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November 13, 2012

Justices spar over execution stay in capital case out of Texas

As reported this morning over at SCOTUSblog, in this morning's Supreme Court "orders list there is an interesting exchange of opinions on a stay of execution -- a dissent by 3 judges from the grant of a stay, and a response by 2."  This debate, which concern a stay granted back in October, appears in the last five pages at the end of this orders list

Justice Sotomayor's statement in support of the stay, which was joined by Justice Ginsburg, runs only two paragraphs.  Justice Scalia's dissent from the stay, which is joined by Justices Alito and Thomas, runs a full three pages and concludes with these sentences: "Haynes has already outlived the policeman whom he shot in the head by 14 years. I cannot join the Court’s further postponement of the State’s execution of its lawful judgment."

November 13, 2012 at 10:16 AM | Permalink


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Since the US Constitution on which the Justices rely (or rather their interpretation of it) has not stopped the widespread and recently increasing disuse and abolition of the death penalty across many States, it is about time Scalia and others accepted that the use of and acceptance of legal phrases like "no harm" and "no merit" to shield lower courts and prosecutors from accountability with regard to shoddy defense and dubious prosecutorial practice, is no longer acceptable. Courts have a duty to protect the accused from both, yet examination of trial transcripts reveals a consistent bias against the accused in some jurisdictions at least. That is a primary cause of these late claims, which finally emerge not from the claimants themselves, but from more proficient and expert defense teams who sometimes, thankfully, become involved in the later stages of post-trail appeals. If some Justices don't like the situation that now arises, they should hasten the full abolition of the death penalty to bring about consistency across the US to reduce the high stakes of life and death in such cases.

Posted by: peter | Nov 13, 2012 12:13:32 PM

peter --

I have to hand you this: You are the most consistent man on the board. Not once have I seen you fail to take the side of the murderer.

Posted by: Bill Otis | Nov 13, 2012 1:02:57 PM

Funny how bereft of law Sotomayor's statement is . . . .

Seems to me that those imposing a stay, as Sotomayor is, should be able to articulate why the stay of execution is warranted. This is particularly true where, as here, the condemned killer has had has full panoply of review procedures. But Sotomayor does not come close to showing why a stay is warranted.

As everyone knows, the rules against successive habeas petitions are there so the state does not have to even litigate habeas a second time. Thus, the Supreme Court has agreed that Rule 60(b) motions can be treated as successive habeas petitions. Justice Sotomayor doesn't bother to explain why this particular Rule 60(b) shouldn't be treated as a successive habeas petition even though that would be a condition precedent to the issuance of a stay. Additionally, the Sotomayor doesn't bother to explain whether, assuming arguendo that a Rule 60(b) would allow the opening of a habeas judgment, Haynes raised the Martinez claim in his original habeas petition and throughout the appeals from the denial of habeas--if he did not, then it would be unjust to allow him to raise it now. (And for all of those who think that's unfair, i.e., requiring a litigant to anticipate Martinez, that's the case generally, and such a rule has particular force given the federalism issues inherent in federal habeas petitions.)

Third, Sotomayor does not explain whether the capital prisoner filed his 60(b) motion in a timely fashion. Given the last-minute nature of the opinions, my guess is no. The date was set on June 28, 2012, and the execution date was in mid-October. That's clearly relevant when in determining whether a stay is appropriate. Yet, Sotomayor refuses to provide her analysis of this issue.

Fourth, the granting of a stay is an equitable remedy--where's the analysis of likelihood of success on the merits etc.?

Clearly, the victim's family and the state of Texas deserve more than some snide commentary from Sotomayor criticizing the dissent's view that this litigation has gone on too long? Sotomayor apparently thinks it worthwhile to parse the record to determine what was and what was not decided so as to take a (weak) shot at Scalia, yet she's unwilling to do the analysis that Supreme Court caselaw suggests is a necessary precondition to granting a stay. So, it appears that taking a swipe at a colleague is more important than forthrightly explaining to the victim's family why she is intervening here. There are few words to describe how contemptible she is.

