Scalia Speaks Out On Detainee Rights

Posted on March 26, 2006

In the upcoming issue of Newsweek the question is raised on whether Justice Scalia should recuse himself from the upcoming case of Hamdan v Rumsfeld over recent remarks he made during a speech.

The Supreme Court this week will hear arguments in a big case: whether to allow the Bush administration to try Guantánamo detainees in special military tribunals with limited rights for the accused. But Justice Antonin Scalia has already spoken his mind about some of the issues in the matter. During an unpublicized March 8 talk at the University of Freiburg in Switzerland, Scalia dismissed the idea that the detainees have rights under the U.S. Constitution or international conventions, adding he was “astounded” at the “hypocritical” reaction in Europe to Gitmo. “War is war, and it has never been the case that when you captured a combatant you have to give them a jury trial in your civil courts,” he says on a tape of the talk reviewed by NEWSWEEK. “Give me a break.” Challenged by one audience member about whether the Gitmo detainees don’t have protections under the Geneva or human-rights conventions, Scalia shot back: “If he was captured by my army on a battlefield, that is where he belongs. I had a son on that battlefield and they were shooting at my son and I’m not about to give this man who was captured in a war a full jury trial. I mean it’s crazy.” Scalia was apparently referring to his son Matthew, who served with the U.S. Army in Iraq. Scalia did say, though, that he was concerned “there may be no end to this war.”

The comments caused quite an uproar, especially on the left, with many stating the case for recusal.

Even Captain Ed notes:

Supreme Court recusals are rare, but Hamdan already has one: Chief Justice John Roberts recused himself from the case as it appeals his own ruling from his prior engagement in the appellate court. Scalia also has had to recuse himself once before, on the case that reviewed the Pledge of Allegiance for constitutionality, thanks to off-the-cuff remarks he made while the court awaited that appeal. Since the Supreme Court is the last stop in American justice, no rules exist for recusals, but Scalia’s remarks sound like a textbook case for it if reported accurately. (Newsweek has a link to the video, but it’s over 280 MB.) Unfortunately, that leaves the Court with just seven votes, with two of its best minds now sidelined.

Scalia is, without a doubt, one of the more brilliant legal minds on the bench at any level. However, when it comes to decorum and judicial temperament, it seems that Scalia has some room for improvement.

However, in the comment section of another leftwing blog, which I applaud for their cautious judgement on this, someone links to Code of Conduct For U.S. Judges.

(6) A judge should avoid public comment on the merits of a pending or impending action, requiring similar restraint by court personnel subject to the judge’s direction and control. This proscription does not extend to public statements made in the course of the judge’s official duties, to the explanation of court procedures, or to a scholarly presentation made for purposes of legal education.

I believe that is clear that Justice Scalia’s remarks were acedemic in nature, and were certainly for the purposes of legal education. I don’t think that he will recuse himself, as it would affect the outcome of the case. And as Matthew J. Franck points out at NRO’s Bench Memos in reference to a Washington Post article, “Whatever issues come to dominate the oral argument on Tuesday, the first question for the Court is, can we entertain this case at all? It’s also the last question, because the answer is no.”

The parties can file a petition requesting recusal, and with organizations like the ACLU heavily involved, they will no doubt pull all the strings to tilt this in their favor that is at their disposal. However, the recusal is basically up to the judge, and I doubt that Justice Scalia will recuse himself from this. However, he did so recently in the Pledge of Allegiance case based on a speech he had made, so it is still a possibility. If he does so, I think it would be unfortunate.

A Scalia recusal (it’s entirely up to him) would create problems; Chief Justice John Roberts has already done so in Hamdan because he ruled on it as an appellate judge. A Supreme Courtspokeswoman said Scalia has no comment.Source

Ed Whelan at NRO’s Bench Memos says it best.

Many folks were surprised that Scalia believed himself obligated to recuse in Newdow. The mere fact that a justice has made public comments that would or might have some bearing on a case that comes before the Court has never been regarded as requiring recusal. What distinguished Scalia’s comments regarding the Pledge of Allegiance — and what I strongly believe led to his decision to recuse — is that Scalia commented directly on the lower-court ruling that later came before the Court. By contrast, the comments that Scalia made in Switzerland that would or might have some bearing on Hamdan were not (from Lederman’s account) directed at the ruling below in Hamdan.

One can quarrel whether this formalist line is sensible. But anyone who thinks it isn’t would either end up concluding that Supreme Court justices for decades have been failing to recuse in lots of cases where they should or, far more plausibly, that Scalia should not have recused himself in Newdow.

Others: Expose The Left
Say Anything
Mudville Gazette

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One Response to “Scalia Speaks Out On Detainee Rights”

kerwin_brown on March 26th, 2006 10:10 pm

I think someone is being foolish. We knew that Ruth Bader Ginsburg was pro choice before she sat on the bench and I have not seen her recuse herself from one case because of it yet. The question is do admit the truth that the high Justices are biased or do we continue to pretend they are not while referring to them as liberal, moderate, and conservative. If we admit the truth then it is only for political reasons that the left wants Justice Antonin Scalia to recuse himself while claiming that they want the federal courts to be independent from politics. They obviously speak out of both sides of their face.