Military Brass to Brassy Belter: Recuse Thyself

Tim Cavanaugh | March 29, 2006

Supreme Court Justice Antonin Scalia, whose Ethel Mermanesque rendition of "People Will Say We're In Love" has been known to make all of official Washington want to take a shower, is being urged to hit the showers himself after belting out some incautious comments in Europe:

On the eve of oral argument in a key Supreme Court case on the rights of alleged terrorists, a group of retired U.S. generals and admirals has asked Justice Antonin Scalia to recuse himself, arguing that his recent public comments on the subject make it impossible for him to appear impartial.

In a letter delivered to the court late yesterday, a lawyer for the retired officers cited news reports of Scalia's March 8 remarks to an audience at the University of Freiburg in Switzerland. Scalia reportedly said it was "crazy" to suggest that combatants captured fighting the United States should receive a "full jury trial," and dismissed suggestions that the Geneva Conventions might apply to detainees at Guantanamo Bay, Cuba.

Scalia's remarks "give rise to the unfortunate appearance that, even before briefing was complete, he had already made up his mind" about issues in the case, the lawyer, David H. Remes, wrote. Noting that Scalia reportedly had discussed the rights of accused terrorists in the context of his son Matthew's recent tour as an Army officer in Iraq, Remes wrote that this creates an appearance of "personal bias arising from his son's military service."

Whole story.

The retirees' request caps a controversy over whether Scalia, like John Roberts, should recuse himself in the Hamdan case. Scalia sat for the oral arguments yesterday and does not appear to be taking a powder in the case.

In a related story, "Nino" gives the fig to the Boston Herald, which he says misinterpreted one of his Italian hand gestures.

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|3.29.06 @ 4:20PM|#

Meh. If anything, it gives the opposing council a fair warning on how to tailor their argument against Scalia's preconceptions.

|3.29.06 @ 4:31PM|#

If anything, it gives the opposing council a fair warning on how to tailor their argument against Scalia's preconceptions.

How? By changing the argument to "hey you know what, on second thought, endless detentions and military trials are fine, forget we said anything"?

|3.29.06 @ 4:39PM|#

By detaining the accused it begs the questions of whether the person in captivity is actually a terrorist- "we arrested him, therefore he's a terrorist." I don't think criminals should have more rights than innocent people, but that's what the trial is for- to determine who's who.

|3.29.06 @ 4:44PM|#

CNN said:
especially when made by an 'Italian jurist.' (I am, by the way, an American jurist.)," [Scalia] wrote, ...
The Herald had referred to him as an "Italian-American jurist."

http://news.bostonherald.com/localRegional/view.bg?articleid=132311
"That's Sicilian," the Italian jurist said, interpreting for the "Sopranos" challenged.

The Clinton News Network is always good for a feeble laugh.

|3.29.06 @ 4:50PM|#

The Clinton News Network is always good for a feeble laugh.

Comments like "Clinton News Network" aren't even good for that much.

|3.29.06 @ 4:51PM|#

According to Professor Volokh, the NEXIS version does say "Italian-American" (see here: http://www.volokh.com/archives/archive_2006_03_26-2006_04_01.shtml#1143659146)

Losers who use tired jokes like "Clinton News Network" are always good for a feeble laugh.

|3.29.06 @ 5:03PM|#

I wonder about people who go crying about statements like this. Do you really think that justices don't think about these things in advance and even, gasp, have predispositions? Do you want a blank slate making constitutional interpretations? If so, why not just have the lawyers interpret the constitution and be done with it?

I'm with bubba here.

|3.29.06 @ 5:10PM|#

Jason- Judges have predipositions, of course. But when one makes statements that indicate that not only has he decided a case before he's heard it, but that there is no room for discussion, it's a problem.
The part about the lawyers making decisions doesn't follow from anything else you said, so I'll leave it alone.

Sure, justices do (and should) think about issues like this in their everyday lives. However, the vehemence with which he dismissed the interests of the claimants ("crazy") and the fact that he deliberately brought up his son's service in Iraq as a reason why he should feel this strongly certainly gives the appearance of bias. Seems to me he really ought to recuse himself in this situation.

|3.29.06 @ 5:13PM|#

Jeez, I guess they'll just have to try to impeach him if he keeps this kind of stuff up.

