Scalia Claims Guantanamo Detainees Have No Right to Fair Trial
Scalia Claims Guantanamo Detainees Have No Right to Fair Trial
This week, the Supreme Court will hear arguments on whether the special military commissions created by the Bush administration to try Guantanamo detainees violate national and international law, as human rights groups charge.
But Justice Antonin Scalia doesn’t have to wait for arguments — his mind is already made up. Newsweek reports that in a controversial unpublicized March 8 speech, Scalia “dismissed the idea that the detainees have rights under the U.S. Constitution or international conventions.”
“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 needs to follow the law and recuse himself from the case, as he did two years ago in a case involving the Pledge of Allegiance. According to Newsweek, some experts doubt whether recusal is warranted since Scalia “didn’t refer directly to this week’s case.” But the statute governing inappropriate judicial speech — Title 28, Section 455 of the U.S. Code — does not require such a reference. It 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.
The ball is now in Scalia’s court — he alone decides whether he will rule on the case. A Court spokesperson said he had “no comment.”
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“I am an originalist, I am a textualist, but I am not a nut.”
March 26th, 2006 at 1:27 pmAntonin Scalia.
I’m a breath mint! I’m a candy!
CERTS
The evil secular humanists at TP are not in church today!!??
March 26th, 2006 at 1:39 pmScalia opted to not recuse himself from deciding on Dick Cheney’s Energy Task Force case, right after going on a less “injurious” hunting trip with Dick. And the case was decided in Dick’s favor. Care to guess what Scalia’s decision was? MmmmHmmmmm. Real impartial of you, Scalia.
March 26th, 2006 at 1:41 pm#2- You’re a Floor Wax, you’re a Dessert Topping, you’re a Floor Wax AND a Dessert Topping! Onion Head.
March 26th, 2006 at 1:44 pmThis is the second biggest thing about America that pisses me off - give them a fair trial and let them go
Watch this film its very good , we have been shown the film free on TV in the Uk and it was not horrific for these 3 british guys But for the others only my immagination can tell me what it must be like for them banged up for 4 years, tortured till they pass out , now its tragic
the Un wants it shut down, even Tony Blair wants it shut down, Europe wants them to have a fair tril or let go , the world is watching you,
This is pissing me right off
March 26th, 2006 at 1:52 pmScalia crosses the borders of judicial impartiality far too often.
March 26th, 2006 at 1:55 pmOne should also note Scalia’s “captured on the battlefield” line. Of course, it turns out over 80% of the detainees at Guantanamo were not captured on the battlefield. Most of them were turned over to the US by Pakistani intelligence, who arrested them at various locations in Pakistan. Most of them had never been near a battlefield.
March 26th, 2006 at 1:57 pmWe may have to begin protesting judges if he doesn’t recuse himself. Or is he holding every single prisoner guilty of shooting at his son, and what proof does he have?
March 26th, 2006 at 2:02 pmThe invasion and subsequent war was illegal in the first place. Everything about it, every stage from beginning to now, has been in violation of basic international and human rights law.
“The struggle between the two worlds [Fascism and Democracy] can permit no compromises. It’s either Us or Them!”
March 26th, 2006 at 2:09 pmScalito Mussolini
Address, from Palazzo Venezia balcony
October 27, 1930
And they say the Democrats/Liberals are the activist judges.
The only judge I know of that acts that way was a judge in Orange County, CA, whose son was killed by a drunk driver and used to give every drunk driving case the maximum penalty. They finally had to get rid of her, because the OC jail was full of people doing long sentences for drunk driving and there was no room for murders, rapists and thiefs.
March 26th, 2006 at 2:09 pmThere is no war.
March 26th, 2006 at 2:17 pm[…] ThinkProgress provides a brief and damning explanation of why extreme right-wing Justice Antonin Scalia should recuse himself from a case in the next week which deals with Gitmo Detainees. Essentially Scalia has already said that his mind is made up about the case (he believes detainees have no constitutional rights, and do not have the right to a jury trial). Meanwhile, U.S. Code dictates that in any situation where a judge’s ability to take on a case with impartiality is reasonably questioned, it is his responsibility to recuse himself. Or herself. But you know, Scalia ain’t no lady. ThinkProgress lays out facts (and Scalias recent quotes), which you can read here. Sunday March 26th 2006, 1:24 pm by Arlen Parsa Permalink No Comments so far Leave a comment TrackBack URL Leave a comment […]
March 26th, 2006 at 2:22 pmScalia has shown time and again he is an activist judge.
March 26th, 2006 at 2:23 pmThis is like Bush saying he wanted to topple Hussein because he tried to kill his daddy once. If these guys can’t look at the bigger picture and take their experiences out of decision making, they shouldn’t be in their positions.
How is it that SCOTUS nominees can get away with stating they won’t discuss anything that may come before the court during their nomination process, but they can make speeches like this claiming they’ve already made up their mind in the weeks before a landmark case is even argued before them?
These guys are totally out of control.
March 26th, 2006 at 2:23 pm“Most of them had never been near a battlefield. ”
Comment by brooksfoe — March 26, 2006 @ 1:57 pm
And how would you know?
“The invasion and subsequent war was illegal in the first place. Everything about it, every stage from beginning to now, has been in violation of basic international and human rights law.
Comment by Simon Bolivar — March 26, 2006 @ 2:09 pm
Once again unsubstantiated BS. Show us the verdict.
March 26th, 2006 at 2:32 pmIf the lefties in the country hadn’t gone amazingly off the deep end over the righties being in charge lately, this would not be a controversial remark. What he said is just plain, simple common sense. Enemy soldiers captured in a theater of war have ZERO US citizenship rights, and therefore have ZERO rights in our domestic court system. End of story.
And if the “enemy soldier” decides NOT to abide by Geneva Convention rules, by not wearing a uniform, by hiding among civilians, by purposely killing civilians, by purposely bombing hospitals and churches, etc., etc., etc., then even a military tribunal is more than he deserves.
Yet somebody thinks this is a legitimate court case? No, it’s a total waste of time and tax money.
Just my opinion.
March 26th, 2006 at 2:34 pm“This is like Bush saying he wanted to topple Hussein because he tried to kill his daddy once. “Comment by DS — March 26, 2006 @ 2:23 pm
Show us where and when President Bush said this.
March 26th, 2006 at 2:37 pmSo #17 Fred I guess to you then its ok for the Enemies of the US to do the same to our soldiers?
March 26th, 2006 at 2:50 pmV: “People should not be afraid of their Government…. Government should be afraid of it’s people”.
Boy are we a long way away from that goal.
March 26th, 2006 at 2:51 pmFred I will also add that gorilla warfare was first introduced at the time of the American Revolution.
March 26th, 2006 at 2:53 pmOh please stop the partisanship. Ginsburg said flatly she supported Roe before being seated even though she may have to rule on it again.
