Eminent Domain

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.