Scalia Recusal Required

As someone who purports to care greatly about the precise meaning of the law, Supreme Court Justice Antonin Scalia has placed himself in a position in which he must recuse himself in an important case that will decide the scope of executive power. Michael Isikoff, who has continually showed his mettle as a diligent reporter, does some digging and pens the following story in the April 3 issue of Newsweek.

The Supreme Court this week will hear arguments in a big case: whether to allow the Bush administration to try Guantánamo detainees in special military tribunals with limited rights for the accused. But Justice Antonin Scalia has already spoken his mind about some of the issues in the matter. During an unpublicized March 8 talk at the University of Freiburg in Switzerland, Scalia dismissed the idea that the detainees have rights under the U.S. Constitution or international conventions, adding he was "astounded" at the "hypocritical" reaction in Europe to Gitmo. "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," he says on a tape of the talk reviewed by NEWSWEEK. "Give me a break." Challenged by one audience member about whether the Gitmo detainees don't have protections under the Geneva or human-rights conventions, Scalia shot back: "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'm not about to give this man who was captured in a war a full jury trial. I mean it's crazy."


This isn't the first time Scalia has commented on matters before the court: two years ago he recused himself from a Pledge of Allegiance case after making public comments about the matter. "This is clearly grounds for recusal," said Michael Ratner of the Center for Constitutional Rights, a human-rights group that has filed a brief in behalf of the Gitmo detainees. "I can't recall an instance where I've heard a judge speak so openly about a case that's in front of him--without hearing the arguments."Other experts said it was a closer call. Scalia didn't refer directly to this week's case, Hamdan v. Rumsfeld, though issues at stake hinge in part on whether the detainees deserve legal protections that make the military tribunals unfair. "As these things mount, a legitimate question could be asked about whether he is compromising the credibility of the court," said Stephen Gillers, a legal-ethics expert. A Scalia recusal (it's entirely up to him) would create problems; Chief Justice John Roberts has already done so in Hamdan because he ruled on it as an appellate judge. A Supreme Court spokeswoman said Scalia has no comment. [emphasis added]

Scalia, who really should have recused himself in the case involving Dick Cheney's secret energy task force given his close relationship and hunting trip with the Vice President, has clearly put himself in a pickle with this speech, which as Isikoff noted was unpublicized. Perhaps the Associate Justice believed that it was all right to prejudge a case during a speech if that speech were not televised or reported on in the U.S. media.

The question of recusal, however, is not one of publicity. It does not matter whether or not Americans know Scalia's position going into the case, only that Scalia has already developed an opinion before hearing arguments before the Court. Simply put, a Justice cannot prejudge cases -- Chief Justice Roberts and Associate Justice Alito said as much during their confirmation hearings as a defense of their unwillingness to admit their true feelings on Roe v. Wade.

Isikoff writes that the recusal of Scalia "would create problems" in light of the fact that Roberts has already done so as well, but the problem would be much greater if Scalia did not do so. Certainly, a ruling from a Court devoid of both Roberts and Scalia might turn out differently than one in which both Justices were included, but this is not grounds enough for overriding each Justice's requirement of impartiality. Regardless of how this might affect the Court's ruling in the Hamdan case, Antonin Scalia must recuse himself for prejudging the case.

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My visit to the Supreme Court to hear the Redistricting Argument

Today I went to the Supreme Court of the United States to hear oral arguments in the consolidated cases of the League of United Latin American Citizens et al. v. Perry, Travis County et. al. v. Perry, Jackson et. al. v. Perry and the GI Forum et. al. v. Perry, or the "Texas Redistricting Cases." I arrived around ten in the morning to wait for the afternoon argument and sat dutifully, number forty in a reasonably cheery line of interested parties for about three hours total of waiting.  

A couple of graduate students in politics from the New School for Social Research were in front of me.  Behind me was an intern for freshman congressman Mike Conaway of Midland, a product of the Texas redistricting.  Despite the partisan diversity, there was camaraderie in waiting out the chilly tedium.  One nice lady I am certain was a Texan offered us cookies.  


