Recuse Thyself!
Traditionally, appellate judges, especially those on the US Supreme Court, have kept a fairly low profile. They rarely speak publically, and when they do, it is usually to legal audiences on general principles of jurisprudence. Recently, however, several members of the Supreme Court (past and present) have gotten headlines by speaking in less traditional venues. Justice Ginsburg and retired Justice O'Connor have spoken about recent attacks on the independence of the judiciary. Justice Scalia, on the other hand, recently spoke on an issue which is shortly to come before him. He made it clear that his mind was made up on that issue even before hearing the arguments. The Washington Post published a story based on a Newsweek article:
Supreme Court Justice Antonin Scalia reportedly told an overseas audience this month that the Constitution does not protect foreigners held at the U.S. military prison at Guantanamo Bay, Cuba.
He also told the audience at the University of Freiburg in Switzerland that he was "astounded" by the "hypocritical" reaction in Europe to the prison, this week's issue of Newsweek magazine reported.
The comments came just weeks before the justices are to take up an appeal from a detainee at Guantanamo Bay. The court will hear arguments tomorrow on Salim Ahmed Hamdan's assertion that President Bush overstepped his constitutional authority in ordering a military trial for the former driver of al-Qaeda leader Osama bin Laden. Hamdan has been held at the prison for nearly four years. [Emphasis added]
To be fair, Justice Scalia had previously made his opinion known in the more traditional manner: he wrote the dissent on a previous case before the Court in which the issue of the rights of a detainee to use the civilian courts for redress was heard. However, the justice's most recent comments went far beyond that opinion and quite clearly bear on the upcoming case.
Under the circumstances, and with that clearly expressed bias, Justice Scalia should recuse himself from the Hamdan case. The Judicial Code of Ethics requires no less.
Supreme Court Justice Antonin Scalia reportedly told an overseas audience this month that the Constitution does not protect foreigners held at the U.S. military prison at Guantanamo Bay, Cuba.
He also told the audience at the University of Freiburg in Switzerland that he was "astounded" by the "hypocritical" reaction in Europe to the prison, this week's issue of Newsweek magazine reported.
The comments came just weeks before the justices are to take up an appeal from a detainee at Guantanamo Bay. The court will hear arguments tomorrow on Salim Ahmed Hamdan's assertion that President Bush overstepped his constitutional authority in ordering a military trial for the former driver of al-Qaeda leader Osama bin Laden. Hamdan has been held at the prison for nearly four years. [Emphasis added]
To be fair, Justice Scalia had previously made his opinion known in the more traditional manner: he wrote the dissent on a previous case before the Court in which the issue of the rights of a detainee to use the civilian courts for redress was heard. However, the justice's most recent comments went far beyond that opinion and quite clearly bear on the upcoming case.
Under the circumstances, and with that clearly expressed bias, Justice Scalia should recuse himself from the Hamdan case. The Judicial Code of Ethics requires no less.
posted by Diane at 3:34 AM
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