The left’s hypocrisy on the Courts is amazingly misguided and partisan. This single issue could keep Democrats from taking back the senate because middle American knows how hateful Democrats will behave if they oversee a Bush Supreme Court nominee.
March 26th, 2006 at 2:58 pmKind of an oxymoron to put “Justice†in front of his name isn’t it?
#20- Wait until the draft is reinstated after the Nov. elections.
(BTW- I saw that movie last night- I think I know what my halloween costume will be.)
Fred, Who are we at war with?
March 26th, 2006 at 3:06 pmBush has people rounded up and detained for years without charge, without counsel, and without family contact. He declares them enemy combatants. He determined their status. Over the years, hundreds have been released with no charges. Nothing. We had rounded up ordinary citizens without cause.
March 26th, 2006 at 3:07 pmNow Scalia says none of them deserve a fair trial — is he justice in a kangaroo court? Why would he deprive them of their “day in court” and to know their charges?
Scalia has over and over again proven himself to be biased and his opinoins to have been predetermined. He has failed to recuse himself in some cases where he has had an interest. He is an example of an activist judge — he is re-interpreting laws unilaterally. He is an anti-American justice; justices can be impeached.
Who was the majority when Ginsburg was nominated? Would that be republican?
This republican talking point is well refuted here:
http://mediamatters.org/items/200505260002
If the Shoe Fits I guess drinking kool aid from a shoe is tasty then.
March 26th, 2006 at 3:09 pmSo, then it was/is okay for the North Vietnamese to keep our soldiers indefinitely?
March 26th, 2006 at 3:09 pm#18 troll
March 26th, 2006 at 3:12 pmGoogle it yourself:
9/27/2002 - Bush said at a political fundraiser in Houston, Texas. “After all this is the guy who tried to kill my dad.”
Nice strawman.
Once again, let’s review:
Terrorists blow up hospitols, schools and marketplaces. They are trying to instill fear through the used of guns and bombs. That is why they are called terrorists. Terroists are criminals and deserve nothing but the death penalty.
The insurgents are the ex-Iraqi Republican Gaurd and Special Republican Gaurd, who want Saddam restored as the ruler. They blow up police stations and infrastructure to keep progress from happening. These are soldiers and should be treated as such.
But, the people in Gitmo a neither terrorists or insurgents. Most never did anything. They are suspected of wanting to do something.
Thought police anybody? Anybody see Minority Report?
March 26th, 2006 at 3:14 pmYou’re being dishonest by not including this in his quote
“And if the “enemy soldier†decides NOT to abide by Geneva Convention rules, by not wearing a uniform, by hiding among civilians, by purposely killing civilians, by purposely bombing hospitals and churches, etc., etc., etc., then even a military tribunal is more than he deserves.
Yet somebody thinks this is a legitimate court case? No, it’s a total waste of time and tax money.
Just my opinion. ”
Comment by Fred Farkle — March 26, 2006 @ 2:34 pm
March 26th, 2006 at 3:16 pm“But, the people in Gitmo a neither terrorists or insurgents. Most never did anything.”
Comment by Spudge_Boy — March 26, 2006 @ 3:14 pm
You have proof of this Boy?
March 26th, 2006 at 3:18 pmSilly little troll. That one was covered also. We don’t need to be dishonest. The facts are on our side.
Did you like getting slapped with the ‘Saddam tried to kill my daddy’ quote? I went and got it just for you.
March 26th, 2006 at 3:19 pmDo you have proof they did do something?
What ever happened to innocent until proven guilty, boy.
March 26th, 2006 at 3:20 pmThey were just in their homes playing patty cake with the other children when wammo in came the Pakistani military and arrested them. Can you believe it?
March 26th, 2006 at 3:21 pm“What ever happened to innocent until proven guilty, boy”
Not in war Boy.
March 26th, 2006 at 3:23 pmFred Farkle,
March 26th, 2006 at 3:24 pmThere are too many things still undefined in this Christian war against Islam. And Scalia is not the majority voice for Americans. Rational people know American mideast policy creates terror and this so-called “left” problem is a response to a “PNAC” problem that most people aren’t signing up for. No oil for blood. No gulags for oil. No gulags for Jesus.
They were just in their homes playing patty cake with the other children when wammo in came the Pakistani military and arrested them. Can you believe it?
Comment by troll — March 26, 2006 @ 3:21 pm
Pakistani military? Ha,ha,ha,ha,ha,…you’re killing me. You DO know they’re riddled with “terrorist lovers”, don’t you? Want the link?
This is more addled tripe, but continue, please.
March 26th, 2006 at 3:25 pmwhy don’t we apply that policy to all laws.. let’s assume they’re guilty because they were arrested…
March 26th, 2006 at 3:26 pmThere is not a war.
March 26th, 2006 at 3:26 pmSo, you are saying that the US has the power to declare war and pre-emptively strike another country that is no threat to us and then can round up their citizens and hold them forever, because somebody thinks that they were going to do something wrong?
Is that what I get from you?
It is a simple yes or no question.
Idiot.
March 26th, 2006 at 3:30 pm“The insurgents are the ex-Iraqi Republican Gaurd and Special Republican Gaurd,…”
Comment by Spudge_Boy — March 26, 2006 @ 3:14 pm
ex being operative word here boy.
“The insurgents are the ex-Iraqi Republican Gaurd and Special Republican Gaurd,…”
Comment by Spudge_Boy — March 26, 2006 @ 3:14 pm
You have proof of this boy?
March 26th, 2006 at 3:33 pmGive him a minute Spudge, he has to apply ointment to that raw spot on his monkey ass we just gave him.
March 26th, 2006 at 3:33 pmYou have proof of this boy?
Comment by troll — March 26, 2006 @ 3:33 pm
Coming from a person who Deep Throat’s Bush’s policy decisions (were you so interested in “proof” when you soiled yourself over “weapons of mass destruction”?), that’s hysterical.
Keep’em coming!
March 26th, 2006 at 3:38 pm“So, you are saying that the US has the power to declare war…?” Comment by Spudge_Boy — March 26, 2006 @ 3:30 pm
Yes
“…and pre-emptively strike another country that is no threat to us…” Comment by Spudge_Boy — March 26, 2006 @ 3:30 pm
NO
“…and then can round up their citizens and hold them forever…” Comment by Spudge_Boy — March 26, 2006 @ 3:30 pm
No but lefty hero FDR did this to Japenese American citizens in WWII and you still think he was ok.
March 26th, 2006 at 3:39 pm#12, I agree. There Is No War.
The fact that the Republican wing of the War Party declares war and the Democratic wing of the same Party agrees does not change the fact that There Is No War. There is no enemy to “fight” unless you define the civilians we are killing while trying to save them as the enemy.
March 26th, 2006 at 3:39 pm#43
Troll, both hands on the keyboard, you’re all over the road!
