03/07/2009 05:12 am ET | Updated May 25, 2011

Obama Administration and DNA

Will the Obama Administration stick with the Bush Administration's opposition to DNA testing that could set a man free?

It probably surprises almost no one that the Bush Administration's solicitor general, Gregory G. Garre, filed a brief with the U.S. Supreme Court in opposition to granting access to DNA testing to a man who was convicted of a rape that he insists he did not commit.

But will the Obama Administration's solicitor general-designate, Elena Kagan, stick with that position?

We shall soon see.

The Supreme Court will take up the issue on March 2 in an Alaska case known as District Attorney's Office v. William G. Osborne in which the U.S. Court of Appeals for the Ninth Circuit held that the Due Process Clause of the Fourteenth Amendment guarantees access to physical evidence relevant to a claim of actual innocence.

The State of Alaska, which is one of only six states that do not guarantee access to DNA testing by law, appealed the Ninth Circuit decision, and the Supreme Court accepted the case in November.

The timing could hardly have been worse for those who find it unconscionable that anyone, even Bush's solicitor general, would oppose post-conviction DNA testing that could free an innocent person.

The Bush Administration was gasping its last, but Garre seized the opportunity to perpetuate so-called conservative values -- by opposing access to evidence that Alaska concedes could prove the defendant's innocence.

Kagan, when she arrives, no doubt will face strong opposition to changing the position from Bush holdovers. She no doubt will be mindful, of course, that Obama was swept into office precisely because Americans were fed up with the hardcore zealots who ruled the roost for the last eight years.

She must act post haste to make it clear that the policy of the federal government is to correct injustices - -not to perpetuate them.

She should amend the brief to assert the most fundamental of American values -- freedom and justice for all.