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Monday, Mar 27, 2006, 11:34 am

Scalia decides case before he hears it

By Brian Zick
Kevin Drum calls attention to this story from Mikey Isikoff at Newseeek:

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.
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 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."
"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.

Kevin speculates:
Will Scalia recuse himself following this blunder? I'm going to take the underdog bet on this one and say that he does. Even Supreme Court justices are susceptible to peer pressure, and I have to figure that he's going to feel some heat from his fellow Supremes in this case.

I’m willing to be pleasantly surprised, but I don’t have a clue why Drum thinks Scalia will suddenly display any ethics at this stage of the game. A mere three weeks after the court agreed to hear Dick Cheney’s appeal in the energy task force case, Scalia went duck hunting with his pal Dick, and yet, despite the rather obvious appearance* of conflicted interest, he refused to recuse himself.

* Michael Dorf at FindLaw wrote a noteworthy examination of that non-recusal. Dorf supported Scalia's decision in that circumstance, but objected to Scalia's pronounced superciliousness.
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