March 26th, 2006 at 3:43 pmThis is widely known, so you can Google it yourself. I will provide linnks to things people may not know, but for things that are just as clear as the sky being blue, nope.
March 26th, 2006 at 3:50 pmWe are here to FREE! you DAMNIT! you Have No RIGHTS!!
March 26th, 2006 at 3:52 pmWhat FDR did to the Japanese during World War II was an outrage and is the same thing Bush is doing, so if you don’t like what FDR did, you should not like what Bush is doing.
By the way, I am not a lefty. I think Bill Clinton did some fucked up shit.
Know thine enemy if you intend to do battle with him.
March 26th, 2006 at 3:52 pmDano
“Other countries of course, bear the same risk. But there’s no doubt his hatred is mainly directed at us after all this is the guy who tried to kill my dad.”
Does not say this is the reason for attacking Irag. Idiot
March 26th, 2006 at 3:52 pmYes, we know and you think Bush never tied 9/11 to Saddam also. The problem is that is not what the rest of the country heard or believes. You are a red marble in a sea of blue marbles. You are insugnificant and irrelevant.
March 26th, 2006 at 3:54 pmOf course, Scalia is also ignoring the fact that most (if not all) of the Guantanamo detainees were not captured on a battlefield – they were rounded up by Afghan warlords to collect large US bounties for turning in terrorists).
March 26th, 2006 at 3:57 pmIf they Disbanded the Million Plus Republican Army Of Saddam and they Dispersed back into the public sector, which they have, then using Scalias Logic the Iraqi People also have no rights?
So Whats the Difference between a Gitmo Iraqi and one that was disbanded from Saddams Army running around Iraq, that many may have voted in the Iraqi elections??
SO According to Scalia the Vietnam POWS should still be in VIETNAM because they also would HAVE NO RIGHTS if SCALIA had been Judge?
WOWOW WOW! thats some sacry Sheeahht
March 26th, 2006 at 3:57 pmNo FDR imprisoned hundreds of thousands of innocent Americans for years and denied them the rights they deserved as US citizens and lefties dont call him fascist.
Bush has imprisoned a few thousand insurgants they are not US citizens nor are they covered by the Geneva convention they can stay there till we are ready to deal with them. Tough crap if you dont like it. You are not in charge and that is not likely to change.
March 26th, 2006 at 4:00 pmYes Afghan also had a bumper crop of opium in 2004.
Yet Blood Cult Chrisitians such as IRI YET are ignorant of their Christian Persian relations;
The Persian civilization spawned four major religions: Zoroastrianism, Mithraism, Manichaeanism, and the Bahá’à Faith. Other religions such as Mazdakism and Manichaenism also arose from ancient Iran, with the former having been dubbed the first communistic ideology, and the latter heavily influencing Saint Augustine; hence, indirectly influencing Christianity: Both religions were sub-branches of Zoroastrianism. Today many scholars while still debating on which religion first introduced monotheism; Zoroastrianism, or Judaism, they, however, have conceded that it was the religion of Zoroastrianism that for the first time introduced angelology, demonology, apocalyptical doctrines, as well as, some eschatological notions to humanity. [13] Such ideas would later be passed on to the Babylonian Jews via the Persian Empire. All of these reflect the dualism of Persian culture which has also significantly influenced Judeo-Christianity and Western civilization. In addition, Persian civilization has affected its neighbors through culture, religion, and language.
Most Persians in Iran are Shia Muslims, while smaller communties of Sunni Muslims, Bahá’Ãs, Christians, Jews, and Zoroastrians remain. There are also Persians who are Atheist and Agnostic.
March 26th, 2006 at 4:00 pmYou are not in charge either. You are a number. You are just a single vote that doesn’t count for shit.
You just keep telling yourself that the Republicans will always be in charge.
March 26th, 2006 at 4:02 pmSo using TROLLs’ logic The Vietnamese Should have kept the POW’s as War Booty? And given them No rights?
Well Im sure THAT Scalia would find that a Horrible thing if his SON were a POW in Vietnam. Why?
Because hes a HYPOCRITE!
And then Troll the Jewish People of the Holocaust also had no Rights? Because it was a WAR?
March 26th, 2006 at 4:07 pmWhy TROLL you have gone Past Anti-Semitic straight to Anti-Humanity
March 26th, 2006 at 4:08 pmIf SADDAM were part and parcel of the 9/11 Attacks, do you honestly think Bush would have Allowed him to go Back to Iraq for some Media Circus Show??
I wonder.
March 26th, 2006 at 4:10 pmScalia has a conflict of interest in that it is certain that his son’s military service is an emotional point for him.
There is no way he can decide such a case and cast aside his son’s ordeals, which are probably very real.
Not all judges who have sons/daughters in the military have a conflict emotionally. Scalia has already made it clear that he does.
THAT IS WHY IT IS IRRELEVENT IF HE WAS REFERRING TO THE PENDING CASE. HE MADE CLEAR HE CANNOT MAKE A DECISION ON ANY SUCH CASE THAT IS NOT INFLUENCED BY HIS EMOTIONS.
March 26th, 2006 at 4:11 pm“Why TROLL you have gone Past Anti-Semitic straight to Anti-Humanity”
Comment by Hamster Brain — March 26, 2006 @ 4:08 pm
The tittle Hamster Brain is appropreate.
March 26th, 2006 at 4:25 pmRainman I know it’s appropriate I know know .
March 26th, 2006 at 4:27 pmSo, after getting completely pummeled to shit, troll has to resort to name calling and nothing else in his posts.
Mission Accomplished!
Another One Bites The Dust!
We Are the Champions!
Chump.
March 26th, 2006 at 4:31 pmshame on america a law unto itself - expect the same treatment from others in future -
March 26th, 2006 at 4:34 pm61 James, good retort, not. Its not the emotions that is being questions its his words.
March 26th, 2006 at 4:38 pmSpudgeMAN, an off thread question: What do you think is the appropriate jail sentence for a person convicted of drunk driving? Repeat offenders?
FYI - Both “sets” in your definition of terrorists and insurgents (foreign fighters or Iraqis) are bent on spreading fear and intimidation. Your “attempt” to differentiate is blurring the lines…]
#31 - “And, in discussing the threat posed by Iraqi President Saddam Hussein, Bush said: “After all, this is the guy who tried to kill my dad.â€
March 26th, 2006 at 4:40 pmComment by Spudge_MAN
SpudgeMAN, I always wondered why the impotent half of our former President Clinton did NOTHING when presented with evidence of Saddam’s plat to kill GHWB…Another fine example of ALL TALK all the time.
Scalia has a conflict of interest in that it is certain that his son’s military service is an emotional point for him.
Scalia should care more for his family and get them out of iraq
Live by the sword die by the sword - not for my children i have more sense
March 26th, 2006 at 4:42 pmWhat do you think is the appropriate jail sentence for a person convicted of drunk driving?