Posted by: federalist | Nov 13, 2012 1:24:06 PM

Federalist, you write "There are few words to describe how contemptible Justice Sotomayor] is." Aren't the other five justices who voted for the stay equally "contemptible." Isn't every judge you disagree with "contemptible"; or a "hack"? As repeatedly pointed out by others, your hyperbolic ad hominem attacks are tiresome, detract far more from you than from those you attack, and seriously undermine the force of your arguments.

Posted by: onlooker | Nov 13, 2012 1:58:07 PM

Federalist, I disagree with your assessment. Sotomayor writes:

'In this case, a divided Fifth Circuit panel rejected Anthony
Haynes’ application for a certificate of appealability on the ground that this Court’s decision in Martinez v. Ryan, 566 U. S. ___ (2012), “does not apply to Texas capital habeas petitioners.” No. 12–70030, 2012 WL 4858204, *2 (Oct. 15, 2012). We recently granted certiorari to address precisely the question whether Martinez applies tohabeas cases arising from Texas courts. See Trevino v. Thaler, 568 U. S. ___ (2012)."

Your arguments notwithstanding, it seems to me eminently reasonable to stay the execution of a person who is raising the very same issue that the Supreme Court has just agreed to decide.

Posted by: anon1 | Nov 13, 2012 2:02:47 PM

Federalist, you call Sotomayor "contemptible." You've said as much and worse about Kagan. People might actually think about the merits of your arguments if you would stop these silly and misguided character assassinations.

Posted by: Dave from Texas | Nov 13, 2012 2:20:41 PM

anon1, parroting Sotomayor's statement really doesn't get the job done, as the wise Latina really doesn't get at the issue. The issue in Haynes' case is whether a Martinez issue will allow a capital defendant to open up a settled federal habeas judgment on a Rule 60(b) motion. One of the great things about being a Supreme Court Justice is that people treat either a deliberate fudging of the issue (or out and out stupidity) as gospel. Unfortunately, ipse dixit is ipse dixit, and precedent is what it is. Putting aside the simple power to issue a stay (which the Court has), Sotomayor does a poor job of explaining how this stay fits in with previous pronouncements of the Court about stays, federalism and AEDPA. You ascribe to Sotomayor's statement a talismanic power of correctness simply because she said so. As a matter of power, that's probably right, but my point has nothing to do with the power of the Court to stay the execution (a power which, by the way, I think should be withdrawn from federal courts). My point is about the legal process and the expectation that courts, you know, act in accordance with precedent and explain themselves by citation to precedent. Given the fact that there is a question in Haynes completely separate from the issue on which SCOTUS granted cert., i.e., whether a Rule 60(b) motion can open up a settled habeas judgment, Sotomayor might as well have said that the reason she thought the stay was proper is that the sky is blue. In other words, and I shouldn't have to explain this, pointing out the fact that Martinez' applicability to Texas criminal procedure is an issue in a pending case is true, but utterly besides the point.

Anon1, you, of course, fail to deal with this obvious problem. I don't know if the reason for that is that you are dazzled by the fact that Sotomayor's words came from on high or whatever, but the bottom line is that I raise strong points, and you are unable to deal with them. Perhaps the real answer is that the Court (or at least a majority of it) has decided, without saying so, that in death cases there is going to be a no-stones unturned approach, and that's going to trump things like settled judgments, the problems with last-minute appeals (as I indicated earlier, a Texas state judge set a date approximately 100 days before the execution--clearly enough time to get all of these issues settled) etc. If that's the case, fine, let them say so. They haven't, and there is very clear law on my side of the argument. Law which the wise Latina chose not to deal with.

