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Monday, March 27, 2006 

Spotlight on Justice Scalia

All eyes seem to be on Justice Antonin Scalia this week. Comments that the lord of all things textual made in a recent speech in Switzerland have hit the news this week. Some people are calling for him to recuse himself from the case. There was also this incident outside of the Cathedral of the Holy Cross yesterday. A Boston Herald reporter asked Scalia if he fends off a lot of criticism for publicly celebrating his Catholic beliefs. Scalia's response...
"You know what I say to those people?" Scalia, 70, replied, making an obscene gesture under his chin.


"That's Sicilian," the Italian jurist said, interpreting for the "Sopranos" challenged. "It's none of their business," continued Scalia, who was the keynote speaker at yesterday's Catholic Lawyers' Guild luncheon. "This is my spiritual life. I shall lead it the way I like."
Well, that settles that.

The recusal issue is probably the more important though. During the speech in question, Justice Scalia expressed shock at the idea that detainees captured on the battlefield should receive a trial in civil courts. He called it a "crazy idea." A questioner asked about a hypothetical Guantanamo detainee. Justice Scalia responded, "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 am not about to give this man who was captured in a war a full jury trial. I mean it's crazy."

What's the problem? Tomorrow, the Supreme Court hears oral argument in Hamdan v Rumsfeld, a case about a Gitmo detainee captured in Afghanistan. That case will address the following issues: Can a detainee held at Gitmo be tried for a violation of the laws of war in a military tribunal instead of a civil court, and do the Geneva Conventions protect Gitmo detainees. Some are saying that Scalia's statements after his Switzerland speech are enough to force him to recuse himself from the case.

Personally, I think recusal isn't needed here. I think the confirmation hearings are fresh in people's minds and there is some carry over from them. People are getting things confused (or deliberately confusing things). Roberts and Alito would not give any views about upcoming cases or issues that could be before the Court in the near future. They did talk at length about their past statements and opinions though. Established thoughts are fair game to talk about and discuss. It is only when a judge starts to break new ground, deciding the merits of a case before hearing it, that there is a problem. I think that Justice Scalia's views shouldn't be surprising or a cause for recusal. Take a look at his dissent in Rasul v Bush...
The consequence of this holding, as applied to aliens outside the country, is breathtaking. It permits an alien captured in a foreign theater of active combat to bring a petition against the secretary of defense. ... Each detainee (at Guantanamo) undoubtedly has complaints - real or contrived - about those terms and circumstances. ...From this point forward, federal courts will entertain petitions from these prisoners, and others like them around the world, challenging actions and events far away, and forcing the courts to oversee one aspect of the executive's conduct of a foreign war.
There is also this from the Hamdi case...
[The reasoning in this opinion] appl[ies] only to citizens, accused of being enemy combatants, who are detained within the territorial jurisdiction of a federal court. This is not likely to be a numerous group; currently we know of only two, Hamdi and Jose Padilla. Where the citizen is captured outside and held outside the United States, the constitutional requirements may be different.
Those are his published views on the matter. We already know that he thinks this expansive view of civil court rights for non-citizens is shocking. He's said it before while on the Court. Repeating them is no cause for recusal, especially since he was asked a hypothetical question. Scalia wouldn't be foolish enough to answer a direct question about the Hamdan case.

The real reason that people are pushing for recusal is not because they take judicial ethics so seriously. They just want Scalia off the case. The Chief Justice is already off because he participated in the case while he was a judge on the DC Circuit. That means we only have eight Justices hearing the case. Removing Scalia would knock another vote away. The majority would only need four votes then. I'll give you two guesses where those four votes will probably come from (although I think the votes of both Kennedy and Breyer are in play here). The recusal crowd is more concerned about seeing the Bush Administration lose this case than they are about any real ethical issue.

EDIT: The chuch story reminded me of one of my favorite political pictures. Here's Vice President Nelson Rockefeller showing a few hippies what he thinks of them...God, I love politics.

My unlettered opinion is that they don't belong in civil court. It's a war, even though congress, nor the Pres. had the balls to ask for a declaration of such. They should be tried by Military tribunal, in a timely fashion. Bush could have avoided a lot of his problems by asking for a Declaration of War. It would have given him more power, and a lot less partisan sniping would be going on. He made his bed, now we have to sleep in it.

The whole declaration of war/use of force thing is a major problem. I think that we (as a country) have some gut reaction to the term "declaration of war", and that's why we never use them anymore. "Use of force" just sounds a little more acceptable, and it doesn't bring back images of long, brutal conflicts.

As a legal matter, we need to clear up what difference, if any, those two legislative acts have. Until we have a consensus on that, the ambiguity of the issue will keep it in the courts.

As far as the case itself, I did say that I think Kennedy and Breyer are both in play, as far as their votes go. It's a possibility, but it's also a possibility that I'm going to eat my Land Use casebook. I'm predicting 5-3, government loses.

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  • "There is only one basic human right, the right to do as you damn well please. And with it comes the only basic human duty, the duty to take the consequences." P.J. O'Rourke
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