I wonder if Justice Ginsburg has ever addressed subjects like abortion or gay rights in public, and would she recuse herself if a case came before the court where it could be perceived she had a closed mind on the subject?

Tim Cavanaugh|3.29.06 @ 5:16PM|#

From the Nexis version:

"You know what I say to those people?" Scalia, 70, replied, making an obscene gesture under his chin when asked by a Herald reporter if he fends off a lot of flak for publicly celebrating his conservative Roman Catholic beliefs.

"That's Sicilian," the Italian-American 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."

That's official, but it's weird that the web version (which says it was updated today) reads differently.

|3.29.06 @ 5:17PM|#

Some here seem to be conflating enemy combatants for detained terrorists - as least when it comes to Scalia's statement:

combatants captured fighting the United States

IMHO & I could be wrong, but I don't think one can imply this also extends to terrorists captured on American soil.

|3.29.06 @ 5:18PM|#

I'm pretty sure Justice Ginsburg has never given a public speech where she referred to anti-abortion ideas as "crazy;" nor has she attempted to explain that view by declaring that she was particularly incensed by the issue because her daughter had had an abortion.

|3.29.06 @ 5:23PM|#

My fault - I should RTFA - his statement does involve the case at hand. He should probably recuse himself.

Side note: What happens to a SC Justice that should recuse themselves but doesn't?

#6:

The part about lawyers making the interpretation arises from the, to me, silly expressions of shock when a judge lets us know his thinking on a subject in advance. There is a fantasy that judges come into each case as blank canvases, with the implication being that the only paint that will ever wind up on the canvas is what the lawyers spew during the hearing.

I don't know that Scalia said anything out of line at all. Some arguments are completely unconvincing to some people. Scalia goes on to comment that the problem lies in the determination of who is a combatant and how long they are to be detained in this kind of war, by the way.

I'm reminded of when I was in the jury pool for a trafficking case. The judge asked if I, as a libertarian, could serve as a fact finder and consider the full range of punishments. I suggested that I had a predisposition to treating a transaction between consenting adults as more similar to jay walking than capital murder, but I didn't see how that was any worse that someone who felt the opposite. I felt that with my predispositions I was qualified to sit on a jury and I feel that Scalia should be able to sit here.

If you weed out everyone who has formed an opinion, you are left with idiots (who don't think) and liars (who act like they don't think).

|3.29.06 @ 5:24PM|#

Douglas Fletcher-If any of the jurists you mentioned had referred to people on either side of the abortion or gay rights debate as crazy, there would be a problem. Also, there is a difference between talking about general principles and making statements that are as specific as Scalia's.

|3.29.06 @ 5:26PM|#

Questo giornalista e' una testa di cazzo!

|3.29.06 @ 5:27PM|#

Why is an unspoken predisposition not grounds for recusal if a spoken one is?

You are telling me that Souter is neutral here?

Jason-I see where you're coming from, and don't entirely disagree. For me, the troubling part of this is the specificity of the comments and the vitriol. To use your jury example, if you had said something like "Well, of course I'll put the guy in jail. He got arrested didn't he?" the judge would have been right to send you on your way. The same would have been true if you stated that there was no way you would consider convicting the guy. Predispositions are one thing; prejudgements are another.

|3.29.06 @ 5:30PM|#

I guess Scalia doesn't think it is likely that his son will ever be captured during his combat career. Otherwise, he would be more concerned with how the "good guys" treat POWs.

|3.29.06 @ 5:31PM|#

BTW, Jason, do you have a link to the latter comments you mentioned?

|3.29.06 @ 5:34PM|#

Side note: What happens to a SC Justice that should recuse themselves but doesn't?

sometimes it means that one or more of the swing justices swings away so that court integrity issues are not as bad. I imagine Scalia made the statement here because he knew his side would lose.

|3.29.06 @ 5:35PM|#

I heard the comments on NPR last night on the way home from work. I'll dig if I have time.

He was bothered not by lack of due process but by indeterminacy of duration. It is the same thing I worry about, frankly.

|3.29.06 @ 5:39PM|#

Of course this is all academic. The only remedy is impeachment. As a result, in a sense, there is little problem with what Scalia, or any other justice says that may show which way they might rule. Who knows, the oral argument may be so compelling that Ruth Bader Ginsburg might overturn Roe v. Wade. You think?

|3.29.06 @ 5:41PM|#

Jason-

I don't think any reasonable person thinks that people as intelligent as the Justices think that they could possibly go through life without forming some kinds of opinions on these issues.