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The Stakes This Year

There has been a significant amount of unhappiness and even outrage within the progressive blogosphere are the direction the campaign for Congress has taken in recent months. The likely Democratic Senatorial nominee in Pennsylvania does not fall in line with the party's stance on abortion, a highly charismatic, though somewhat unpolished candidate in Ohio is no longer running for the Democratic Senatorial nomination in that state, and the possibility remains that the blogosphere's favored candidate in the Montana Senate race will not receive his party's nomination. The list goes on.

Some of us in the progressive wing of the blogosphere have contemplated staying home on election day rather than supporting the eventual Democratic nominee in the state. Why, if my candidate did not gain the party nomination -- for whatever reason -- should I go to the polls on election day, let alone try to organize or work to get out the vote in the coming months? The answer comes, from all places, the regressive conservative Paul Weyrich.

In his column today for The National Ledger, Weyrich discusses the possibility that the tenure of Supreme Court Justice John Paul Stevens might not last until the next Presidential election. Weyrich writes,

[The] rumor is that President George W. Bush will have another vacancy on the Supreme Court when the term ends this coming June.

One Senator claims he has specific knowledge that the vacancy is coming. The speculation revolves around 85-year-old Associate Justice John Paul Stevens.

Is there any particular reason to believe that Paul Weyrich has genuine insider information about John Paul Stevens' future on the Supreme Court? No, so let's get that out of the way.

What Weyrich does with this column, however, is to remind those on both sides of the aisle just what the stakes are this November. This isn't just about Iraq, this isn't just about Social Security, this isn't just about healthcare -- though it is about these things to a great extent -- this is also about the future of American jurisprudence. The next Associate Justics of the United States Supreme Court will have immense sway over the direction of the court, particularly if the next vacancy comes from the seat held by John Paul Steven, or that of Ruth Bader Ginsburg, for that matter.

Will a Bob Casey vote to stop the nomination of an extreme conservative to the Court? It's not entirely clear, though his track record of voicing support for Bush's nominations of John Roberts and Samuel Alito does not provide much hope that he will vote to uphold a woman's right to choose, for instance. But with Bob Casey in the United States Senate, along with Democrats in red states like Missouri, Ohio, Montana, and maybe even Arizona, Virginia and Nevada, Patrick Leahy could chair the next hearing on the nomination to the Supreme Court. Without Bob Casey and other moderate or conservative red state Dems, Arlen Specter could have yet another opportunity to prove that he can cave to the Bush administration when push comes to shove.

Is it enjoyable to hold your nose and vote for a candidate you did not support during the primary campaign? Usually not, no. But if the potential reward is a Democratic-controlled Senate Judiciary Committee while the potential downside is another Samuel Alito or two on the Supreme Court, I know that I'd be voting for a Democratic Senate instead of a Republican Senate in the 110th Congress.

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The Courts Will Judge Bush? Not Even Close

The courts will judge Bush? Yeah -- well, no, not so much. The majority of the Supreme Court -- the controlling group of fascist thugs who shredded the Constitution to set up the Bush-Cheney Illegitimacy and its unconstitutional power grab in January 2001, who shredded federalism and legal equity with "Raich" in 2005, and who shredded "eminent domain" in 2005 so that predator elitists all over the world can have any US property they want -- are incompetent to judge anything. And they're the ones who will keep Bush safe from any lower federal bench judgment.

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Alito's first votes n_go_su_co/scotus_death_penalty;_ylt=Ak6 O2NBLSUZBH2eLoCblZjOs0NUE;_ylu=X3oDMTA2Z 2szazkxBHNlYwN0bQ--

I know it hardly determines the man to be an uber-liberal, but it is still an interesting break with the conservatives on his first full day of work.

Alito joins the four liberals and one moderate to force Missouri to allow a stay of execution rather than expediting it.

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