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Celestial Navigation and Ideology

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To expand a bit on this post, I will make an analogy to celestial navigation.

The operating principle of celestial navigation is that where the stars appear to be from your location tells you where your location is, provided you have good data on where the stars are and know how to work the problem. The simplest case is the North Star. If it appears to be 38 degrees above the horizon, you are at 38 degrees latitude. So, too, other people's statements about where they perceive third persons to be tells us where the perceiver is, if we know where the object of the statement really is.

When Samuel Alito was nominated to the Supreme Court, Goodwin Liu told us that Alito was out of the mainstream on the right side, based in substantial part on his analysis of Alito's decisions in capital cases. I did my own analysis of those cases and found Alito to be quite moderate. Of the ten cases, he ruled for the habeas petitioner in four. Of course I am self-aware enough to know that my own position on the death penalty and habeas corpus affects my perception as well, but 40% is an objective fact that conclusively negates the claim that Alito was a rubber stamp for the prosecution. One of the four cases, Bronshtein v. Horn, 404 F.3d 700 (CA3 2005), is regarded by many on the prosecution side to be a significant error in the habeas petitioner's favor.

Despite this record, Liu testified that Alito "is at the margin of the judicial spectrum, not the mainstream." That tells us where Liu is -- out of the mainstream in the other direction.

3 Comments

Kent, was Alito simply following 3d Circuit precedent in Brohnstein? Alito wasn't writing on a clean slate as a 3d Circuit judge.

From someone who knows more about this than I do:

"While he was working from circuit precedent, he wasn't bound to apply it to Pennsylvania's new, statutory post-conviction time bar; the case was a significant extension of prior law that really threw open the doors to a whole generation of defaulted claims in capital cases."

Thx. Of course, your point is completely well-taken. Alito is clearly even-handed on this issue.

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