As for the other whiners, who seem to think some sort of lese-majeste attaches to the office of Supreme Court Justice, the issue isn't character assassination---I have stated very clearly my reasoning, and as for the wise Latina shot, well, that came out of her own mouth. (I am still curious how being a wise Latina with the richness of her background somehow makes ignoring the fact that there is a settled judgment in favor of the State of Texas, or to be more accurate, the warden, better judging than a white male's.) Since I have stated my reasoning, this isn't character assassination, it's my personal opinion of the morality of this woman backed up with references to undisputed facts. Obviously, Sotomayor decided to do the work to go after Scalia's dissent--too bad she couldn't find the time to do the work to actually deal with the precedent and the record (i.e., checking to see if the original habeas petition and the appeals therefrom raised the issue successfully argued by Martinez). In other words, engaging in a pissing contest was more important than explaining to a victim's family why she granted a stay.

One more word about ad hominem--I explained this before, but I guess I have to do it again--calling someone names is not an ad hominem argument. Ad hominem argument is calling them a name and then arguing "therefore they are wrong." I don't do that.

Posted by: federalist | Nov 13, 2012 4:20:38 PM

And yeah, Dave, I've said worse about Kagan. Kagan subjected military members to second-class status at Harvard in order to make a point about gay rights, notwithstanding the fact that the military's DADT policy was dictated by Congress. I don't consider her fit for polite company, and it's funny how no one here can defend her, other than to call me a big meanie for daring to criticize her.

Posted by: federalist | Nov 13, 2012 4:31:10 PM

According to Merriam Webster, "ad hominem" (def. 1) "appealing to feelings or prejudices rather than intellect."

federalist, some on the defense bar might appreciate this, finds an out, since he is only partially doing this. whine whine. :)

Posted by: Joe | Nov 13, 2012 4:41:23 PM

Where's the military guy who wrote an glowing op-ed in support of Kagan ... oh well, such "whiners" count as much as the "victims" (actual quotes, not scare quotes -- they are all victims, whatever side they come on this issue, and they come on both) who disagree with f. on the death penalty.

Kagan, following the policy of the university as a representative had a duty to do so, did various things to make military personnel welcome, tempering Congress' questionable policy (one libertarians as well as liberals questioned). So, yes, we can defend her, since you asked. I'm sorry, you seem to be "whining" here.

Posted by: Joe | Nov 13, 2012 4:49:36 PM

Awww, isn't Joe a cutie pie? While I agree that going to a dictionary is often a good idea, it's plain that I am talking about ad hominem as a method of argumentation. And I am clearly not doing that. As for appealing to prejudice or feelings, perhaps, but so what? I think that the reasoning leading up to my characterization is where the argument is, and my conclusion is just my opinion.

Once again, you say very little that advances the ball. I guess it's a marginal improvement over your typical trite observations that masquerade (and not very well) as deep wisdom, but it's tiresome nonetheless.

Funny how none of you libs can take on my arguments. If I am so dumb, why am I kicking your collective asses. And if there are any former Sotomayor clerks who read this and want to take me on, go right ahead. Bear in mind that I have the scalp of a former Kennedy law clerk, i.e., Doug's former law prof guest blogger.

Posted by: federalist | Nov 13, 2012 4:57:45 PM

Well, congrats Joe, you found a liberal military guy. Big deal. The point is that it was wrong to subject military recruiters to second-class treatment when they had NOTHING to do with the policy. Of course, the military recruiters also were in a position where they had to sit and take it. That's simply wrong, and saying that she was a representative of the university isn't a defense. At the end of the day, she is responsible for giving them second-class treatment. She did that (you don't dispute that). That makes her unfit for polite company. Moreover, it shows a distinct lack of moral courage. That you would even try to defend such nasty treatment of men and women in uniform shows you to be a moral pygmy as well.

