While Supreme Court nominee Sonia Sotomayor fielded questions from the Senate Judiciary Committee for the second day today, court watchers considered the significance of her answer to a question on DNA testing from Illinois Senator Dick Durbin.
Durbin asked Sotomayor about the recent case of District Attorney’s Office v. Osborne (in which the Innocence Project represented Alaska prisoner William Osborne, who is seeking DNA testing that could prove his innocence).
Here’s the exchange:
DURBIN: And this is a recent case before the Supreme Court I'd like to make reference to, D.A.'s Office v. Osborne, involving DNA. It turns out there are only three states in the United States that don't provide state legislative access to DNA evidence that might be — might exonerate someone who is in prison.
I am told that, since 1989, 240 post-conviction DNA exonerations have taken place across this country, 17 involving inmates on death row. Now, the Supreme Court in the Osborne case was asked, what about those three states? Is there a federal right to access to DNA evidence for someone currently incarcerated who questions whether or not they were properly charged and convicted? And the court said, no, there was no federal right, but it was a 5-4 case. So, though I don't quarrel with your premise that it's our responsibility on this side of the table to look at the death penalty, the fact is, in this recent case, this Osborne case, there was a clear opportunity for the Supreme Court right across the street to say, "We think this gets to an issue of due process as to whether someone sitting on death row in Alaska, Massachusetts or Oklahoma, where their state law gives them no access, under the law, to DNA evidence."
So I ask you, either from the issue of DNA or from other perspectives, isn't it clear that the Supreme Court does have some authority in the due process realm to make decisions relating to the arbitrariness of the death penalty?
SOTOMAYOR: The court is not a legislative body. It is a reviewing body of whether a particular act by a state in a particular case is constitutional or not. In a particular situation, the Court may conclude that the state has acted unconstitutionally and invalidate the act, but it's difficult to answer a question about the role of the Court outside of the functions of the Court which is we don't make broad policies. We decide questions based on cases and the principles implicated by that particular case before you.
One blogger wrote at DailyKos
that while Sotomayor’s reluctance to criticize a recent court decision is understandable, she may have missed an opportunity to “defer to wisdom than caution when the two part ways.”