Comment by mighty aphrodite
Allow me to answer that, aphrodite.
Correct me if I’m wrong, but the Republicans make them President. Unless, of course, they get two, then they make them the Vice President. As for Saddam’s plot to kill GHWB. Wasn’t it GHWB who started it by trying to take out Saddam in 1991?
Silly girl.
March 26th, 2006 at 4:48 pmHere’s the deal…We progressives reject that it serves our interests to hold some of these guys for eternity. You can nail down any terrorist charges on more than just hearsay, and we don’t mind continuing to hold ‘em.
But some of these guys posed no danger to us. If they no longer pose a threat to us and don’t have any intel, let ‘em go home. I mean, why keep the poor schmoe any longer than you have to.
Lastly, if we’re going to hold them as captured enemy combatants, then the full force of the Geneva Convention should hold. Why, you bushies ask? Self interest, that’s why. If our boys get caught, I want them to be held to the same Geneva Conventions standards. Just cause some opponents don’t follow them, is no reason to sell our own souls down the river. Didn’t your mama ever tell you “If everybody was jumping off high cliffs, would you do it?”. Well, didn’t she?
That’s my point. We treat them properly because that’s what is right. It’s important to do and be seen as doing the right thing, not only by others, but more importantly, by ourselves.
March 26th, 2006 at 5:00 pmFred I will also add that gorilla warfare was first introduced at the time of the American Revolution.
Comment by theroachman
“Gorilla warfare” does that have something to do with apes fighting, or do you mean “guerilla warfare?
March 26th, 2006 at 5:12 pmJoe “Squirrel” Sixpack - Saddam would have never been under any threat if he had NOT overrun Kuwait. But of course you still can’t answer why that charming moral degenerate, former President Clinton did nothing about a plot on GHWB. I guess squirrels have the retention abilities of goldfish.
kindness - it is very sweet of you to want out captured US troops to be held in humane conditions. Those held at Guantanomo ARE treated humanely. Unfortunately, the barbarians who capture our troops wouldn’t know a Geneva Convention from a Democrat Party Convention. Come to think of it, I can’t think of one group of our prisoners who have been humanely treated since the implementation of the Geneva Convention. Let’s see: Germany - nope, Japan - no way, Korea - nope, Viet Nam - ask John McCain.
March 26th, 2006 at 5:13 pmhi #7. good comment. i would like to add that not only were they not on the battlefield, many of those being held were actually SOLD into bondage by their compatriots. i think the u.s. was paying 500 a head for afghanis.
the words expressed by scalia show a truly disgusting, neoconservative, radical extremist, horse-shit crazy human being….
oh, and fuck bush
March 26th, 2006 at 5:14 pmhi #7, again. one source regarding the selling:
the report which the writer is referring is by study by Seton Hall law professor Mark Denbeaux.
March 26th, 2006 at 5:20 pmsource
March 26th, 2006 at 5:21 pmScalia Speaks Out On Detainee Rights…
In the upcoming issue of Newsweek the question of whether or not Justice Scalia should recuse himself from the upcoming Hamdan vs. Rumsfeld.
March 26th, 2006 at 5:34 pmThe Supreme Court this week will hear arguments in a big case: whether to allow the Bush administration to …
This is a clear case where recusal is necessary. I can’t imagine anybody mounting a serious defense to black recusal after he expressed these thoughts so explicitly. A failure to step aside for this one will create a very black mark indeed for the integrity of our federal judicial system.
- Manshake
March 26th, 2006 at 5:37 pmthen scalia should be impeached for not faithfully upholding the Constitution.
March 26th, 2006 at 5:42 pmAmong some of the more futile and counter-productive things to do right now in the Battle against the Devil (and he’s on the run, the Devil is) is to blindly take the side of detainees…
…whose names, situations, charges, and guilt or innocence, you could not possibly know.
And to do this publicly, before an American Public near blinded with fear of “terror”.
The Devil loves such diversions and distractions as that; you’d almost think he somehow fuels and advances them himself.
The Devil is crafty, to be sure.
March 26th, 2006 at 5:49 pm#66
If you would read the TP post Scalia does, in fact, use his son as a justification for his position. It is an emotional justification and I do not believe the a nonbiased decision can be rendered when a justice is quite emotional about the case.
It is difficult to believe that his internal decision, neglecting whatever legal justifications his clerks draft up, is based on emotions rather than rational analysis.
So I do believe it was a ‘good retort’.
Since you can’t get him to go just on his speech since he addressed a general topic (justices do have very broad power over whether or not to step down) tying the son in is a good idea to get him to step down or at least taint his involvement to a greater degree.
If his son’s occupation is part of his justification he has a CONFLICT OF INTEREST. If he is unable to be impartial based upon his son’s service then I do not see it as any different from standing down for, say, owning stock in a particular company with a pending case.
Scalia ‘owns stock’ in his son’s occupation as he has shown. Since he is emotional about it as well it would seem appropriate that he stand down merely for that. It would not be a correct comparison if he was able to not have an emotional stance over it.
March 26th, 2006 at 5:56 pmGood to see the GOP investment finally paying off. King Guber needs all of the prejudiced help he can get. If lady justice is blindfolded, Scalia’s got his con cheek on her bosom. The SCOTUS investment will bring wingnut’s many happy returns for countless years.
March 26th, 2006 at 6:02 pmIn answer to someone’s question, we know most of them weren’t picked up on the battlefield thanks to public statements by the US Government, the US Army, the Pakistani government, the CIA, etc. etc. etc.
Well, unless you follow the insane “The whole world is our battlefield” logic which the administration seems to apply.
The various chicken farmers who were kidnapped, who were not carrying guns or attacking anyone when they were captured — this is not contested by the government — can’t possibly qualify as “captured on the battlefield”. The government contends that they did all sorts of evil things sometime in the past before they were captured. The government is unwilling to show anyone any evidence of this, however….
Really, would you trust the judgement of Bush and his buddies as to who actually was a danger and who was a case of mistaken identity? Cause I sure as hell wouldn’t.
March 26th, 2006 at 6:15 pm“Those held at Guantanomo ARE treated humanely.”
Delusional, completely delusional. You know why all of Europe wants it shut down? You know why Vladimir Putin of Russia and the people running China criticize it? Because the people there were not treated humanely. This has been confirmed repeatedly by leaks from military members, military lawyers, etc.; and also is confirmed by the repeated refusal of the US government to allow observation by organizations such as the International Red Cross (as is normally allowed in detention camps). Furthermore, we know that one particular commander explicitly ordered inhumane treatment, thanks to military records; the same one who ordered it at Abu Ghraib.
We know that Bush claims that the Geneva Conventions — which demand only basic humane treatment of prisoners — do not apply to the prisoners at Guantanamo. What possible reason could there be for that, now?
