Alito Concurrence ‘Rejects ABA’s Nonsense,’ Commentator Says
A concurring opinion by Justice Samuel A. Alito Jr. on the ABA’s capital representation standards and the association’s membership has one conservative commentator doing the blog equivalent of a victory dance.
On Monday Alito wrote separately—and “curiously,” in the words of the National Law Journal—to emphasize that the 2003 standards should have no “special relevance” when courts determine whether defense counsel are ineffective for purposes of the Sixth Amendment.
“The views of the association’s members, not to mention the views of the members of the advisory committee that formulated the 2003 guidelines, do not necessarily reflect the views of the American bar as a whole,” Alito wrote. “I see no reason why the ABA guidelines should be given a privileged position in making that determination.”
Alito’s opinion got noticed by conservative court watcher Edward Whelan, president of the Ethics and Public Policy Center, the NLJ notes. Writing for the Bench Memos blog, Whelan says he’s pleased that Alito “rejects the ABA’s nonsense.”
“The American Bar Association’s pursuit of its ideological agenda is all the more obnoxious because the ABA purports to be ‘the national representative of the legal profession,’ ” Whelan writes.
Alito’s statement came in a concurrence to a per curiam opinion that reinstated a death sentence for Robert Van Hook, convicted of murdering a man he met at a bar catering to gay men. The Supreme Court opinion (PDF) said the Cincinnati-based 6th U.S. Circuit Court of Appeals erred when it judged Van Hook’s representation based on ABA standards enacted 18 years after his trial.
Hofstra law professor Eric Freedman, a member of the steering committee of the ABA’s Death Penalty Representation Project, told the NLJ that the entire court apparently did not agree with Alito. If the court had endorsed Alito’s comments, he said, it could have done so in the per curiam opinion and Alito would not have needed to write separately.
The guidelines are an “honest effort” to state how a reasonable attorney would handle capital cases, Freedman said.
Prior coverage:
ABAJournal.com: “Supreme Court Says ABA Counsel Guidelines Can’t Help Ohio Death Row Inmate”
