Scalia and Hamdan: Should He Recuse?

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

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.


More like this

The Supreme Court today handed Bush a major defeat on the question of how to handle the detainees at Gitmo. In the case of Hamdan v Rumsfeld, the Court ruled 5-4 that the President did not have the authority to try those detainees by military tribunals. The ruling was 5-3, with Chief Justice…
STACLU has a post up accusing Justice Ginsburg of having a conflict of interest for ruling in a case involving the ACLU because she used to work as an attorney for them. Quoting another blogger, they ask the following question: Is it proper that Supreme Court Justice Ruth Bader Ginsberg - a former…
Supreme Court Justice Antonin Scalia has issued a memorandum in which he answers the request that he recuse himself from an upcoming case involving claims of executive privelege for Vice President Dick Cheney as it regards meetings he held in formulating the administration's energy policy, because…
One of the most fascinating aspects of the Hamdan case was that it was argued not by a prominent legal scholar or law professor, nor by a private defense attorney, but by a military lawyer from the JAG office, Lt. Cmdr. Charles Swift. Think about the position this put him in as an officer, taking a…

And I just asked your opinion on the whole issue. (Wasn't sure what I thought myself, not being as comfortable reasoning my way through legal matters).

I felt so... shot down. Sniff, sniff.

As you point out, Newdow asked Scalia to recuse himself. Do we know if there's been a similar request in Hamdan?

On the question of justices declaring opinions: clearly, the prejudice only applies to a unique set of facts. That's the case with Roberts here. But justices who rule on one controversy need not sidestep a similar case that covers the same general topic, i.e. various death penalty cases.

Since justices in theory (and, in the past, in practice) can be nominated from the ranks of politicians, it's inevitable that a justice will have taken a public position on some issue. And why is it taboo for the opinion to be made public, when an even more crippling prejudice can be kept private?


My understanding is that Hamdan has not requested that Scalia recuse himself. At least one outside amicus party has sent a letter asking Scalia to recuse himself, but that doesn't mean much; the letter isn't even technically an amicus brief, I believe--it's just a letter from some retired generals to the Court, or perhaps to Scalia's chambers in particular. I don't think that a request from Hamdan is necessary, however, nor do I think it would make any difference whatsoever.

Okay, I don't know very much at all about Gitmo, so maybe I'm missing something. But aren't these guys facing criminal charges? And if so, do they not deserve due process and all of the rights that come with it?

And if not, then aren't they prisoners of war and therefore subject to the Geneva Conventions?

Either way, don't they deserve rights of some kind?


There has been a request for recusal made publicly. The formal process that Newdow went through is practically unheard of. The normal manner in which recusals are made is that it becomes a public issue and the justice decides whether to recuse or not. It's entirely up to the justice, there is no oversight on it and no hard and fast rule as to when it should happen. The point I'm making is that the reason for recusal in this case is stronger than it was in the Newdow case, yet Scalia recused himself then and hasn't now.


The subject in Hamdan is narrower than the question of whether they deserve some rights or no rights. The subject is whether they must be given trials in civilian courts, with all of the attendant due process protections, or whether they can be given military tribunals, where those protections are much lower. So the court is only addressing one aspect of the larger question you bring up. I know little about the Geneva Conventions, so I'm not sure what it says about the subject of such trials, if anything. If anyone else knows, please give us some details here.

I finally figured out one of the things that bothers me about Republicans. They point their fingers at institutions or behaviors they don't like, then rush out and do everything in their power to become the very thing they decry. "The media is biased to liberals and it shouldn't be biased" is the premise. The result? Go out and deliberately bias it the other way instead of doing what they can to make it genuinely UNbiased.

"The judges are activists and rule on things they shouldn't!" The solution? Hire judges who will be just as activist the other way around instead of trying to define what they should and shouldn't rule on!

It's maddening.

I think Scalia should recuse himself, not merely because he's already publicly stated an opinion on the issue, but because the opinion he stated is so emotional and unhinged that he cannot be counted on to temper his emotions with any sort of reason.

Judges state opinions all the time, and in fact can be even more strongly biased in their own legal opinions, in which remarks of all calibers are found. If Scalia recuses himself, the case could find 5-3 against Rumsfeld, and overturn the lower court. Or it could find 4-4 and deadlock, or 3-5 in favor of the lower court, both leaving the lower court ruling in force. Thus there is obvious pressure, even without the White House doing anything, for Scalia's ideology to be upheld. Those people in Gitmo? They've already been tried, and dangnabbit, they sure aren't going to get those heister lawyers to wheedle them out o' there! Thus it's important for him to stay on the bench and vote "originally" as per the constitution, which fortunately doesn't say anything about how our laws apply to "foreign citizens", just our own. And in Scalia's (and the administration's) views, "terrorists", even American citizens, are not Americans, but "military combatants" and do not deserve civil "allowances" and "escape routes".

By Jaime Headden (not verified) on 29 Mar 2006 #permalink