or didn't have the funds to do it.

More than 100 death- row inmates have been exonerated; some, though, who have spent years on death row under the most horrible conditions for a crime they never committed.

I think Senator Durbin mentioned a situation out in Illinois where a Republican governor had to, and did -- courageously I felt -- extend clemency to a whole lot of people who had been on death row.

Some say -- and I think you have even said this -- when they're exonerated, it shows the system works.

Well, let me tell you about the system in that case. One of the people is Anthony Porter: spent 16 years on death row. He was within two days of being executed.

The system didn't work on behalf of the government doing. A bunch of kids from Northwestern University, who had taken as an elective course a course on journalism, and the teacher said, Why don't you look into a couple of these? and these kids went out and did it.

The kids dug up the information that was there available to the police, available to the prosecutor, available to the defense. Nobody dug up.

They found it, and within two days of his execution, the state's attorney dropped the case. They got somebody else to confess.

You said two years ago -- and I remember being at that hearing -- you said that, on the startling number of innocent men sentenced to death who are later exonerated, you responded somehow showed the system worked in exonerating them.

I worry about that statement, I really do.

It bothered me. You know, I voted for you for the circuit court, and there was a split vote in our party. But that one really bothered me, that statement. I found it almost mechanical, and I'll tell you why.

When we have people say innocent people who have been freed after years on death row shows the system was working, it doesn't. I think Sandra Day O'Connor said two years ago, If statistics are any indication, the system may well be allowing some innocent defendants to be executed. If that's the case, the system is not working.

In Herrera, we've discussed that. The court grappled with it and didn't ultimately decide: Does the Constitution permit the execution of a person who is innocent?

And as principal deputy solicitor general, you co-authored the amicus brief for the U.S. in the Herrera case. You say the claim of actual innocence does not state a ground for federal habeas.

Actually, you said, quote, Does the Constitution require the prisoner have the right to seek judicial review of a claim of newly discovered evidence instead of being required to seek relief in the clemency process?

In our view, the Constitution does not guarantee the prisoner such a right.

So let me ask you this, without going to the facts of Herrera: Is it your current personal view the death row inmate who can prove his innocence has no constitutional right to do so before a court before he's executed?

ROBERTS: Well, Senator, this is the basis of the disagreement in Herrera.
Herrera is not a case about actual innocence. It's a question of whether you are entitled to bring a new claim.

LEAHY: Well, listen to my question. To the death row inmate who can prove he is innocent, do they have no constitutional right to do so in a court of law before they are executed?

ROBERTS: Well, prove his innocence, the issue arises before you get to the question of proof. And the question is: Do you allow someone who has raised several claims over the years to suddenly say at the last minute that somebody who just died was the person who committed the murder?

And does that mean you start the trial all over again simply on the basis of that last-minute claim or do you require more of a showing at that stage? That's what Herrera was about.

Now I don't think, of course, that anybody who is innocent should suffer as a result of a false conviction. If they have been falsely convicted and they are innocent, they shouldn't be in prison, let alone executed. But the issue...

LEAHY: Does the Constitution permit the execution of an innocent person?

ROBERTS: I would think not. But the question is never: Do you allow the execution of an innocent person? The question is: Do you allow particular claimants to raise different claims, fourth or fifth or sixth time to say at the last minute that somebody who just died was actually the person who committed the murder and let's have a new trial?
Or do you take into account the proceedings that have already gone on?

LEAHY: I'm looking for broad principles here. You said -- let me read it again -- does the Constitution require that a prisoner have the right to seek judicial review of a claim of newly discovered evidence instead of being required to seek relief in the clemency process?

In our view, the Constitution does not guarantee the prisoner such a right.

Is that your view today?

ROBERTS: Well, that's what the court held in Herrera?

LEAHY: I know. Is that your view today?

ROBERTS: Well, I'm not in the position to comment on the correctness or incorrectness of particular court decisions. That's the court's precedent in Herrera. It agreed with the administration position, which was not that innocent people should be subject to imprisonment or execution.

LEAHY: That's a position you took. The Supreme Court's going to revisit this issue in House v. Bell. Because you stated a position on that, does that require you to recuse yourself in the House v. Bell?

ROBERTS: No, because the position was stated in a brief filed on behalf of the administration. And we've talked yesterday about the established principle that lawyers do not subscribe as a personal matter to the views they present on behalf of clients.

