Scalia asked to step aside
Five retired generals and admirals, taking part as friends-of-the-court in the war-on-terrorism case of Salim Ahmed Hamdan, on Monday asked Justice Antonin Scalia to step aside when the Supreme Court considers Hamdan’s challenge to the war-crimes tribunals named “military commissions.” Hamdan v. Rumsfeld (05-184) is to be argued Tuesday.
In a three-page letter to the Court’s clerk (available here), the attorney for those individuals argued that “Justice Scalia ahould recuse himself from further participation in this case in light of remarks that the Justice made earlier this month at the University of Fribourg in Switzerland. Those remarks, since widely publicized, give rise to the unfortunate appearance that, even before the briefing in this case was complete, the Justice had made up his mind about the merits.”
Hamdan’s own attorneys have not asked the Justice to recuse. In response to queries, his lawyers issued this statement: “Hamdan’s counsel have been asked regarding our position on the recusal of Justice Scalia from the case in light of the letter suggesting recusal that was filed today. We take no position on the issue.”
Under the Court’s usual procedures, such a request is not formally docketed, but is simply “received,” and may be passed on to the Justice who is challenged. It is up to that individual Justice to decide whether to recuse or to take part. Justice Scalia, challenged for out-of-court remarks he had made about the Pledge of Allegiance litigation, did recuse himself from the Court’s ruling on that issue in June 2004. But, challenged over a hunting trip he had made with Vice President Cheney, Scalia declined to take himself out of a case involving the government energy task force that Cheney had chaired; that case, too, was decided in June 2004.
The new challenge was filed by David H. Remes of Covington and Burling, who is counsel for retired generals David M. Brahms and James P. Cullen and retired admirals Lee F. Gunn, John D. Hutson and Donald J. Guter.
Remes said that Scalia’s comments in Switzerland “also give rise to the unfortunate appearance that the Justice may bring to this case a personal animus toward Petitioner and those similarly situated arising from the military service of the Justice’s son in Iraq. In a case that is fundamentally about fair process, it is especially important that this Court’s own process be perceived to be fair.”
The letter recited an account of Scalia’s remarks in the online site of Newsweek magazine. The retired military officers are taking part in the case to support Hamdan’s challenge to military commission procedures based on the 1949 Geneva Convention.
The letter concludes” Amici respectfully submt that, at the very least, Justice Scalia’s impartiality ‘might reasonably be questioned’ in this case based on his remarks at the University of Freiburg and that the Justice;’s remarks may violate Canon 3-A-6 [of the Code of Conduct for United States Judges.” It suggests that Scalia’s comments make it appear that he had made uphis mind about the Geneva Convention issue, and that he has a personal bias because of his son’s military service.
Scalia has no obligation to respond to the letter. Indeed, the only indication of a reaction could be whether he remains on the bench Tuesday after the Court finishes the scheduled first argument, and prepares to hear the Hamdan case.
If Scalia were to step aside, it would mean that the case would be heard by only seven Justices, since Chief Justice John G. Roberts, Jr., is not taking part, having served on the D.C. Circuit Court panel that upheld the war crimes tribunals.
Of course they want him recused. If Scalia is out, they’ll likely win. All they’ll need is 4 votes, and they’ll get them from the internationalists Breyer, Stevens, Souter, and Ginsburg.
While I wish Scalia did not say what he did publically, he should not recuse himself. All he did by recusing himself in the Pledge case was embolden those who can’t get his vote to try to get him out.
We all know that this will become a HUGE issue for the next few weeks. When I hear that Ginsburg or Breyer should recuse themselves from a case just as loudly as I hear it about Scalia, maybe I’ll pay attention.
Comment by Brian G — March 27, 2006 @ 8:02 pm
Entirely aside from the merits of the recusal question, I think that these amici have stepped outside their proper role in asking for recusal. The function of an amicus is to file a brief “that brings to the attention of the Court relevant matter not already brought to its attention by the parties,” Rule 37.1, and that’s it. Procedural motions are for the parties.
Comment by Kent Scheidegger — March 27, 2006 @ 8:03 pm
I just read the letter and have to add this. To bring up Scalia’s son’s service in Iraq as a basis for animus towards one side is despicable. Now, if Scalia ends up recusing himself here, which he should not do, I am sure we’ll get a letter like this every time a case rooted in the war on terror comes before the court.
And why shouldn’t these attorneys write a letter like this and put it out there for public consumption? They know full well that their pals in the media will eat it up, and not simply present it fairly like this site did.
