Stevens said DNA evidence has shown "that a substantial number of death sentences have been imposed erroneously."

"It indicates that there must be serious flaws in our administration of criminal justice," he said.

The article also addresses nominee John Roberts' 1983 memo to the Reagan Justus Department.

In a February 1983 memo while serving in Ronald Reagan's White House, Roberts suggested that the high court could cut its caseload by "abdicating the role of fourth or fifth guesser in death penalty cases."

Justice O'Connor was the swing vote on so many death penalty cases that Roberts' position is, by definition, highly important. But, I don't take this particular memo to mean that, as a Justice, he would seek to limit jurisdiction over death penalty cases. Government lawyers sometimes have to take positions that they personally do not belive in. On the other hand, they sometimes use their position as a platform to promote personal agendas, like they do today. I expect questions from the Senate Judiciary Committee, however, on whether Roberts will fall into the right wing faction that is, in fact, hands off on the death penalty.

And I still do not understand how "actual innocence" is not a constitutional claim under the due process clauses of the Fifth and Fourteenth Amendments. "So, Judge Roberts, is it permissible to execute the actually innocent?"