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Anti-DP Outfit Vigorously Denies Liu Is Anti-DP

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The Constitution Project, an anti-death-penalty organization, has organized a letter with 27 signers to supposedly refute the charge of Ninth Circuit nominee Goodwin Liu's anti-death-penalty leanings. The press release with a link to the letter is here.

If anyone doubts that the Constitution Project is anti-death-penalty, see this debate between their president, Virginia Sloan, and yours truly on the PBS NewsHour site.

The very fact that the Constitution Project is so keen on seeing Liu confirmed says much more than their letter or the signatures on it.

As with other attempts to refute the letters of CJLF and of 42 district attorneys, this letter demonstrates either an inability to read between the lines or, more likely, a willful blindness to what so clearly lies between the lines.

The letter states, as if it were significant, that in the Alito confirmation controversy Professor Liu did not "state that he is opposed to the use of capital punishment or that he would not uphold death sentences as required by law." Of course not. No one who has ambitions for appointment would state that explicitly in public. For anyone who has been involved in this debate, though, the anti-death-penalty position comes through loud and clear in the paper as a whole. On every point on which an argument in favor of the defendant could plausibly be made, Liu makes it. Out of a total of ten cases, he is only willing to concede one was correctly decided in favor of the state.  And this is from a sample of cases already affirmed by the Pennsylvania or Delaware Supreme Court, so the clearly erroneous judgments had already been culled.

We infer attitudes from what people say and do, not simply what they admit. The inference that Liu would continue and even extend the Ninth Circuit's practice of stretching every rule of law to its conceivable limit or even beyond to overturn death sentences is unmistakably clear from his paper to anyone who has been actively involved in this fight over the years.

In their usual faux-neutral style, the Constitution Project claims that "the signatories to the letter includ[e] both supporters and opponents of capital punishment," but I do not see on the letter a single person I recognize as having been active on our side of this fight.  (If anybody sees an actual death penalty supporter, please let me know in the comments or by email.)

I do see on the letter Joseph Grodin, formerly of the California Supreme Court, falsely listed as "retired." He didn't retire; he was booted off by the people, precisely because of his participation in that court's blockade of the enforcement of a law its members disagreed with.

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The most disappointing (and frankly dishonest) thing with the Constitution Project is their air of fake neutrality. They take careful note that Project A or Panel B has a membership that includes people not generally opposed to capital punishment. What they omit to mention is that the useful idiots they draft onto these things, while not in haec verba opposed to the death penalty, almost always have so many reservations about it that, as a practical matter, it could never be imposed.

And that, of course, is the abolitionist goal. Indeed, in an important way, de facto abolition is better for them than de jure abolition. The latter would sooner of later require public acceptance of their position -- an acceptance that years of polling have shown they don't have and won't get.

Better to achieve de facto abolition, or, to be more crass about it, under-the-table abolition. The death penalty remains the law, but -- on account of "moratoriums," study commissions, antic and gimmick litigation, and so forth -- no one actually gets executed.

Thus the abolitionists achieve their objective without having to do the one thing they can't do: convince the electorate they're right. But it is THAT ONE THING that a democracy ought unequivocally to demand before giving abolitionists their way.

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