Posted by: federalist | Nov 13, 2012 5:04:28 PM

Federalist, here's an article printed in Wall Street Journal in 2010 that refutes your claims with respect to Kagan:

From The Wall Street Journal May 11, 2012
By ROBERT C. CLARK (Professor and former dean at Harvard Law School)

With the announcement of Elena Kagan as nominee for the open seat on the Supreme Court, comments both sound and foolish are sure to flood the media. In the prior category is the observation that Ms. Kagan is a brilliant legal scholar with a superb record of service in the federal government and as a law school dean. In the foolish category, we are already hearing a replay of an attack critics used against her when she was being considered for her current position as solicitor general. That attack goes something like this: During her time as dean of Harvard Law School (2003-2009), Ms. Kagan showed herself to be antimilitary—an extremist bent on harming the military's efforts to hire some of the best law school graduates in the country.
I write to rebut that argument, and believe that I am in a good position to do so. I served as dean of Harvard Law School from 1989 to 2003, and know the history of military recruiting there. I taught Ms. Kagan in the mid-1980s—she was one of the best students I've had—served as dean when we hired her as a tenured professor, and strongly supported her appointment as my successor. As dean, Ms. Kagan basically followed a strategy toward military recruiting that was already in place. Here, some background may be helpful: Since 1979, the law school has had a policy requiring all employers who wish to use the assistance of the School's Office of Career Services (OCS) to schedule interviews and recruit students to sign a statement that they do not discriminate on the basis of race, gender, sexual orientation, and so on. For years, the U.S. military, because of its "don't ask, don't tell" policy, was not able to sign such a statement and so did not use OCS. It did, however, regularly recruit on campus because it was invited to do so by an official student organization, the Harvard Law School Veterans Association.
The symbolic effect of this special treatment of military recruiters was important, but the practical effect on recruiting logistics was minimal. In 2002, however, the Air Force took a hard line with Harvard and argued that this pattern did not provide strictly equal access for military recruiters and thus violated the 1996 Solomon Amendment, which denies certain federal funds to an education institution that "prohibits or in effect prevent" military recruiting. It credibly threatened to bring an end to federal funding of all research at the university.
This penalty would not have hurt the law school, which has virtually no such funding. But it would have hurt other schools at Harvard, principally the medical school and the school of public health. It would have eliminated about 15% of the university's operating budget. After much deliberation with the president of Harvard and other university officials, we decided to make an exception for the military to the school's nondiscrimination policy. At the same time, I, along with many faculty and students, publicly stated our opposition to the military's policy, which we considered both unwise and unjust, even as we explicitly affirmed our profound gratitude to the military. Virtually all law schools affiliated with large universities did the same.
When Ms. Kagan became dean in July of 2003, she upheld this newer policy. Military recruiters used OCS services, but at the beginning of each interviewing season she wrote a public memorandum explaining the exception to the school's nondiscrimination policy, stating her objection to "don't ask, don't tell," and expressing her strong view that military service is a noble and socially valuable career path that should be encouraged and open to all of our graduates.
In November 2004, however, the Third Circuit Court of Appeals found that the Solomon Amendment infringed improperly on law schools' First Amendment freedoms. So Ms. Kagan returned the school to its pre-2002 practice of not allowing the military to use OCS, but allowing them to recruit via the student group. Yet this reversion only lasted a semester because the Department of Defense again threatened to cut off federal funding to all of Harvard, and because the U.S. Supreme Court reversed the Third Circuit's decision. Once again, military recruiters were allowed to use OCS, even as the dean and most of the faculty and student body voiced opposition to "don't ask, don't tell." Outside observers may disagree with the moral and policy judgments made by those at Harvard Law School. But it would be very wrong to portray Elena Kagan as hostile to the U.S. military. Quite the opposite is true.

Posted by: anon2 | Nov 13, 2012 5:18:32 PM

Federalist, methinks thou sufferest from repressed anger at Obama's reelection. The thought that he might get 2 more Supreme Court appointees like Sotomayor and Kagan perhaps causes you to blindly strike out at his appointees. Look at the bright side. In four more years, you'll get another chance.

Posted by: onlooker 14 | Nov 13, 2012 5:23:45 PM

anon2, I don't see how that article refutes anything I've written. Actually, it confirms it. Note what the article says:

"So Ms. Kagan returned the school to its pre-2002 practice of not allowing the military to use OCS, but allowing them to recruit via the student group."