March 26th, 2006 at 6:24 pmJoe “Squirrel†Sixpack - Saddam would have never been under any threat if he had NOT overrun Kuwait. But of course you still can’t answer why that charming moral degenerate, former President Clinton did nothing about a plot on GHWB. I guess squirrels have the retention abilities of goldfish.
Comment by mighty aphrodite
Heh, heh. I know you like me, aphrodite. But that “Squirrel” moniker might stick. I mean, suppose the progressives here get the idea that I am some classless degenerate, a real rightwing redneck who lacks any real moral or ethical principles?
Now correct me if I’m wrong, hon, but you really shouldn’t lower yourself to namecalling and trying to bullshit your way through the posts here. I do have a serious question for you, though: what color panties you have on tonight? I’m betting pink, and they are WAY too tight on you.
YEAAAAAAAAAGHHHHHHH!
March 26th, 2006 at 6:24 pm“is to blindly take the side of detainees…
…whose names, situations, charges, and guilt or innocence, you could not possibly know.”
Don’t you see that that’s the whole point? I don’t know. Neither do you. Neither does any competent, impartial judge. We have no reason to believe that the Bush administration knows either, since they won’t show anyone any evidence — if anything the Bush administration seems to be making the case for their innocence, by their refusal to show any evidence of their guilt.
Just put them before an impartial judge and find out whether there’s any real evidence that they were enemy combatants. If there is, fine, keep them locked up! But do you trust Bush to decide on his own say-so? Cause I sure don’t.
The Devil isn’t on the run. One of his agents is in the White House, ordering people to be tortured; people who are quite probably innocent, because he won’t show anyone any evidence of their guilt. Also declaring himself to be the sole judge of what is law (forget Congress or the Courts), while he’s at it. The differences between the Taliban and the Dominionists running the US are frightening small: simply the matter of which holy book they claim gives them the right to murder people.
Amazing how many “Christians” have been fooled by this man’s lies, into supporting him without question. But then that’s only to be expected, I guess. Look up Chuck Baldwin.
March 26th, 2006 at 6:36 pmBut Justice Antonin Scalia doesn’t have to wait for arguments — his mind is already made up. Newsweek reports that in a controversial unpublicized March 8 speech, Scalia “dismissed the idea that the detainees have rights under the U.S. Constitution or international conventions.â€
The losers have the “right” to a military trial if the situation warrants. Frankly my guess is most of them deserve nothing less than to be fed alive to a herd of ravenous pigs. Distribute the film in Iran, Syria and Saudi Arabia as a lesson to potential Jihadies.
March 26th, 2006 at 6:37 pmAmazing how many “Christians†have been fooled by this man’s lies, into supporting him without question. But then that’s only to be expected, I guess. Look up Chuck Baldwin.
Comment by Anon
What’s amazing is how many Leftist Fuctards like you claim to be experts in WWJD. No, I won’t look up Chuck Baldwin.
March 26th, 2006 at 6:39 pmWhat’s amazing is how many Leftist Fuctards like you claim to be experts in WWJD. No, I won’t look up Chuck Baldwin.
Comment by I-RIGHT-I — March 26, 2006 @ 6:39 pm
One thing Jesus would not do:
The losers have the “right†to a military trial if the situation warrants. Frankly my guess is most of them deserve nothing less than to be fed alive to a herd of ravenous pigs. Distribute the film in Iran, Syria and Saudi Arabia as a lesson to potential Jihadies.
Comment by I-RIGHT-I — March 26, 2006 @ 6:37 pm
And it does not take an expert to know this just someone who grew up going to sundat school in this country………
March 26th, 2006 at 6:47 pm#90 You’re hungry IRI?
March 26th, 2006 at 7:03 pm[…] This week, the Supreme Court will hear arguments on whether the special military commissions created by the Bush administration to try Guantanamo detainees violate national and international law […]
March 26th, 2006 at 7:04 pmAnd it does not take an expert to know this just someone who grew up going to sundat school in this country………
Comment by Clif
Well…you got me there Clif, He will not feed the losers to pigs. He WILL feed the losers to vultures and assorted preditory birds though. I guess you haven’t read that far into the book yet. If there’s anything else you want to know just ax.
March 26th, 2006 at 7:10 pmfat tony should be impeached….right after the bushliar-criminal.
March 26th, 2006 at 7:12 pm.
Indict Vice President Cheney. Put him under oath.
Comment by plunger
You first Neo.
March 26th, 2006 at 7:38 pmFunny how Scalia, Bush, etc. on the right repeatedly refer to the Iraq occupation as “war”, such as: “war is war” or “we are a nation at war”, etc. But still the Bush administration refuses to give the detainees POW status and Geneva Convention protections as should be the case during a time of war. As usual they try to have it both ways. One can only assume that they enjoy the killing and torturing.
March 26th, 2006 at 7:42 pmAnd we get our first daily dosage of racism from our resident KKK member, I-RIGHT-I.
March 26th, 2006 at 7:51 pm#87 - “You know why all of Europe wants it shut down? You know why Vladimir Putin of Russia and the people running China criticize it?” –Anon
*****Europe, who stood by and watched while Jews, Gypsies, Slavs, the phyisically and mentally retarded and homosexuals were lined up for extermination??? Russia AND China - who wouldn’t know a human right if it bit them in the a$$???? hahahah…
They have no right to a military trial - did you see their uniforms - I didn’t think so.
Joe “Squirrel” Sixpack - That name is with you as long as I deem fir to respond to your stupidity. But I did note that you were manly - as long as one was comparing you to a “neutered squirrel”. If you like, I’ll start adding neuteredto your nick name….
March 26th, 2006 at 8:02 pmLiberal are wrong.
Geneva requires all of four specific criteria be met for for legal combatant status, and al Qeida meets none of them. Hence, al Qeida members do not get protection under Geneva. Moreover, even if al Qeida members were legal combatants, Geneva doesn’t require a trial for them!
Liberals are wrong, uninformed, and misinformed on this issue.
March 26th, 2006 at 8:09 pmUmmm, mighty aphrodite,
What does Russia and China’s stance on human rights have to do with how many troops they have in their military. If they wanted to attack us together, we would be fucked. It isn’t about the left or the right “liking” the Russians or Chinese. It has to do with who would win in a world war. The US cannot continue to pick fights world wide, when we don’t have the military force to fight world wide. The number of allies we have is on a downslide. That needs to be corrected. It isn’t about “we don’t need X country” Sometimes it isn’t about winning, sometimes it is about what is best for our country.
