On The Scalia Recusal Question

By Matthew Meiners

Supreme Court Justice Antonin Scalia, often the defender of the Administration in questions of Executive Power, has, during a question and answer period after a lecture, made statements that show that his mind is made up when it comes to detainees access to the civil court system. For him to sit in judgement in the upcoming Hamdan case and not recuse himself, would, in my opinion, be a grave breach of judicial etiquette. I so wish he wasn't on the bench.

“Just over two weeks ago, on March 8th, Justice Scalia gave a speech at the University of Fribourg in Switzerland, the school at which he spent his junior year abroad in the mid-1950's. Apparently he permitted it to be filmed, because [a video of the speech exists]. Justice Scalia is characteristically combative and provocative. For instance, in response to a question about Bush v. Gore, he responds: ‘Come on, get over it.’ He states that the real question in the case was whether the election was to be decided by the Florida Supreme Court or by the U.S. Supreme Court -- ‘not a very hard question,’ in his view -- and ‘there was no way we could have turned that case down.’ He then states that the Florida Supreme Court -- but not the U.S. Supreme Court -- was ‘politically motivated.’ And in response to a question about affording constitutional rights to Guantanamo detainees, he states unequivocally that ‘foreigners, in foreign countries, have no rights under the American Constitution’ and that ‘nobody has ever thought otherwise.’ But see Rasul v. Bush, 542 U.S. 466, 483 n.15 (2004).’”

-Lyle Denniston of SCOTUSblog

These comments seem to make it clear, to this observer at least, that Justice Scalia has already made up his mind when it comes to the military tribunals in Guantanamo and by extension to the Hamdan case.

Scalia is by far my least favorite Supreme Court Justice, and he has refused recusal in past cases where his objectivity has been called into question. It would serve only to lower my opinion of a court that has been severly damaged in the public eye with regard to its image of objectivity.

In the end, a decision to recuse oneself is a personal one, especially for life tenured Supremes, so what can be done? Is writing on this subject a waste of energy. I think not, in general.

No matter how much those in power pretend not to care about their public image, in the end, none of them would be where they are if it they actually did not care. Politics is an exercise in vanity, and those who enter it, do it, to varying degrees, to show other people "how great they are."

So action can be taken. Scalia is a man with a need to be right (I don't think he cares if he's liked, though). If it can be made clear to him that he would be wrong if he did not recuse himself, there is a chance to sway his opinion.

But alas, it is too late for such action to be taken in the Hamdan case. Oral arguments begin tomorrow, and the answer to the question of Scalia's recusal may only come in the minutes before the case is heard: Either he gets up and leaves with the Chief Justice (who has recused himself because of his earlier involvement in the case), or he keeps his seat.

It is unfortunate that Scalia did not recuse himself immediately after the story broke about his comments in Swizerland.

If he stays, there is a chance the case will not be heard on jurisdictional grounds. The court may spit 4-4 on the question of weather the "anti-torture" (yea right) law recently enacted by the other branches in fact strips the SCOTUS of it's appellate jurisdiction in this case or any cases arising out of the petitions emanating from Gitmo Detainees. The Congress has the Constitutional right to limit the court's jurisdiction, but the lawmakers themselves are split as to weather such a limit applies to pending cases, such as Hamdan.

In the end, it's a mess. Scalia should recuse himself, but my reading is that he won't, for the very reason that the 4-4 split could prevent the case from advancing to the merits. This is not a man who's intentions I trust entirely (as compared to, say, Bryer), and I worry every day he is on the court. On the Court he is, though, and so shall remain until he resigns, dies, or is impeached (there's an idea...).

I have very little hope for this country.

I'm sure that many of you have already heard and thought about this, but I figured I'd throw in my two cents...