That's exactly right. Let's not forget--it's easy to talk about "the military" etc., but what is going on is that individual men and women (i.e., the recruiters) were given second-class status by Kagan. In other words, Harvard treated recruiters from the various law firms that represented GTMO terrorists better than those military members. That was a studied insult to the recruiters and something which puts her outside of polite company. The individual recruiters had nothing to do with DADT, and the military was required to follow it, yet Kagan chose to shunt them off to the side.

She's responsible for that choice, and the person that nominated her is all the more reprehensible for having done so. Why is it that Dems always talk in terms of how much they respect the military, but then they pull crap like this. Me, if I were Dean, I would have told the GLBT community on campus to write their Congressmen etc., and I would have reminded them that the military recruiters were guests of Harvard and that the military was fighting people in Afghanistan who would burn homosexuals.

Posted by: federalist | Nov 13, 2012 6:26:33 PM

Federalist writes: "If I am so dumb, why am I kicking your collective asses[?]"

Wow, pretty high opinion of yourself. I guess if repeating the same attack lines over and over for years ("the stay was lawless!") counts as kicking the collective assess of others, then I guess you're right. But if Monty Python is correct, and "an argument is an intellectual process," then I'm afraid you're way behind.

Also, given that my preferred national candidate and party just kicked the collective, and individual, asses of your preferred national candidate and party, I'm not sure your statement about who's winning the argument is correct.

Posted by: Anon | Nov 13, 2012 7:02:19 PM

Awww, how cute, an Obama voter. How's that $16TT debt working out for all of us? What was once unpatriotic is now le dernier cri.

Instead of pointing to the election and saying scoreboard, how about dealing with the arguments on the stays. Oh, you cannot. Hence my ass-kicking comment. I thought I had seen it all, but pointing to an election to win a legal argument is a new one on me.

Posted by: federalist | Nov 13, 2012 7:35:23 PM

Heck Anon, how about this:

Statement of Sotomayor J respecting denial of motion to lift stay:

"The guy who appointed me won; therefore, it was correct for the Supreme Court to issue the stay."

Too easy.

Posted by: federalist | Nov 13, 2012 7:57:23 PM

The argument on the stay is, in your words, too easy. SCOTUS is considering a case w/the same substantive issue at issue in the petitioner's case. In order to determine whether the petitioner has a valid claim, the court should know whether the claim has substantive merit. I understand there may be procedural bars to this petitioner succeeding on the merits but it sure would be helpful to know if he would succeed on the merits before deciding his claim. Since such a determination can't benefit him after he's dead, and since killing him would prejudice him more than not killing him today would prejudice the govt, he gets the stay.

Posted by: Anon | Nov 13, 2012 8:19:27 PM

On the other hand, federalist, maybe you can find an unskewed poll to tell me I'm wrong.

Posted by: Anon | Nov 13, 2012 8:21:14 PM

Anon, you miss a very important point---once again, the warden has a judgment denying habeas relief. Sotomayor missed that obvious point, and so have you.

It's also painfully obvious that you haven't thought things through. "on the merits" refers to the underlying claim of IAC, which is two steps removed from the Rule 60(b) issue, not one step, as you assume. But once we're past that little flub, the prejudice analysis misses a lot--first of all, there is the state's right to enforce its judgment--that right is at its zenith once the habeas petition is denied, and the caselaw says that the defendant has to make a substantial showing in order to get a stay--at an absolute minimum, this should mean that he has a compelling case on the merits, i.e., the real merits, IAC and that the Rule 60(b) must be granted. Did he raise the Martinez issue in his pleadings? Did he raise it in his cert. petition? If not, he should be barred. Sotomayor didn't deal with any of this. What about the 100 days from the order setting the date to the execution itself? What about the time from which Martinez was decided to the execution date? If the condemned didn't move faster, should the state bear this risk? And what about the federal courts? Why should the state bear the risk that the federal courts couldn't act within 100 days. Remember, once the federal habeas judgment is in place, the state shouldn't have to even go through the litigation, absent extraordinary circumstances . . . . how is a change in federal habeas law anything close to an extraordinary circumstance?

