Should Scalia Recuse Himself From Gitmo Case? - Newsweek Periscope - MSNBC.com

A little prelude here: once upon a time not so long ago, when John Roberts and Sam Alito came before Congress to be confirmed as Justices of the Supreme Court, GOP Congressmen and pro-GOP pundits fiercely contended that these nominees had a duty to withhold all but the most bland statements of their judicial philosophies. Any Democrat who dared to ask the nominees' opinions on any topic more recent or more controversial than Brown v. Board of Education, was blasted for violating the nominees' responsibility to maintain a studied indifference as to all questions that might come before them in court. Anything else was to "politicize" the nomination process.

That said, I await with bated breath the reaction of conservative commentators to Justice Antonin Scalia's comments in Europe a few weeks ago, as reported in Newsweek:

Should Scalia Recuse Himself From Gitmo Case? - Newsweek Periscope - MSNBC.com: "April 3, 2006 issue - The Supreme Court this week will hear arguments in a big case: whether to allow the Bush administration to try Guant�namo 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.' Challenged by one audience member about whether the Gitmo detainees don't have protections under the Geneva or human-rights conventions, Scalia shot back: '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.' Scalia was apparently referring to his son Matthew, who served with the U.S. Army in Iraq. Scalia did say, though, that he was concerned 'there may be no end to this war.'"

My, it almost sounds like Scalia is prejudging the Hamdan case set for hearings tomorrow, doesn't it? Surely it's inappropriate for a Supreme Court justice to do such a thing. What about the famous neutrality of our courts? George Will, any thoughts?

Just to clarify my own thoughts on this: I thought at the time and still think that the nomination kabuki is bogus. After all, conservatives like to remind us all the time that judges are unelected, unaccountable, and fundamentally countermajoritarian. Their appearance before the Senate as nominees is virtually the only "accountability moment" the public will ever get for a public servant who may sit on the bench for 15, 20, or 30 years. While I certainly agree that no nominee should express a specific opinion on a specific issue likely to come before the court, more general questions that seek to reveal how these justices approach constitutional interpretation, and apply that approach to past and present cases, seem entirely appropriate to me. We all know that justices have opinions and should know by now that judging - especially on constitutional questions - is nowhere near the scientific or value-free process that conservatives make it out to be. The nomination process, it seems to me, should not be merely a check to make sure that the nominee has a law degree and a pulse, but also a way to screen out justices whose values lie far outside the mainstream.

That said, being a nominee is different from being a sitting justice of the Court. And any judge - and especially a justice of the highest court in the land - should seek to at least maintain the appearance of objectivity and neutrality and open-mindedness outside the courtroom, for the sake of the integrity of the institution if not for the sake of justice. While he doesn't mention Hamdan as far as we know, Scalia ventures awfully close here to prejudging the case. It's the kind of statement that might make a normal judge recuse himself. Yet somehow I don't think we'll see that happen. And somehow I doubt we'll hear any conservatice criticism, though I will be happy to be corrected on this point.