Parts is parts

March 28, 2006 6:19 AM

Justice Scalia spoke in support of Guantanamo Bay earlier this month, despite the fact that Gitmo cases such as Hamdan v. Rumsfeld are pending before the Supreme Court. "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," Scalia said, prompting calls that he recuse himself from the case, which will be heard today. Justice Roberts has already done so, as he has previously ruled on Hamdan.
posted by If I Had An Anus (31 comments total)

You think Scalia could be confirmed today?

That said, I don't really know what the big deal in his saying these things. He's going to have the opinions wether he states them or not.
posted by delmoi at 6:36 AM on March 28, 2006

But Scalia won't, because he's a hypocritical toad. Sorry, yelling folks, won't happen.
posted by klangklangston at 6:38 AM on March 28, 2006

He will probably just make a Sicilian hand gesture to his critics.
posted by birdherder at 6:42 AM on March 28, 2006

Court rules say that justices must recuse in cases where their impartiality "might reasonably be questioned."

This appears to be "the big deal."
posted by scottreynen at 6:44 AM on March 28, 2006

Some dude on NPR this morning mentioned that it wasn't the opinion-stating so much as the opinion-based-on-his-son-in-the-military-stating that would indicate recusal.
posted by rxrfrx at 6:45 AM on March 28, 2006

So I'm thumbing through my copy of the constitution, but I can't find the part where it says that in times of war the president can ignore the constitution and any laws passed by congress that he finds inconvenient.

Where exactly does it say that? George Bush has said repeatedly that he believes in "strict interpretation" of the constitution. If the power to ignore the constitution and the congress is not specifically spelled out, then by his own rules, it doesn't exist.

I know he's not a hypocrite, so it must be in there somewhere. Where is it?
posted by Jatayu das at 6:54 AM on March 28, 2006

From the article:

The case to be heard today -- Hamdan v. Rumsfeld, No. 05-184 -- is one of the most important terrorism-related cases to reach the court. It is a challenge by Osama bin Laden's former chauffeur, now being held at Guantanamo Bay, to the legality of the military commission that seeks to try him for war crimes.

posted by cribcage at 7:00 AM on March 28, 2006

"Strict Constitutionalists" are, in large part, about as strict as "Bible literalists" are literal.

Compare with "Honest Dave's Used Cars."

When someone has to tell you what they are, that's often a good indication they're not.
posted by sonofsamiam at 7:03 AM on March 28, 2006

Well, after he didn't recuse himself from the Cheney energy commission case, I have my doubts that he'll do that here. Although, to be fair, if I went hunting with Cheney and he didn't shoot me I might feel grateful enough myself for a little quid pro quo.
posted by OmieWise at 7:11 AM on March 28, 2006

Jatayu: From their point of view they have done nothing against The Constitution and haven't ignored it. That's the case they keep trying to make.
posted by Captaintripps at 7:15 AM on March 28, 2006

Is Scalia posting on MeFi?
His crazy interpretations of law remind me of someone here.
Also, does Scalia belong to Opus Dei? His attitudes, actions and behaviors point in that direction.
posted by nofundy at 7:18 AM on March 28, 2006

(Speaking of recusals, the judge in the case of the Subgenius mom has recused himself. A transcript is also now available.)
posted by If I Had An Anus at 7:58 AM on March 28, 2006

This is one area where all trust is put into the hands of a single individual, without any real oversight. It appears that this particular individual may not be deserving of such trust. The only oversight beyond public condemnation is impeachment. These instances are pretty much limited to potential impartiality and I doubt a supreme court justice would get impeached without there being a more blatant instance of impartiality. So you have a guy who does not appear to respect the rules of the court and there is precious little that can be done about it.
posted by caddis at 8:01 AM on March 28, 2006

Here are some relevant facts:

I. In response to a question from the audience about civil court trials for terror suspects, Justice Scalia brought up a hypothetical combatant and said, "I am not about to give this man who was captured in a war a full jury trial. I mean it's crazy."

II. Question 1 of the writ of certiorari granted in No. 05-0184, Hamdan v. Rumsfeld, reads as follows:

"Whether the military commission established by the President to try petitioner and others similarly situated for alleged war crimes in the “war on terror” is duly authorized under Congress's Authorization for the Use of Military Force (AUMF), Pub. L. No. 10740, 115 Stat. 224; the Uniform Code of Military Justice (UCMJ); or the inherent powers of the President?"

III. 28 U.S.C. section 455 provides, in relevant part:

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding . . .

IV. The American Bar Association Model Code of Judicial Conduct, Canon 3, Section E provides in relevant part:

(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality* might reasonably be questioned, including but not limited to instances where:
(a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding . . .

So, has Justice Scalia violated federal law and/or the canons of judicial ethics? If so, what does the Constitution provide as a remedy?

