If Scalia Should Have to Recuse Himself, Then…

27 03 2006

… Justice Ginsberg would have to recuse herself from the next abortion case. 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.”

Notice the reaction from the left, who act like he will be trying innocent bystanders:

We may have to begin protesting judges if he doesn’t recuse himself. Or is he holding every single prisoner guilty of shooting at his son, and what proof does he have?

What a ridiculous question.

Bush has people rounded up and detained for years without charge, without counsel, and without family contact. He declares them enemy combatants. Now Scalia says none of them deserve a fair trial — is he justice in a kangaroo court? Why would he deprive them of their “day in court” and to know their charges?

We must not be at war with terrorists. We must have just gone into some foreign country and snatched a bunch of people from their jobs.

If we’re going to hold them as captured enemy combatants, then the full force of the Geneva Convention should hold. Why, you bushies ask? Self interest, that’s why. If our boys get caught, I want them to be held to the same Geneva Conventions standards.

Who does he think we are fighting? Does the word T-e-r-r-o-r-i-s-t mean anything to you?

But even Captain Ed notes:

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. Unfortunately, that leaves the Court with just seven votes, with two of its best minds now sidelined (Roberts already recused).

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.

Stop The ACLU links a liberal blog’s comments that, cautiously point to 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.

The nature of his speech and his answer proves that its intent was educational. And while I don’t think he will recuse himself, if he feels the need to do so, it would be most unfortunate. He already recused himself in a recent case involving the Pledge of Allegiance based on a speech he made so while the possibility remains for a recusal from Hamden, I do not think it will be necessary.

Others hoping for no recusal: Atlas Shrugs, JunkYardBlog, Sister Toldjah, Expose The Left, The Rolling Barrage, Amber

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