Should Scalia recuse himself?

[kallend 2,106]

In a speech in Freiburg, Switzerland on March 8th Scalia said about Guantanamo detainees:

"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."

Yesterday the SCOTUS heard just such a case. Should a justice who has made a statement clearly indicating that he has prejudged an issue before the court recuse himself?

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The only sure way to survive a canopy collision is not to have one.

[beowulf 1]

No he judged correctly

[Andy9o8 2]

Yes, because he pre-judged the issue before the Court.

Whether his pre-judgment is "correct" or "incorrect" is irrelevant to the issue of recusal.

This is not the first time Scalia should have recused himself but didn't. Since there's no higher authority than the Supreme Court itself, he can pretty much get away with doing that.

[Richards 0]

Yes. While I can sympathise with his sentiments, he is a judge and has an ethical obligation to be above bias.

Richards

My biggest handicap is that sometimes the hole in the front of my head operates a tad bit faster than the grey matter contained within.

[Lucky... 0]

And don't forget that the US Sup Ct and this admin in ger=neral have been weaving these prisoners in and out of soldier status as they mistreat them. They are enemy combatants one day, not the next; whatever fits the issue.

[masterblaster72 0]

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Should a justice who has made a statement clearly indicating that he has prejudged an issue before the court recuse himself?

Absofreakinglutely.

But Scalia is a Republican lackey and a worm of the lowest kind who either doesn't understand his role as Justice or has no regard for it at all. You can definitely count on him NOT to recuse himself. I'll be quite surprised if he does.

Be humble, ask questions, listen, learn, follow the golden rule, talk when necessary, and know when to shut the fuck up.

[kelpdiver 2]

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Yes, because he pre-judged the issue before the Court.

the pre-judging is always a factor - remember that the court decides which cases they want to hear, and which they'll ignore.

[kallend 2,106]

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Yes, because he pre-judged the issue before the Court.

the pre-judging is always a factor - remember that the court decides which cases they want to hear, and which they'll ignore.

Even that is done with benefit of briefs from counsel and lower court transcripts. In this case Scalia made a statement about the merits of a case before the court before hearing the arguments.

Is it important that justice is seen to be done?

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The only sure way to survive a canopy collision is not to have one.

[OATSF14 0]

Agreed

[lawrocket 3]

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Should a justice who has made a statement clearly indicating that he has prejudged an issue before the court recuse himself?

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Absofreakinglutely.

But Scalia is a Republican lackey and a worm of the lowest kind who either doesn't understand his role as Justice or has no regard for it at all. You can definitely count on him NOT to recuse himself. I'll be quite surprised if he does.

I believe that for the sake of pragmatism, he should recuse himself. Is his hearing of this case technicaly unethical? Probably not, for he has not commented on this case in public - only facts surrounding it.

I'll put it this way - should a judge who has spoke up about the need to give harsh sentences to drunk drivers be prohibited from hearing a drunk driving case? Should a federal judge who has publically questioned the constitutionality of federal sentencing guidelines recuse himself from a criminal drug case?

I think the answer is "no."

Also, the fact that this case has made it to the SCOTUS indicates that the judges all know about it - they need to grant Certiorari! Like it or not, most judges form opinions on cases before they get to oral argument. Doyou think Scalia didn't read the briefs? Yesterday was not about, "Counsel, tell us about your case." It's a question and answer session.

I'd invite any of you to look at slip opinions denying certiorari. You'll find nice tidbits of judicial opinions on cases before they are heard.

Still, I think as a matter of pragmatism, he probably should.

My wife is hotter than your wife.

[kallend 2,106]

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Should a justice who has made a statement clearly indicating that he has prejudged an issue before the court recuse himself?

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Absofreakinglutely.

But Scalia is a Republican lackey and a worm of the lowest kind who either doesn't understand his role as Justice or has no regard for it at all. You can definitely count on him NOT to recuse himself. I'll be quite surprised if he does.

I believe that for the sake of pragmatism, he should recuse himself. Is his hearing of this case technicaly unethical? Probably not, for he has not commented on this case in public - only facts surrounding it.

I'll put it this way - should a judge who has spoke up about the need to give harsh sentences to drunk drivers be prohibited from hearing a drunk driving case? Should a federal judge who has publically questioned the constitutionality of federal sentencing guidelines recuse himself from a criminal drug case?

I think the answer is "no."

Also, the fact that this case has made it to the SCOTUS indicates that the judges all know about it - they need to grant Certiorari! Like it or not, most judges form opinions on cases before they get to oral argument. Doyou think Scalia didn't read the briefs? Yesterday was not about, "Counsel, tell us about your case." It's a question and answer session.

I'd invite any of you to look at slip opinions denying certiorari. You'll find nice tidbits of judicial opinions on cases before they are heard.