What we want is not jurists who are "blank slates," but rather jurists who are willing to question their own beliefs in the face of the evidence, who accept that they may be wrong and therefore are willing to consider the case on the merits. Everyone has biases, but a good jurist will attempt to let go of these biases as much as possible when hearing a case.

Scalia's characterization of the possible right of the detainees to a jury trial as "crazy," and his overt relating of his opinion to his son's situation, makes me believe he is irredeemably biased in this case, and that he will be unable to decide on the merits alone.

Another point would be that appearances are important, and certainly maintaining the appearance that our Supreme Court is offering fair hearings to all comers is important to the fumctioning of our democracy. Merely the fact that he has given the appearance of being biased in a very public way should be grounds enough for recusal.

|3.29.06 @ 5:44PM|#

Jason- Don't the two concerns go hand in hand? Due process of some sort would at least establish some time limit for detention. It's both things that bother me. The idea of scoopinng people up and holding them for however long without a trial is unnerving, even if they are combatants.

|3.29.06 @ 5:47PM|#

And Brian24-Thanks for saying it better than I could.

|3.29.06 @ 5:48PM|#

He didn't say they were crazy, he said a certain suggestion was crazy (if indeed he said that, since this is all "reportedly"). Sounds to me like he was making a statement of his general principles on the subject, not addressing a specific case.

Personally I think it might be better if these Justices simply did their talking through their opinions on the Court. But this little controversy here looks to me like the Hamda advocates are just trying to improve their odds in the case by nullifying Scalia's vote, if they can.

R C Dean|3.29.06 @ 5:57PM|#

I guess Scalia doesn't think it is likely that his son will ever be captured during his combat career. Otherwise, he would be more concerned with how the "good guys" treat POWs.

Or he realizes that Islamist fanatics will treat his son however they want to regardless of any example, good or bad, we try to set for them.

Its not like we starting the whole sawing-the-head-off-with-dull-knives routine, you know.

Which raises a question - I don't recall ever hearing about an American soldier being held as a prisoner by Islamists. Saddam's folks took a few back in the day, sure, but since his regime fell, I don't remember hearing about any Islamist prisoners who were US soldiers.

I guess they're just not taking prisoners. Do you think they came up with that on their own, or are they just aping the US military's famous "no-prisoners" policy?

|3.29.06 @ 6:08PM|#

Or he realizes that Islamist fanatics will treat his son however they want to regardless of any example, good or bad, we try to set for them.

Its not like we starting the whole sawing-the-head-off-with-dull-knives routine, you know.

I would suggest that the decision will nonetheless have consequences for the US troops when the US goes to war in the Balkans or Korea or wherever else they don't have these people who so awe and haunt you!

|3.29.06 @ 6:11PM|#

If you actually look at what Scalia said, there is really no story here. He merely pointed out that illegal combatants fighting overseas against the US Army have no recourse in the Federal Court System, and that it is crazy to think otherwise.

Who is responsible for the threshold determination that they are properly defined as illegal in the first place. If legal prisoners of war have recourse to the courts, then it seems like this threshold determination should be subject to court review.

|3.29.06 @ 6:14PM|#

That was me. The dollar sign was a typo.

|3.29.06 @ 6:24PM|#

Brian:

Let's say that you are philosophically libertarian. I don't know you well enough to know if that is the case, but lets say.

In your heart of hearts, wouldn't you characterize arguments like those in Kelo crazy? What about a public nuisance argument like the one that Spitzer and his H&R proxy JMJ employed in the Ruger 'overproduction of firearms' case?

I'm just worried that if applied broadly, the logic one might use to get Scalia to recuse himself would prevent anyone in these forums from ever having any say over anything important.

Tim Cavanaugh|3.29.06 @ 6:35PM|#

would prevent anyone in these forums from ever having any say over anything important.

Boy, imagine that alternative universe.

|3.29.06 @ 6:45PM|#

Alright, Tim. You won't be my campaign manager when I run for king of the world on the libertarian ticket. I hope you're happy.

Anyway, I'm just suggesting that employing a certain set of principles would mean that libertarians would have to recuse themselves from 99% of all decisions if they happen to become judges or whathaveyou.

|3.29.06 @ 6:48PM|#

Oooh, snap!

|3.29.06 @ 6:52PM|#

Who knows, the oral argument may be so compelling that Ruth Bader Ginsburg might overturn Roe v. Wade. You think?

