by Jonathan Singer, Sun Mar 26, 2006 at 01:37:31 PM EST
As someone who purports to care greatly about the precise meaning of the law, Supreme Court Justice Antonin Scalia has placed himself in a position in which he must recuse himself in an important case that will decide the scope of executive power. Michael Isikoff, who has continually showed his mettle as a diligent reporter, does some digging and pens the following story in the April 3 issue of Newsweek.
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."
This isn't the first time Scalia has commented on matters before the court: two years ago he recused himself from a Pledge of Allegiance case after making public comments about the matter. "This is clearly grounds for recusal," said Michael Ratner of the Center for Constitutional Rights, a human-rights group that has filed a brief in behalf of the Gitmo detainees. "I can't recall an instance where I've heard a judge speak so openly about a case that's in front of him--without hearing the arguments."Other experts said it was a closer call. Scalia didn't refer directly to this week's case, Hamdan v. Rumsfeld, though issues at stake hinge in part on whether the detainees deserve legal protections that make the military tribunals unfair. "As these things mount, a legitimate question could be asked about whether he is compromising the credibility of the court," said Stephen Gillers, a legal-ethics expert. 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 Court spokeswoman said Scalia has no comment. [emphasis added]
Scalia, who really should have recused himself in the case involving Dick Cheney's secret energy task force given his close relationship and hunting trip with the Vice President, has clearly put himself in a pickle with this speech, which as Isikoff noted was unpublicized. Perhaps the Associate Justice believed that it was all right to prejudge a case during a speech if that speech were not televised or reported on in the U.S. media.
The question of recusal, however, is not one of publicity. It does not matter whether or not Americans know Scalia's position going into the case, only that Scalia has already developed an opinion before hearing arguments before the Court. Simply put, a Justice cannot prejudge cases -- Chief Justice Roberts and Associate Justice Alito said as much during their confirmation hearings as a defense of their unwillingness to admit their true feelings on Roe v. Wade.
Isikoff writes that the recusal of Scalia "would create problems" in light of the fact that Roberts has already done so as well, but the problem would be much greater if Scalia did not do so. Certainly, a ruling from a Court devoid of both Roberts and Scalia might turn out differently than one in which both Justices were included, but this is not grounds enough for overriding each Justice's requirement of impartiality. Regardless of how this might affect the Court's ruling in the Hamdan case, Antonin Scalia must recuse himself for prejudging the case.