That's right, get in the back of the line behind Bush, Cheney, Rove, Rumsfeld, Rice, Gonzales . . .
Impeachment - it's what's for dinner!
posted by Saucy Intruder at 8:21 AM on March 28, 2006

caddis writes "This is one area where all trust is put into the hands of a single individual, without any real oversight."

Well, he isn't deciding any cases on his own, he's part of a team. I'd like to know what kind of discussions the Justices have with each other about this kind of thing.
posted by OmieWise at 8:34 AM on March 28, 2006

I hope we never, ever find out what goes on behind closed doors at the Court. Nothing good will come of it.

There are a lot of people who enjoy poking holes in everything for the sake of truth and honesty. Those people are idealistic and idealistic is nice, but practical and rational are better. Those people would do well to learn principles like "don't fix what ain't broke" and "all things in moderation." Those people might consider that their notions about total, complete, brutal honesty are entirely incompatible with trust, and that the latter is absolutely required for the function of any society.
posted by cribcage at 8:43 AM on March 28, 2006

I tend to agree with you cribcage. My comment was more by way of curiousity than prescription.
posted by OmieWise at 8:52 AM on March 28, 2006

sonofsamiam, that rule also applies to countries, eg Democratic Republic of Congo, People's Republic of China, United States of America. And so on.
posted by eisbaer at 8:55 AM on March 28, 2006

What Saucy said--how can he be either forced to recuse, or be removed?
posted by amberglow at 8:58 AM on March 28, 2006

"War is war, and it has never been the case that when you captured a combatant chicken farmer you have to give them a jury trial in your civil courts."
posted by homunculus at 9:55 AM on March 28, 2006

He can't be forced to recuse himself by the Chief or anyone else. The rules don't require him even to entertain a petition; though he did write an opinion justifying nonrecusal in the Cheney duck-hunt case.

He can only be removed from office by impeachment and conviction. Note that only the president, VP, and "officers" - usually taken to mean cabinet heads and other major executive officials - are subject to the "high crimes and misdemeanors" standard. A judge may be impeached upon determination that he does no longer have the "good behavior" necessary to retain tenure. Arguably this is a much lower standard.
posted by Saucy Intruder at 9:59 AM on March 28, 2006

I think this situation might have interesting blowback if Scalia doesn't recuse himself, given the increasingly loud anti-judiciary rumblings about "unaccountable judges" from some of the more fervent subgroups on the far right wing...
posted by twsf at 9:59 AM on March 28, 2006

Don't skip reading that link, folks.

They Came for the Chicken Farmer
The New York Times | Editorial
Wednesday 08 March 2006


How can you know it's important? Because the NYT shows it only to paying customers now. Good thing it was copied elsewhere and that we still have 'fair use' of it. Try finding those facts elsewhere!
posted by hank at 10:04 AM on March 28, 2006

cribcage, are you talking about secrecy at a moment in time, or for all history? I have no trouble with the former, but the latter is abhorrent.

Public disclosure of in camera discussions could certainly damage the outcome of a case, or the career of a justice, but that justifies secrecy for a few decades, not "never, ever".
posted by Chuckles at 10:05 AM on March 28, 2006

posted "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"

I thought the US is on record as saying the GitMo detainees aren't POWs. This is the real crime here, officially these guys are neither POWs due the process of the Geneva Conventions nor noncombatants due protections of the constitution and the laws of the land.
posted by Mitheral at 10:23 AM on March 28, 2006

The interesting thing is that the supreme court nominees say that they can't possibly discuss matters which might come before the court during their confirmation hearings for a lifetime appointment. But as soon as they are confirmed they are free to talk about any subject they want. I would rather hear their opinions before they are confirmed.

Scalia has given many controversial speeches about gays, abortion, the death penalty, church and state, and GitMo, but only after he was safely confirmed.
posted by JackFlash at 10:36 AM on March 28, 2006

Scalia could hardly have given a speech about GitMo before he was confirmed. Are you confusing him with Alito?
posted by sonofsamiam at 10:46 AM on March 28, 2006

Mitheral,

You hit the nail on the head. Scalia's interpretation is going to be that the um, people, in Guantanamo are neither prisoners of war nor noncombatants but captured combatants. That's my guess. I hate this guy.
posted by xammerboy at 11:35 AM on March 28, 2006

Scalia could hardly have given a speech about GitMo before he was confirmed.

I never said he did. I said that Scalia is perfectly comfortable making public statements about his opinions on many issues that come before the court, but only after his confirmation. GitMo is only the latest example.
posted by JackFlash at 11:36 AM on March 28, 2006

Scalia should obviously recuse himself but he won't, because he's a hypocrite--he thinks he's above the law. That said, what would be a standard for recusal form the perspective of a legal and moral relativist like him? It's just bizarre. It's a small comfort that he'll never be Chief Justice, given his radical nature.
posted by bardic at 12:20 PM on March 28, 2006

Because I Say So
posted by homunculus at 12:40 PM on March 29, 2006