Still, I think as a matter of pragmatism, he probably should.

Surely saying, in advance,

"I'm not about to give this man who was captured in a war a full jury trial. I mean it's crazy"

is rather different than granting certiorari. It's telling everyone that he's already made up his mind.

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The only sure way to survive a canopy collision is not to have one.

[brierebecca 0]

I need to recuse myself from this thread because I've already determined that Scalia being on the court is bad for the side I want to win, so I am not able to render an objective opinion.



Brie

"Ive seen you hump air, hump the floor of the plane, and hump legs. You now have a new nickname: "Black Humper of Death"--yardhippie

[Gawain 0]

I don't know. If he does, that leaves 7 on the bench to judge it right? (because one of the other justices already recused himself right?)

I happen to agree with him though. I think that the military should be able to conduct its own hearings on EPWs caught on the battlefield.

So I try and I scream and I beg and I sigh
Just to prove I'm alive, and it's alright
'Cause tonight there's a way I'll make light of my treacherous life
Make light!

[JohnnyD 0]

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I don't know. If he does, that leaves 7 on the bench to judge it right? (because one of the other justices already recused himself right?)

I happen to agree with him though. I think that the military should be able to conduct its own hearings on EPWs caught on the battlefield.

If they would just get around to doing it, I don't think many people would have a problem with it.

[gmanpilot 0]

Did Scalia make the comment about the actual detainee or case that was to be heard before the SCOTUS, or was he talking hypothetically?

Scalia is a nut, but he is probably the most respected Justice among his peers.

_________________________________________
-There's always free cheese in a mouse trap.

[wmw999 2,534]

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Did Scalia make the comment about the actual detainee or case that was to be heard before the SCOTUS, or was he talking hypothetically?

OK, imagine you're going to traffic court. The judge has been heard in a public meeting to say that anyone caught going over the speed limit in a sports car won't get anything but the max from him because they're dumbasses.

You drive a sports car. He wasn't talking about you, but do you really want to be in his court, asking to be able to take defensive driving? Or telling him about the sick kid in the passenger seat you were taking to the hospital?

No, the situtations are not exactly the same. But a judge does need to be careful of what he or she says. Not because they're not allowed to have opinions and prejudices, but because on EITHER SIDE people are going to remember and wonder whether he reached his judgment because he was going to anyway, or because he evaluated the evidence.

Wendy W.

There is nothing more dangerous than breaking a basic safety rule and getting away with it. It removes fear of the consequences and builds false confidence. (tbrown)

[gmanpilot 0]

Justices publicly discuss legal theories and give opinions all the time, at conferences, in print, PBS, etc. Scalia is pretty outspoken, but most of them do it to one extent or another.

_________________________________________
-There's always free cheese in a mouse trap.

[Andy9o8 2]

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Did Scalia make the comment about the actual detainee or case that was to be heard before the SCOTUS, or was he talking hypothetically?

I think the "tone" of his remarks was technically "in the hypothetical", but he certainly is aware of the matters pending before the Supreme Court. He should know that all Supreme Court justices are under a microscope when speaking in public. His comments were damned imprudent.

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Scalia is a nut, but he is probably the most respected Justice among his peers.

I'm not sure that's the case. Yes, he's respected for his intellectual and scholarly capacities, but most (not all) of the current crop of SC justices are pretty brilliant or nearly so in their own rights, so among them that's no big whoop. But he uses his intellect to be, well, intellectually dishonest; and for that, I think (from reading quite a few opinions at odds with his) that there are some other SC justices who see his deliberate intellectual dishonesty for what it is; and that lessens their respect for him.

[kallend 2,106]

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Did Scalia make the comment about the actual detainee or case that was to be heard before the SCOTUS, or was he talking hypothetically?

I think the "tone" of his remarks was technically "in the hypothetical", but he certainly is aware of the matters pending before the Supreme Court. He should know that all Supreme Court justices are under a microscope when speaking in public. His comments were damned imprudent.

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Scalia is a nut, but he is probably the most respected Justice among his peers.

I'm not sure that's the case. Yes, he's respected for his intellectual and scholarly capacities, but most (not all) of the current crop of SC justices are pretty brilliant or nearly so in their own rights, so among them that's no big whoop. But he uses his intellect to be, well, intellectually dishonest; and for that, I think (from reading quite a few opinions at odds with his) that there are some other SC justices who see his deliberate intellectual dishonesty for what it is; and that lessens their respect for him.

His comments were on March 8, less than 3 weeks before the case was argued before the SCOTUS. He
most CERTAINLY knew this case was pending before the court, and his remarks exactly fit the circumstances of this case.

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The only sure way to survive a canopy collision is not to have one.