The justice system is a human system, and so it is inevitable that the justice system fails. The justice system punishes innocent people.

With respect to the death penalty, the execution of innocents may be very rare. However, it is inevitable. So we must understand that if we are to support the death penalty we must accept that innocent people will die as a result, even if only very rarely.

For me to allow the state to proceed with an imperfect system which creates permanent results, I would need to have compelling evidence that the cost was worth the reward in terms of the innocent lives saved. No such evidence exists. In fact there are substantive arguments that the death penalty contributes to the rate of violent crime rather then deterring it. It isn't clear that the death penalty works, and so how can you proceed...

One would hope you would proceed with extreme caution, but the attitude expressed by Alito that the Constitution only provides for reasonable defense and that substantive information about a capital case which was missed by that defense does not warrant retrial advocates a wanton attitude about such grave matters and is precisely likely to contribute to a situation in which innocent people are more likely to be executed.

This isn't acceptable. I'm growing less comfortable with Alito. But I have another problem.

The conservatives are not going to nominate a justice with an intelligent point of view on the death penalty. In light of that do I need to accept this and find other grounds upon which to consider his nomination (which is exactly what I advocated that abortion rights advocates do here)? Perhaps so.

Needless to say, on both counts, moderate Republican voters ought to really think about what they've purchased by re-electing Bush. I remain unconvinced that the impact that this election is having on the court is less important, long term, then the likely differences between a Republican and Democratic strategy on the war on terror going forward. I owe a hat tip for that observation to Rattle.