None of this is answered. So I guess it isn't too easy, as you said. Sotomayor's weak response to Scalia is a slap in the face to the people of the State of Texas and the victim's family.

One last thing--let's assume that ultimately the Supreme Court would hold that, as a matter of law, the Rule 60(b) motion should have been granted and that this guy received IAC--is it really a horrible miscarriage to execute a plainly guilty criminal who had a full run of federal review? The state has gone through all the litigation it's supposed to, and the state set a date. That weighs very strongly in the balance--notwithstanding your criminal-focused analysis. It cannot be forgotten that the Supreme Court, unanimously, has stated that the victim's family has an interest in the timely enforcement of state criminal judgments--since the criminal put them in the position of being victims---why should they be forced to bear the risk of a federal oopsie on the Martinez issue and the inability of the federal courts to get this issue resolved in 100 days (or more, if you count the martinez decision as the starting point)? There's no good answer to that. And Sotomayor doesn't even try.

Posted by: federalist | Nov 13, 2012 9:20:12 PM

Federalist wrote: "let's assume that ultimately the Supreme Court would hold that, as a matter of law, the Rule 60(b) motion should have been granted and that this guy received IAC--is it really a horrible miscarriage to execute a plainly guilty criminal who had a full run of federal review?"

Yes. If his constitutional right to the effective assistance of counsel was violated, it would be, to say the least, a horrible miscarriage [of justice] to execute him.

Posted by: Anon | Nov 13, 2012 9:32:24 PM

Well, anon, the problem is that the law is otherwise--the state and the victim's family have a clear interest, and once the murderer has had the full panoply of review, the state's interest becomes paramount. Pointing to your belief about how things should be simply doesn't get it done. Sotomayor has her vote--but her reasoning (if one can call it that) is pathetically bereft.

Posted by: federalist | Nov 13, 2012 11:19:26 PM

Anon --

The problem is that the IAC business has become an infinite hall of mirrors. One lawyer claims that the lawyer before him was ineffective, who claims that the lawyer before HIM was ineffective, and off to the races.

Let's say the SCOTUS rules in the government's favor in Martinez. What is to stop Haynes from discharging his present lawyer and hiring a new one who will claim that the present one was ineffective? And once that happens on execution eve (which is when we all know it's going to happen), why shouldn't the courts grant a delay for an evidentiary hearing? I mean, we wouldn't want to let Haynes be executed while there's still a previously unresolved issue on the table, now would we?

How would you answer that? Yes, enough is enough, time to do the execution? Or would you say that, since we have to be sure, he gets his stay.

The problem, of course, is that, under that same theory, he gets his next stay AND HIS NEXT STAY AND HIS NEXT STAY.

Sorry. That's not law, and it's not being humane. It's just a shell game, as you must surely know.

Is Haynes clearly factually guilty? Yup. Was the murder atrocious? Yup. Has he had his appeal? Yup? Has it been 14 long years? Yup.

Fine. Then we're heard all we need to hear. Everything else is lawyer-centric enrapture. Let's quit fixating on lawyers and start fixating on just punishment.

Posted by: Bill Otis | Nov 14, 2012 2:13:08 PM

Federalist, "Onlooker" above asked you the following question "Aren't the other five justices who voted for the stay equally "contemptible." ? I'm curious to hear your response. If so, why pick on her. If you believe that are not equally contemptible, why not?

Posted by: Dave from Texas | Nov 14, 2012 4:43:51 PM

As I have stated earlier in this forum, these stays are completely out of hand and show an utter lack of responsibility on the part of the Court. What makes Sotomayor (and Ginsburg) contemptible is that Sotomayor obviously thought it more important to take a weak shot at the dissenters than to deal with the law governing stays. The victim's family deserves more than that.