March 26th, 2006 at 8:12 pmdear #102
au contraire–i love using french with neocons–if you ever get a chance, read up your international humanitarian law; rather than listening to fox, if you would read from time-to-time, it might make your arguments more compelling.
here is a link to an amicus brief arguing why the geneva convention DOES apply.
have a nice day!
oh, and fuck bush
March 26th, 2006 at 8:35 pm#102 - Jeff,
Speaking as a veteran, allow me to say the following as an unnoficial spokesman for every man and woman who dons a uniform to protect your freedoms:
FUCK YOU!!!!
I have a I on the back of my military ID in the box marked “Geneva Conv Category”. This means that should I be captured on the battlefield, I must be designated as an “enemy combatant” (sounds familiar doesn’t it?) and held under full protection of the Geneva Conventions. The sad reality that you immoral assholes don’t realize is that we have troops all over the world in harms way. We need to grant the same protections to our prisoners that we would want our own soldiers, sailors, airmen, and marines to receive should they be in the same situation. Not only is it the only moral course of action, it’s just plain good policy! How can you fools not realize that every person that we hold indefinitly in cruel and inhumane conditions has family members that will now be predisposed to hate Americans. The egregious errors in judgement our government have made in the execution of this police action around the world have created FAR more terrorists (or future terrorists) than we will ever be able to kill and will, probably, cost American lives and some point down the road. Why are all right-wingers so fucking short-sighted?
March 26th, 2006 at 9:15 pmYou just assume that all of these Arab Gitmo detainees are al Qaeda terrorists? A little racist are you?
March 26th, 2006 at 9:16 pmgreen917,
Well said.
March 26th, 2006 at 9:18 pm[…] The comments caused quite an uproar, especially on the left, with many stating the case for recusal. […]
March 26th, 2006 at 9:25 pmSpudge,
Thanks! This happens to be something that I am rather passionate about. Too many relatives who spent time in VC camps during Vietnam and FAR too many friends still wearing a flag on their sleave to feel any other way about it. It boggles my mind that these idiots can yap and yap and yap about policies that go against everything that we as a nation, and as a people, stand for and not see what the ramifications will be. They can’t really be that self-serving and egoistic, can they? Don’t answer that! Alas, I already know the answer and it makes me feel sorrow for the state of my country.
March 26th, 2006 at 9:25 pmJustice Scalia must either resign from the Supreme Court or according to our Constitution he can be impeached for willfull violation of not upholding federal laws and not following the protocols of the Geneva Conventions! I doubt that his son was in any position of danger in Iraq and since he knows Cheney personally he could have his son out of harms way with one phone call to the White House! Everyone is entitled to judicial rights, and GITMO is run like a Nazi Concentration Camp, so shame on Scalia!
March 26th, 2006 at 9:30 pm#53: No FDR imprisoned hundreds of thousands of innocent Americans for years and denied them the rights they deserved as US citizens and lefties dont call him fascist.
Comment by Troll
About 120,000 Japanese-Americans were interned during World War II; years later a formal apology and compensation were issued to them.
March 26th, 2006 at 9:36 pmInterning Japanese-Americans just because of their racial background was undoubtedly one of FDR’s worst mistakes–perhaps the worst. But I don’t know any liberal/progressive who have defended it. On the other hand, conservative pundit Michelle Malkin, herself of Asian (Philippino) background, wrote an entire book defending the racial profiling of Japanese-Americans during WWII. One of the trolls here defended it, too, not so long ago.
Anyway, what are you trying to say: that it’s okay for Bush to do that because something similar happened during WWII? And, by the way, the internment of Japanese-Americans, though very unjust, was not brutal like the treatment of prisoners in Gitmo, etc.
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land …. ” United States Constitution, Article VI.
Yet how easy it is to suspend the Constitution and Treaties protecting basic human rights when we are at wa:. Adams with the Sedition act; Lincoln, suspending habeas corpus; FDR and the japanese internment camps. Fortunately we regained our sanity after each of those episodes. Why, then do we repeat these offenses?
March 26th, 2006 at 9:57 pmThis is judicial misconduct, and grounds for impeachment.
I think it’s time we gave serious thought to a drive to do exactly that.
March 26th, 2006 at 10:17 pm#18 - troll,
March 26th, 2006 at 10:23 pmTry this:
http://mywebpages.comcast.net/ j.h.kinsey/ The%20Times.LeCarre.htm
I’m still trying to find this in W’s 2000 campaign statements. It’s there as well..
I am saying the actions of FDR were far worse than those of President Bush and yet the left seems to give him a pass. While President Bush is labeled a Nazi Fascist for what most reasonable people would consider much less objectional actions. I might find the positions of the left more palatable if they were more consistant.
March 26th, 2006 at 10:39 pm“And, by the way, the internment of Japanese-Americans, though very unjust, was not brutal like the treatment of prisoners in Gitmo, etc. ”
Comment by Lora — March 26, 2006 @ 9:36 pm
Lora I will be kind and argue that overall FDRs victims would beg to differ.
March 26th, 2006 at 10:43 pmLora I will be kind and argue that overall FDRs victims would beg to differ.
Comment by troll —
Have you ever met or spoken with any Japanese-Ameriicans interned during WWII? I have. And do you know any liberal/progressive who defends such treatment of Japanese-Americans like conservative darling Michelle Malkin?
March 26th, 2006 at 11:08 pm“And then Troll the Jewish People of the Holocaust also had no Rights? Because it was a WAR?
Comment by Hamster Brain — March 26, 2006 @ 4:07 pm
What a ridiculous statement. This is apples and oranges you rodent. I never said the detainees had no rights. The only way you Morons can win a debate is to make shit up. Have you been hanging with RAINMAN or are you one in the same?
March 26th, 2006 at 11:10 pmtroll > Whatever wrongs FDR did were years ago and he is long dead! Bush is the current president and he is committing offenses against our Bill of Rights, and the Constitution, so that is why we want him to resign or be impeached!
March 26th, 2006 at 11:12 pmNo Lora but i have read quite a lot on the subject. Who is Michelle Malkin? She sounds alot like liberal/progressive darling Louis FariCON.
March 26th, 2006 at 11:16 pmRandal libs are glad to throw around the name of FDR when it suits them no matter how long ago it was. My point is to demonstrate not only the libs hypocrisy but that when you fight a war some things have to be done which we under normal conditions would not do. What has President Bush or the US to gain from holding innocent people? It has been an enormous political liability. It seems to me those most concerned are simply ideologues taking advantage of an Achilles heal.
March 26th, 2006 at 11:29 pmWaltTheMan,
I gave a troll a link to the ‘He tried to kill my dad’ quote in post 19. No need to search any harder.
It is a CNN quote from when Bush was on stumping for war in Iraq on Septemer 27, 2002
CNN
March 26th, 2006 at 11:35 pmSeptember 27, 2002
Bush calls Saddam ‘the guy who tried to kill my dad’
#120 - troll
The detainees are either “enemy combatants” or they’re not! You can’t have it both ways.
