Senator Feingold just explained his vote against Judge Alito's confirmation. I have appreciated the efforts of this senator to consent to nominees he very strongly disagrees with, but it seems this time he wasn't willing to do that. One of his primary arguments seemed to me to be really strange, though I think his line of questioning at the hearings should have led me to anticipate this. He said the Constitution guarantees that no one can be deprived of life without due process. Then he complained that Alito doesn't want to admit that someone who is actually innocent has a constitutional right not to be killed. Alito's response to this was quite clear and, I think, right. The Constitution guarantees that someone's life won't be taken without due process. It doesn't say that anyone has a right not to be killed if due process is followed, and that's true even if the person is actually innocent. If someone is convicted of a crime they didn't commit, provided that due process was maintained, no constitutional rights have been violated. People can be convicted while actually innocent, and the Constitution guarantees only due process, not the inevitability of actual innocence carrying the day. Feingold's position is completely unworkable. How can there be a constitutional right to something that is virtually impossible to guarantee in any significant way? The only thing I could think of is that Feingold didn't understand what Alito was saying, because he doesn't seem to me to be the type to misrepresent someone deliberately.
But what he said next made me question even that. He went on to pretend that Alito didn't admit to his recusal mistake upfront, a common meme among the Democratic senators during the hearings but one that is patently false given that Alito's first response was that it was a mistake, before he went on to speculate about the explanation for his mistake.