Funny how I will answer the points of all, but no one seems to have very good legal arguments to rebut mine. Texas set a date 100 days before the execution, and we still had this last-minute circus. The victim's family, which, it bears repeating, did not ask to be the family members of a murder victim, got jerked around either by a lazy federal judiciary which couldn't deal with the issues on time or gamesmanship of the attorneys for the criminal (which, at least for now, is chargeable to the client). The answer of people like anon is first to parrot the words of the wise Latina, but given the patent indefensibility of her statement (N.B., her statement is indefensible because she seems to miss that the fact that there's a final habeas judgment in Haynes), anon then pivots to some criminal-centric idea that this guy having a do-over is somehow a categorical imperative. Perhaps that's what the law should be, but it's not what it is. No one disputes that.

And then I am the bad guy because I dare call Sotomayor contemptible for an intellectually dishonest opinion that is more concerned with responding to the dissent than justifying her decision to snatch justice from those who have patiently waited for it? I would think that anyone would be able to see the utter inappropriateness of her snide opinion. But apparently my assumptions are incorrect--there's a tribal mentality--federalist is attacking a fellow lib, so he's the problem, not the intellectual and moral bankruptcy of Sotomayor's opinion.

For a crowd that has an exquisite sense of its own moral superiority, you sure have a difficult time arguing things on moral terms. Note the defense of Kagan, done with such pride, like the cat that drags in a mouse for its owner--but it boils down to the idea that Kagan was just doing what her community wanted. A purer expression of moral relativism cannot be found. With respect to the stay--once the lame defense of Sotomayor was unceremoniously batted away, the idea is that the murderer's interests are above all others.

You libs are entitled to your own moral compasses. I just wish you'd be a little more intellectually honest about it. Military recruiters are there to be abused, so long as there's a greater good (i.e., gays in the military) and victims' families can be jerked around, so long as we're helping a murderer. Sotomayor, even as a Supreme Court Justice, has to resort to base dishonesty to justify her decision, when the real reason is that she just doesn't like the death penalty, the victims' families be damned. Like I said before, there are few words in the English language to accurately depict her breathtaking contemptibility.

Posted by: federalist | Nov 14, 2012 5:36:56 PM

Federalist said: "What makes Sotomayor (and Ginsburg) contemptible is that Sotomayor obviously thought it more important to take a weak shot at the dissenters than to deal with the law governing stays."

Ahh, I see. Sotomayor and Ginsburg are more contemptible than the other 3 Justices who granted the stay (which, by my math, would have to include either Kennedy, Roberts, or both) because they had the gall to explain what they were doing. Unlike the other four, who were silent.

Isn't it more contemptible to act and refuse to explain yourself than to act and at least attempt to explain why you're acting?

Posted by: Anon | Nov 14, 2012 6:52:28 PM

Anon, really? I have stated (quite clearly, I believe) that the issue is more than that, and I think you know it (else you have serious reading comprehension issues). Sotomayor's explanation is intellectually dishonest and more concerned with scoring debating points against Scalia than giving an adequate explanation of why she voted to grant the stay. It is painfully clear that there is a hole in her opinion (which I have explained numerous times on this thread), and I see that you don't have a coherent response to that point. (Of course, there is no response, and you have completely retreated from your parroting of the wise Latina's words and descend into a weak attempt at a gotcha.)

Sotomayor's opinion is a slap in the face to the victim's family. That makes it worse than the silence of the others (which I think is unacceptable as well). Sotomayor took the time to parse the record to figure out what the Fifth Circuit did in the original habeas petition, yet curiously didn't bother to determine some of the other record-based issue that should inform whether the stay should issue. So, my original conclusion stands unchallenged--the wise Latina with the richness of her experiences decided to get into a pissing contest with other members of the Court, rather than deal with the issues that should have informed her decision to yank the rug out from under the victim's family. If you can't see how inappropriate that is, then there is nothing I can say to you.

Posted by: federalist | Nov 14, 2012 7:55:41 PM

Anon --

I was wondering if you would answer my question whether Haynes should get a further stay if, after the end of this particular litigation, he files another suit claiming his present counsel was ineffective, and noting that it would be unfair and irretrievable if he were to be executed before that new claim was examined and decided.

In those circumstances, should he get another stay? Why not?

Posted by: Bill Otis | Nov 15, 2012 8:41:56 AM

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