LEAHY: Well, in this case, the client's the United States. I mean, you're stating the position, sort of the -- what do they call it? The 10th justice?

ROBERTS: Well, I was the deputy solicitor general on the brief. I didn't argue the case. The solicitor general was the counsel of record in the case. But the position presented in the brief as an advocate is not necessarily the position of every lawyer on the brief.

LEAHY: I think you were more than just a lawyer on the brief. You were one of the most sought after jobs, picked because of your position. I was very impressed when I talked with you about your use of Latin, for example, and French.

And I'm always impressed with somebody with that facility. There is a Latin phrase. And this is not a (inaudible). I'll translate it: (SPEAKING IN LATIN). He who acts through another acts for himself. And that's not the case in Herrera?

ROBERTS: He who acts for another acts for himself? Well, it's the client acting through the lawyer and it's the client who is acting for themselves...

LEAHY: You are the client in this case when you are -- the solicitor general is the client, in effect.

ROBERTS: No, Senator, I disagree with that. The solicitor general represents the interest of the United States and those positions represent that client's position. And in the Herrera case, again, it was the solicitor general who was responsible for the position that was advanced.

I'm not suggesting in any way that I disagree with it or agree with it.

I'm just saying that it is a basic principle in our system that lawyers represent clients and you do not ascribe the position of the client to the lawyer.

It's a position that goes back to John Adams and the Revolution.

LEAHY: Let me ask you this, then. Let me ask you something that couldn't be
ascribed to a justice of the Supreme Court. It's something that both the chairman and I have talked a lot about.

And that goes into some of the mechanics. And if you will let me take a moment, you understand these but, for the audience, the so- called rule of four: It takes only four justices to grant cert, but it takes five to grant a stay of execution.

Usually the courtesy is that, if you get four, a fifth one will sign on. That has not always been followed of late. Of course, we are dealing with the life or death issue. Senator Specter called it bizarre and unacceptable and sent in legislation to change it.

How do you feel if you were chief, if you had four other justices now voting for a stay of execution? Do you feel, as chief, you should do the courtesy of the rule of five and kick in the fifth one?

ROBERTS: It's an issue that I'm familiar with. I do know it arose. And I thought the common practice -- the current practice -- was that, if there are four votes to grant cert, that the court would grant the stay even though that does require the fifth vote, so that you don't have a situation..

LEAHY: It usually occurred -- yes, but that's because one more says, OK we've got four. We will put somebody else's name on here.


LEAHY: But that hasn't been followed all the time recently. It usually was. And that's why both Senator Specter and I have raised concern.

Do you feel the earlier practice of once you have four...


ROBERTS: I think that practice makes a lot of sense. I don't want to commit to pursue a particular practice in an area that I'll obviously have to look at in the future. But it obviously makes great sense that, if you have four to grant and that's the rule, that you will consider an issue if there are four to grant; you don't want to moot the case by not staying the sentence.

LEAHY: Right. And I appreciate that, because I know we find a lot of cases where they are perfectly willing to grant cert on monetary damages, but here it's kind of get it right. It doesn't make much difference with an appeal after the execution. You wrote a memo regarding -- in fact, in '83, to the White House lawyer -- you wrote a memo regarding proposals by then Chief Justice Warren Burger to reduce the Supreme Court's case load.

In that memo you volunteered the following: If the justices truly think they're overlooked, the cure lies close at hand. For example, giving coherence to Fourth Amendment jurisprudence by adopting the good faith standard and advocating the role of fourth or fifth guesser in death-penalty cases would eliminate about a half dozen argued cases from the court's docket each term.

Are you saying that judges are just too busy to pay attention to death cases?

ROBERTS: No, Senator.

LEAHY: What are you saying. How do you feel today? That was '83. How do you feel now, 22 years later?

ROBERTS: Well, in '83, of course, they were hearing about 150 case as year. They hear about half that now. Again, I don't want to prejudge questions or even be presumptuous to look down the road, but it seems to me that there's the capability there to hear more cases today, not fewer.

And I'm sure there are reasons for the reduction in the case load that I'm not familiar with that I might become more familiar with, but they handled twice as many cases 20 years ago than they do today, and I think the capability to address more issues is there in the court.

LEAHY: My time is up, but I think you'll find both the chairman and ranking
member of this committee believe they could handle more.

Thank you, Judge.

ROBERTS: Thank you, Senator.

SPECTER: Thank you, Senator Leahy.