If they are, in fact, “enemy combatants” then they must be afforded FULL protection of the Geneva Conventions. If they don’t qualify under Geneva, then they must be classified as a “non-enemy combatant” (meaning that they do not belong to an army or organized militia) at which point, their detention is no longer a military matter but a criminal one and, by our own laws, they must be afforded council and a trial. President Bush and his minions have tried to play both sides to the middle of every single aspect of the execution of this police action (including calling it a war) in order to further their greed and hubristic view of American hegemony. Every imperial army in history has eventually learned a painfull lesson that we, obviously, have yet to learn: If you mistreat your enemies (particularly when they are held captive), it will ALWAYS come back to bite you in the ass eventually. The Zhou learned it after persecuting the Shang, the Romans learned it in Brittany and elsewhere (the goths of Germania got really fed up and eventually sacked Rome), the British learned it in Afghanistan, Iraq and elsewhere and yet, some of us don’t seem to get it. This is all on top of the fact that mistreatment of detainees/prisoners never provides actionable/viable intelligence. In the immortal words of Nice Guy Eddie, “If you beat him enough, he’ll tell you that he started the Chicago fire.”
March 26th, 2006 at 11:42 pmWow the Moron-A-trolls are out tonight. Their dream come true has crumbled. Even major Neocons have said Bushco is a diaster. But, the Fu*ktard moron-A-trolls will never get it. Nothing but roaches and vermon. Each day more and more people and getting it, Bushco is the worst preznit in all of American history and IRI wants to lick his balls.
March 26th, 2006 at 11:59 pmWho is Michelle Malkin? She sounds alot like liberal/progressive darling Louis FariCON.
……….Achilles heal.
Comments by troll —
Why don’t you look up Michelle Malkin on google? She writes, among other things, for townhall.com, which also hosts other well-known (well, maybe not to you) conservative pundits like Ann-thrax Coulter, Linda Chavez, Robert Novak, etc. And she wrote an entire book defending the internment of Japanese-Americans during WWII.
March 27th, 2006 at 12:04 amIn all your so-called reading about the internment of Japanese-Americans, did you read about torture methods such as water-boarding being practiced at the camps? And anyway, the point of this website is “thinkprogress”–not to slip back into unfair treatment of people just because it happened under a president who has been dead for over 60 years.
Incidentally, “heal” means “to cure.” If your’re talking about a part of Achilles’, or your own foot, the word is spelled “heel.”
Green,
They can bring suite but from my understanding they have no right to have council provided. So they obviously have limited rights but not the full rights afforded a US citizen or of a person caught in the US.
Joe
You kiss your mother with that mouth?
March 27th, 2006 at 12:24 amLora
Thanks for the correction the font is quite small and I miss some errors in my editing.
I have no interest in Michelle Malkin and your question “…did you read about torture methods such as water-boarding being practiced at the camps?” misses the point. Finally how can we have “progress” if we cant have civilized dialogue where participants actually listen to their opponents arguements so consensus can be reached?
March 27th, 2006 at 12:35 am#127 - Show me where it says that one must be an American citizen to have the right to a speedy trial or council?
March 27th, 2006 at 12:44 amI think they fall into the enemy combatant catagory as far as the Constitution is concerned but are not covered by the Geneva convention. There does seem to be gray area there and that is precisely what the court is to decide.
March 27th, 2006 at 12:58 amyour question “…did you read about torture methods such as water-boarding being practiced at the camps?†misses the point. Finally how can we have “progress†if we cant have civilized dialogue where participants actually listen to their opponents arguements so consensus can be reached?
Comment by troll
My question about waterboarding doesn’t miss the point. I earlier wrote that the internment of Japanese-Americans, though reprehensible, was not as brutal as what is going on at Gitmo, etc. You begged to differ but have, thus far, provided no proof of comparably brutal treatment of the Japanese-Americans. I also pointed out that it is conservatives like Michelle Malkin –not any prominent liberal/progressive–who have defended the racial profiling of Japanese-Americans during WWII. You have provided no contrary cases.
March 27th, 2006 at 1:06 amFinally, I can not understand how your question, “Finally how can we have “progress†if we cant(sic) have civilized dialogue where participants actually listen to their opponents (sic–an apostrophe is needed) arguements(sic) so consensus can be reached?,” works in as a defense of what the Bush administration has been doing to detainees at Gitmo, etc.
Japanese American detainees where shot and killed for resisting why dont you google it and learn for yourself.
Yes should the SCOTUS determine that they should be tried and afforded certain rights I would accept that but if its a legitimate question should libs be accusing the President of the United States of being a nazi? Its disingenuous and shameful.
March 27th, 2006 at 1:24 amI think they fall into the enemy combatant catagory as far as the Constitution is concerned but are not covered by the Geneva convention. There does seem to be gray area there and that is precisely what the court is to decide.
Comment by troll — March 27, 2006 @ 12:58 am
As I said to you before; two hands on the keyboard, you’re all over the road.
March 27th, 2006 at 1:33 amRainman how are you? Typical non sense but thats ok. Being murdered or shot does not count as torture?
MORON
March 27th, 2006 at 1:36 amJapanese American detainees where shot and killed for resisting why dont you google it and learn for yourself.
Comment by troll — March 27, 2006 @ 1:24 am
And made to lay in their own feces? Or made to masturbate each other? How about chained naked to the floor? Anal glowsticking?
March 27th, 2006 at 1:37 amRyan, now he’s descending into conservative parody.
March 27th, 2006 at 1:38 amNo, Scalia, you don’t “[get] a break”. You’ve got nothing but breaks up to this point. You’re an irresponsible and corrupted man who dares to call himself a justice. You don’t need to recuse yourself; you need to resign.
March 27th, 2006 at 1:42 am” And made to lay in their own feces? Or made to masturbate each other? How about chained naked to the floor? Anal glowsticking? ”
Comment by dano347 — March 27, 2006 @ 1:37 am
I dont care what you and Rainman did last night
March 27th, 2006 at 1:45 am#130 - Troll
Per Article IV of the Geneva Conventions, most of them actually fall into the “prisoner of war” category:
I could go on and on and on. As I said in my earlier post, per the Geneva Conventions themselves, if they fall into the “enemy combatant” category they are entitled to ALL of the rights afforded by the Geneva Conventions. You can’t have it both ways! Not to mention the crux of my earlier argument. It’s just good policy to ALWAYS abide by the Geneva Conventions regardless of the semantics.
March 27th, 2006 at 1:46 amBYE
Rule #1 dont argue with an idiot and you fit the mold so see ya.
March 27th, 2006 at 1:47 amAnother day another pussy troll.
March 27th, 2006 at 1:48 am“I dont care what you and Rainman did last night”
Comment by troll — March 27, 2006 @ 1:45 am
Way to refute that argument, I’m awed by your rhetorical expertise!
P-U-S-S-Y.
