A couple of people over the last few days have emailed me links to articles about whether Justice Scalia should recuse himself from today’s Hamdan case (a case involving whether detainess at Gitmo must be given civil trials in American courts) because of his recent remarks indicating how he would vote in the case. Newsweek reports the facts:
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.”
Here he essentially declared how he would vote in the case before ever hearing it, prompting many people to call on him to recuse himself from the case. Since Chief Justice Roberts is already recused because he ruled on the same case on the DC Court of Appeals, that would leave only 7 justices to rule in the case, including the 4 most liberal justices. My initial reaction to it may have been all wrong. In fact, here is what I wrote to Jay from Ocellated.com:
I find it more interesting that people make such a big deal out of things like this. Justices make speeches all the time and give their opinions on issues that will come before the court. It’s not a big deal. And the article’s “expert” on legal ethics, Gillers, is the same guy who thought it was a huge breach of ethics for Scalia to teach a class on con law for continuing education a couple months ago.
But talking with Dan Ray a little while ago, he reminded me of something I had forgotten completely – Scalia had recused himself for doing the very same thing in the Newdow pledge of allegiance case a couple years ago. Scalia had given a speech a few months before the case came before the court in which he declared that the notion of removing the pledge of allegiance from classrooms was ludicrous and dangerous.
As a result, Newdow had formally requested that Scalia recuse himself, a virtually unprecedented move that upset the sense of decorum among the court’s justices and lawyers. Justices decide for themselves when to recuse and they rarely explain their reasons. There is no oversight on that authority. Legal analysts viewed it as an insult to Scalia that would backfire on Newdow, but Scalia shocked everyone by agreeing to recuse himself in the case.
Why, then, is he not doing so in this case, where the circumstances are virtually identical but the argument for recusal is, if anything, even stronger? Frankly, I suspect it’s because he is getting enormous pressure from the White House not to do so. They need his vote, for two reasons. First, because they know he will rule in their favor. Second, because with 8 justices there is the chance of a deadlock that would leave the appeals court ruling in place, a ruling that they like.
If he were to recuse himself, that would leave 7 justices including Breyer, Stevens, Ginsburg and Souter – as Dan called them, the 4 horsemen of the Republican apocalypse. That’s the last thing the White House wants and you can be sure that, despite the vaunted independence of the judiciary, they’ve pulled out all the stops behind the scenes to prevent Scalia from recusing himself. But his hypocrisy here is plain for all to see.