Comment by Brian G — March 27, 2006 @ 8:09 pm
Brian G:
That’s an interesting construction. If “[t]o bring up Scalia’s son’s service in Iraq as a basis for animus towards one side is despicable,” then the spite should be directed at the individual who first suggested that that service was the basis for animus, that is, Scalia himself.
Scalia said
a. that “If [a hypothetical detainee] was captured by my army on a battlefield, [Guantanamo] is where he belongs”
b. that he “had a son on that battlefield and they were shooting at [his] son” and
c. that he is then ” not about to give this man who was captured in a war a full jury trial.”
The only logical conclusion is that certain results were off the table for him in advance of hearing the specifics of a case, as a result of (perfectly natural, admittedly) announced intentional bias.
If we are to believe that Scalia was not lying (and I have seen no reason to believe that he was), the only way he would entertain the possibility of certain habeas rights in a detainee case would be when the detainee was not captured on a battlefield. But that fact is not contested in Hamdan, so we can only assume that he’ll be working within the limited set of possible solutions he has imposed for himself as a result of his status as a father.
He should recuse as a result of his announced conflict.
Comment by dunno — March 27, 2006 @ 9:25 pm
I agree with the second comment; how does a non-party even have standing to file a recusal motion or suggestion? Seems to me that’s up to the parties (and then the justice, or the justice on his or her own motion).
Comment by tabman — March 27, 2006 @ 11:15 pm
I just found another document that Scalia expressed his opinion on the matters before the court in this case: Rasul v. Bush (Scalia, J. dissenting)
Dunno, when you and your ilk call for the recusal of Ginsburg in every ACLU case (she was, after all, their top attorney) and complain that Breyer ruled on sentencing guidlines that he helped write as a Senate staff attorney, I’ll listen. Until then, I see the move to have Scalia recuse himself for what it is: an attempt at outcome manipulation.
Comment by Brian G — March 28, 2006 @ 2:34 am
Brian G, you said
“…why [should] these attorneys write a letter like this and put it out there for public consumption? They know full well that their pals in the media will eat it up, and not simply present it fairly like this site did.”
seems to me like that’s how a democracy works. if the media are off-base, scalia will feel no pressure to recuse himself. if the media commentary is incisive and the pressure mounts, then he might feel compelled to recuse himself. It’s one of the few checks on the anti-majoritarian body that is the court, no?
Comment by juantastic — March 28, 2006 @ 5:49 am
Brian G:
To be clear, I do not think being a father requires recusal, only that saying in a public forum that being a father factors into deciding cases should be cause for recusal. If Ginsburg said in a speech, “The ACLU? They cut my paychecks. Of course I’m going to remember that in conference,” then I’d hold her to the same standard. A justice should not announce that his mind is to some extent made up by factors external to the case, and still expect to hear it with the rest of the Court.
All that said of course, I do think Kent and tabman are right about amici’s standing, and it will be interesting to see how petitioner’s decision to stand on the sidelines of this motion affects its reception at the Court.
Comment by dunno — March 28, 2006 @ 8:38 am
I don’t know why Scalia keeps behaving this way. All of the other Justices have the prudent, common-sense good judgment to avoid commenting publicly on matters that are directly before the Court. It’s simply not the same thing as Ginsburg’s service with the ACLU decades ago. She doesn’t make contemporaneous public comments on the specific issues and/or litigants that are on the current docket.
Now, no one really believes that the Justices come to these cases with open minds, particularly where the subject at hand has been to the Court in the recent past. Does anyone think that Scalia (or, for that matter, anybody) freshly re-thinks his position every time an abortion case comes to the Court? Of course not. But the rest of them have the good sense to keep their mouths shut about the current case docket, and speak through their published opinions.
Comment by Marc Shepherd — March 28, 2006 @ 10:07 am
Dunno (I’ll say):
“The only logical conclusion is that certain results were off the table for him in advance of hearing the specifics of a case, as a result of (perfectly natural, admittedly) announced intentional bias.”
I thought the only logical conclusion was that certain results are off the table in advance of hearing specifics that might avoid his general rule.
Your interpretation suggests that (for example) any garden variety speech putting forth a strong and uncontroversial opinion on the breadth of the First Amendment’s protection of speech wrongfully prejudices pretty much all free speech cases. That can’t be right.
Comment by Dylan — March 28, 2006 @ 10:15 am
Dylan:
Scalia’s stated rule is that nobody captured on a battlefield in Afghanistan should get a jury trial because “they were shooting at [his] son.” I don’t think that would qualify as an “uncontroversial” reading of Supreme Court habeas caselaw, which to my knowledge does not reference Scalia’s children.
Comment by dunno — March 28, 2006 @ 2:03 pm