March 27th, 2006 at 1:52 amWell, gotta’ go myself, but I leave you with a few words from Roman historian Tacitus:
Augustus won over the soldiers with gifts, the populace with cheap corn, and all men with the sweets of repose, and so grew greater by degrees, while he concentrated in himself the functions of the Senate, the magistrates, and the laws. He was wholly unopposed, for the boldest spirits had fallen in battle, or in the proscription, while the remaining nobles, the readier they were to be slaves, were raised the higher by wealth and promotion, so that, aggrandised by revolution, they preferred the safety of the present to the dangerous past. Nor did the provinces dislike that condition of affairs, for they distrusted the government of the Senate and the people, because of the rivalries between the leading men and the rapacity of the officials, while the protection of the laws was unavailing, as they were continually deranged by violence, intrigue, and finally by corruption.
March 27th, 2006 at 2:13 am#149 - Ryan,
And (S)He is a fucking coward to boot! It must really suck to have to flee everytime you’re losing an argument.
March 27th, 2006 at 2:47 amJapanese American detainees where(sic) shot and killed for resisting why dont you google it and learn for yourself.
Comment by troll
Troll,
March 27th, 2006 at 4:42 amYou have brought up the exceptional case of Japanese-Americans who tried to escape. Do you have any information that the ones who stayed in the camps were water-boarded, strung up by the ankles and left dangling for hours, had lit cigarettes or blow torches brought near their genitals, etc.? I have talked to survivors of the internment camps and helped to edit the memoirs of one. While the man who wrote his memoirs was bitter about the racial slurs, etc. he endured, he never mentioned torture.
As for yourself, we all make typos and experience stuck keys; however from what I’ve seen of your postings, your errors clearly go beyond that. Why don’t you learn to spell (or at least use a spell check) and use punctuation (such as using question marks after sentences that are clearly questions)?
#149- Ryan, I have been thinking the same thing. And it may just be my imagination, but I think “Sybil” has 3 identities. From #90-98, IRI, #101, MA, (one comment) and #117-144, Troll. Their style of writting bears many similarities. A “he”, a “she”, and an “it”. The Trifecta.
March 27th, 2006 at 5:59 amEd Whelan does make an excellent legal argument over at Bench Memos. However, I think analyzing this issue in terms of legal procedure is incomplete. We must look to politics.
Chiefly, Who is Scalia addressing? Obivously, at the lowest level of generality, he was replying to a question posed; thus, he was addressing the poser of the question. At a higher level of generality — one that takes politics into account, Scalia is mobilizing conservatives (e.g., Ed Whelan and his audience, Rush Limbaugh and his audience) by making provocative statements that the AP will most probably air. Because he makes what is a convincing argument if true — the Court has NEVER done XYZ, it automatically puts conservatives on notice that if the Court does XYZ, then the Court is deserving of criticism.
An obvious rejoinder is that Hamdan, as a case, was likely to garner extraordinary attention and criticism in any event; but this rejoinder is too general. The relevant theory is that Scalia cares about the kind of criticism to which the Court is exposed and cares about the the size of the audience that pays attention, because the effect of his statement (from which one could try to induce his motive) is to influence the internal dynamics of the Court. Why?
Let’s see. Roberts is recusing himself, and there is the possibility of a 4-4. Alito has been confirmed as a “conservative” jurist, but has yet to take a position on the War on Terror as a Supreme Court Justice. The stakes are high for Alito’s reputation within the conservative community — “Don’t become a Kennedy” — and this only serves to raise the stakes. In other words, a decisive win is needed, a persuadable vote could be on the fence, and a likely vote is out of play.
But Alito is not enough. Scalia needs to force the hand of those who seek to keep Court opinions consistent with public opinion and those who hope to steer the Court onto a path on the right side of history. One need only scroll down on http://www.orinkerr.com to see a post on Breyer commenting about O’Connor, and one only need look to Kennedy’s majority opinions in Gonzalez v. Oregon, Roper v. Simmons, and Lawrence v. Texas to note that there are Justices who care about international opinion, national opinion, and public opinion in general, because they believe it links the Court’s jurisprudence to public legitimacy. The line that Scalia is drawing here by making a provocative statement from Switzerland, much as John Kerry did from Davos, Switzerland in calling for Alito’s filibuster (I will not quote Hegel here, but I think the farce came first in this context), is that the elites of the United States and the elites of Europe have different mass bases before which they must appear legitimate. A Supreme Court opinion that is consistent with what elites in Switzerland think and inconsistent with what the mass of Americans think would appear an illegitimate opinion: Scalia is actively promoting the likelihood that those interested in legitimacy vote his way by stirring up opposition to an outcome inconsistent with what American public opinion will be after it is shaped by his comment that the Court NEVER DOES XYZ (and the implicit: a. the Court never does XYZ for categorically good reasons; and b. thus, the Court should not do XYZ in the case of Hamdan). In other words, this is not just a push on Alito, but also a push on Breyer and Kennedy to separate from Stevens, who thinks Rasul was a wonderful day in the park, rather than a departure from bedrock American principles. If you think about it, that’s 5 votes: assuming Scalia and Thomas will vote how Scalia suggests he might, Alito, Breyer, and Kennedy are the other “gettable” votes for Scalia in the absence of Roberts. (Note: This analysis is not a slight against Thomas; Thomas is more conservative than Scalia.)
So, what is Scalia doing? Trying to cobble together a 5-3 in the absence of Roberts! Is that a reason for him to recuse himself? Well, he was just giving a personal response to a question asked at a conference. The newspapers didn’t have to report it. And we can’t really prove what Scalia’s motives were, only speculate as to what they likely were given the foreseeability of their impact on public opinion, if covered by the press. That doesn’t sound like evidence of pre-judging a case to me; at worst, it sounds like advocacy. But is it really advocacy? Scalia is not responsible for MSNBC having reported on these statements (with a picture in which he looks dastardly) 6 times in the past hour (and it isn’t even 6 a.m. yet!). Scalia is likewise not responsible for Newsweek choosing to run its article prior to the oral arguments in Hamdan as opposed to afterward (e.g., after the decision is handed down). And given that this is what Scalia might have said during conference with the other Justices in any event (i.e., he would have aired these views prior to the decision being issued), what, really, is the problem? It begins to seem like the news media is trying to create a clamor for recusal because that will sell more magazines and advertising time on cable news.
Waitasecond: corporations interested in selling stuff and a Supreme Court Justice (a member of the political elite) having an opinion that a signifigant number of Americans find controversial…hmm, this doesn’t really sound as provocative or as novel as I thought when I began writing it.
March 27th, 2006 at 6:10 amJessica Alba are you pulling a Ben Domenech? Isn’t your whole post lifted from this?http://www.scotusblog.com/movabletype/archives/2006/03/justice_scalia.html under the name of commentator.@ 05:58 Thanks for