If nominees to the Supreme Court can not discuss matters that may come before them, then sitting Justices surely can not discuss matters that ARE before them. Unless, apparently, you are
Antonin Scalia:
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. "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," he says on a tape of the talk reviewed by NEWSWEEK. "Give me a break."
Well, I happen to believe that judicial nominees should have to answer the questions put to them by Senators and if they do not, they should not be confirmed. So I am less bothered by Scalia's comments than most. His NOT saying what he thinks is not going to stop him from thinking it.
But Scalia has established a precedent before. And it binds him ethically now. I'll discuss it on the flip.
Remember
Michael Newdow? Scalia recused then:
"Scalia's action is extraordinarily important," says Hofstra University School of Law professor Monroe Freedman, who organized a conference last month on judicial ethics that focused in part on off-the-bench speech by judges. The recusal was a rare acknowledgment by a justice that his public comments left him unable to "view the case with an open mind," Freedman says, adding that Scalia "tries to be principled" on matters of ethics. Freedman thinks advocates should be scouring other justices' speeches for signs of bias.
"It was probably the right thing for Justice Scalia to do," adds University of Pennsylvania Law School professor Geoffrey Hazard Jr. "And perhaps one might say that, more often, justices ought to do this when they've been emphatic in their prior pronouncements off the bench."
. . . Yet advocates rarely, if ever, do what Newdow did in pointing out such statements in a formal recusal request. Within the community of lawyers who argue before the Court, Newdow's brash move upset long-standing, but unspoken, rules of etiquette that frown on asking justices to recuse themselves.
Like all federal judges, the justices are subject to a federal ethics law -- 28 U.S.C. Section 455(a) -- that requires recusal when a judge's "impartiality might reasonably be questioned." But they make their recusal decisions without judicial review -- and usually don't bother to explain those decisions to the public.
If he recused then, he has to recuse now. Otherwise, there are questions raised on his inconsistency. Did Cheney tell him BushCo 'really needs this one?'