The Senate confirmation hearings prove that the people most involved with these issues know that the judges have preconceived opinions.

That's official, but it's weird that the web version (which says it was updated today) reads differently.

What does "official" mean in this case, especially if the official version is different from the one that most people (Scalia and anyone on the internet) actually see and read? "Official" when they get sued, or what?

And, I'm glad that others agree with me that the Clinton News Network is more sad than funny. Consensus is Truth.

|3.29.06 @ 7:15PM|#

Jason:

Since you asked, I am philosophically libertarian, and certainly am so on the Kelo case. However, I would not characterize the other side in this case as "crazy." In fact, I understand that there are real issues, such as decaying neighborhoods and the desire to find a more productive use for land, that make people want to have their governments use eminent domain. I think this is misguided for a host of reasons, including "slippery slope" arguments about government power and a philosophical belief in private property rights. But I don't think it's crazy.

I'd say there are few arguments that get all the way to the Supreme Court that do not have at least some considerations to recommend them. That's why they get that far--they're difficult questions. Sometimes I have strong beliefs about which side should win, but I don't kid myself that the other side has nothing useful to say.

I want to emphasize that most of the time, I think people who scream for recusal are making a big deal over nothing. However, in this case I think Scalia went over the line by publicly advertising his vehement opposition to a line of legal reasoning that may be used in this case and relating that opposition to his personal life.

|3.29.06 @ 7:31PM|#

"If you actually look at what Scalia said, there is really no story here. He merely pointed out that illegal combatants fighting overseas against the US Army have no recourse in the Federal Court System, and that it is crazy to think otherwise. I don't know of anybody with a brain that would disagree with such an assesment."

Wasn't Johnny Walker Lindh fighting overseas, not in uniform, against the US Army? Wasn't he tried in Federal Court? It seems to me the government has already established the precedent that, at least in some cases, they do.

|3.29.06 @ 8:28PM|#

But this little controversy here looks to me like the Hamdan advocates are just trying to improve their odds in the case by nullifying Scalia's vote, if they can.

That claim ignores his vote in Hamdi.

Swen Swenson|3.29.06 @ 9:35PM|#

Wasn't Johnny Walker Lindh fighting overseas, not in uniform, against the US Army? Wasn't he tried in Federal Court? It seems to me the government has already established the precedent that, at least in some cases, they do.

Indeed. There is nothing to preclude charging a prisoner of war with war crimes. Johnny Walker Lindh is a US citizen and was caught fighting against the US, that's usually called treason. Charging an individual with war crimes is a long way from arguing that every prisoner of war should be provided with a lawyer and charged with some crime. That argument would appear to be what Scalia is calling "crazy". Bonafide prisoners of war are just that, POWs not criminals, and are subject to being held until the end of hostilities or such time as negotiations between the combatants gain their release.

Granted, when dealing with combatants that aren't in uniform I can see a problem with sorting out the genuine combatants from those unfortunates who were just in the wrong place at the right time. On the other hand, being a combatant and being out of uniform is a war crime and is punishable by death. Somehow, I don't think the folks who argue that the civil rights of the prisoners at Gitmo are being violated really want that charge to be filed against them.

|3.30.06 @ 1:05AM|#

Swen,

The problem is that the Administration has also refused to provide the Guantanamo detainees with the protections afforded to Prisoners of War. They are "detainees." This puts us in the uncomfortable and unseemly position of putting these people into a Soviet-esque legal limbo, where they can't be given trials because they are prisoners of war but they can't be given the protection of the Geneva Conventions because they're not prisoners of war.

An Administration that didn't have its head up its ass would come up with some legal framework under which to judge and hold these people that went beyond "Because I said so." Partly because it's the right thing to do, but even more because this makes it so easy for our enemies in the world to point at us and say, "You see? They're no better than what they pretend to be against."

|3.30.06 @ 12:54PM|#

It's interesting how Scalia has become much more publicly outspoken in the last few years. Perhaps now that he's in his 70s, he's reached that "I don't give a fuck what anybody thinks" time of life. I find it actually kind of refreshing in this boring and proscribed political age of our, though I can see the difficulties for a sitting judge.

Oddly enough, I reached that stage at age 37. Guess I'll never be a Supreme Court Justice.

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