Topic: Professions & Institutions

Justice Scalia’s Impartiality Problem

The Supreme Court will hear arguments in the case of Hamdan v. Rumsfeld this week, and as in the controversy over his duck hunt with Dick Cheney, Justice Antonin Scalia is under fire for refusing to recuse himself. Unlike the Cheney situation, however, Scalia’s refusal to recuse is ethical and correct.

The case addresses the issue of whether the Bush administration can try Guantanamo detainees in special military tribunals, or if the U.S. Constitution requires that the cases be heard in a federal court. Those who favor the latter view are arguing that his impartiality is in question because of reported remarks made in a speech Scalia delivered on March 8 at the University of Freiburg in Switzerland. There, according to an account in Newsweek, Justice Scalia told attendees that “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.” When he was asked if detainees captured during military operations on the field should be subject to the Geneva Convention, Scalia was quoted as responding, “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.”

The legal standard for recusal is supplied by 28 U.S.C. S 455(a), which states: “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Immediately, lawyers for the detainees and other interested parties and detainee advocates who are clearly not impartial declared that Scalia’s comments bring the statute into effect. But as legal analyst Daveed Gartenstein-Ross points out, Scalia’s remarks in Switzerland simply echoed the opinions he has registered in other detainee cases, such as his dissents in Rasul v. Bush and Hamdi v. Rumsfeld.

The calls for Scalia to recuse himself (it is entirely his decision to make) are based on a willful distortion of the word “impartiality.” The word is meant to apply to situations where a judge or justice has a conflict of interest in a case, and not to circumstances where a judge has a well-established position on a particular issue. Is it conceivable that Justice John Paul Stevens would vote to overturn Roe v. Wade after decades of writing opinions supporting a Constitutional right to abortion? If Stevens reiterates his previous reasoning in a public forum, does that mean he is not “impartial,” and must therefore recuse himself from all future abortion cases? Liberal Senators who have complained bitterly about Supreme Court nominees like Justice Joseph Alito refusing to disclose their views on key issues likely to come before the Court take notice: if this became the standard for recusal, no nominee could ever express his or her views without disqualifying themselves from any future case to which their comments might apply. Then refusing to answer the Senators’ pointed questions would no longer be a matter of strategy, but necessary to remain functional on the Court.

But it is a false standard. An ‘A’ for effort and zealous representation goes to the advocates for the detainees in their clever attempt to remove a jurist whose well established judicial philosophy makes him a likely obstacle to their cause. Still, having established a documented opinion on an issue cannot be grounds for recusal; neither is making public comments reflecting reasoned views that are already on the public record. It is appropriate to question a judge’s impartiality where there is indicated bias for or against a particular party in a dispute, or when a jurist expresses a case-specific opinion before the case has been argued. Scalia’s alleged remarks in Switzerland were neither.

He is on sound ethical ground by refusing to recuse, and that is what he should do.

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