Help! IANAL (Scalia And Hamdan Edition)

by hilzoy

When I talk about the law here on ObWi, I tend to try to restrict myself to construing bits of text and applying them in fairly straightforward ways. I can do that. But mastering reams of case law, legal niceties, and all that: above my pay grade. (Literally as well as metaphorically.) So while I would have thought, offhand, that this is not appropriate for a judge who has yet to hear the arguments in a case, I don't know enough to be sure:

"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." 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."

The comments provoked "quite an uproar," said Samantha Besson, a member of the Freiburg law faculty who had invited Scalia to give his talk, which was mostly about his "originalist" interpretation of the Constitution. This isn't the first time Scalia has commented on matters before the court: two years ago he recused himself from a Pledge of Allegiance case after making public comments about the matter. "This is clearly grounds for recusal," said Michael Ratner of the Center for Constitutional Rights, a human-rights group that has filed a brief in behalf of the Gitmo detainees. "I can't recall an instance where I've heard a judge speak so openly about a case that's in front of him—without hearing the arguments." Other experts said it was a closer call. Scalia didn't refer directly to this week's case, Hamdan v. Rumsfeld, though issues at stake hinge in part on whether the detainees deserve legal protections that make the military tribunals unfair."

That's the great thing about blogging, though: when I don't know something like this, I can just ask. So: can anyone tell me what the actual rules, as opposed to my tingling Spidey-sense, say about something like this?

Comments

[Katherine]

Marty Lederman seems to agree with your spidey sense though he doesn't quite come out and say it.

Scalia recently recused himself from that Pledge of Allegiance case based on a speech he had made. According to an article describing that decision:

Like all federal judges, the justices are subject to a federal ethics law -- 28 U.S.C. § 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.

The parties can file a petition requesting recusal but then it's basically up to the judge. I doubt he will recuse himself in this case regardless of the merits, because it could very easily change the outcome.

Roberts has already recused himself, so right now it's an eight person court. I believe if they split 4-4 the lower court decision stands. Whereas if Scalia recused himself and made it 4-3, Hamdan wins. In other words, Hamdan's lawyers would only have to convince Ginsburg, Souter, Stevens, and Breyer; they don't also need Justice Kennedy.

Hamdan was already a pretty high stakes case, and the Graham Amendment/Detainee Treatment Act raised the stakes further--this will be the Supreme Court's first decision on whether there's still jurisdiction over the pending Guantanamo habeas petitions.

[CharleyCarp]

The statute you are looking for is http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=28&sec=455>28 USC 455. the opening paragraph is pretty clear:

Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

That's paragraph (a). Paragraph (b) specifies a number of additional grounds for disqualification.

You might find Mr. Justice Scalia's http://a257.g.akamaitech.net/7/257/2422/18nov20041145/www.supremecourtus.gov/opinions/03pdf/03-475scalia.pdf>opinion (pdf) about duck hunting with the Vice President instructive. I started to look for his October 14 recusal in Newdow, but have to do something else today. I don't remember if he issued an opinion, but if so, it shouldn't be hard to find.

[CharleyCarp]

Obviously, I should make better use of preview.

Katherine's point shows why it was important to have asked for the retroactive recusal of then-Judge Roberts from Hamdan in the Circuit. If the Sup Ct splits 4-4, and if you remove Judge Roberts from the Circuit panel, you end up with the circuit splitting 1-1 on the question of whether the Geneva Conventions apply to alleged members of AQ. Which leaves the answer from the district court -- yes -- as the controlling law.

I just took a look at the Newdow docket, and the Supreme Court's order list for October 14, 2003. Neither indicate a written opinion. The latter shows that cert was granted, and that Scalia did not take part.

[hilzoy]

CharleyCarp: thanks. That clarifies things.

On reflection, it would probably make things difficult if Scalia were to resign, in light of this decision and its new standard for ascertaining original intent:

"In light of this criticism, the Court today announces a new clear standard to guide lower courts in their application of the commerce clause. This new standard will govern when a law exceeds Congress’s power under the commerce clause and when it does not. The new standard is this – a law passed pursuant to the commerce clause is constitutional if Justice Scalia likes the law and unconstitutional if he does not. Similarly, if the law is regulating things that Justice Scalia wants regulated, it is constitutional. If it does not, it is not.

A

In justifying any new constitutional doctrine, we must first of course look to the original understanding of the Holy Framers who ascended Mount Sinai and brought back down the Constitution on stone tablets in 1787. A close look at the ratification debates reveals that the scope of the commerce clause was intended to be equal to, and co-extensive with, Justice Scalia’s political preferences. Here is James Madison in Federalist No. 10:

"AMONG the numerous advantages promised by a well constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice. He will not fail, therefore, to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure for it."

While at first glance this appears to have nothing to do with the commerce clause, if you switch around some of the letters, it spells: Do What Scalia Wants. See, e.g., Hamburgler v. Burger King, 521 U.S. 321, 341-42 (2003) (Thomas, J., concurring) (“As Harry Potter has taught us, mixing around letters can reveal important insights into the Framers’ original understanding and Lord Voldemort’s evil plans.”)."

[hilzoy]

Make that: if Scalia were to recuse himself. 'Resign' was probably a Freudian slip.

[Katherine]

Charley knows a lot more about this stuff than I do, but for whatever it's worth, this is from the Code of Conduct for U.S. Judges, Canon 3:

(6) A judge should avoid public comment on the merits of a pending or impending action, requiring similar restraint by court personnel subject to the judge's direction and control. This proscription does not extend to public statements made in the course of the judge's official duties, to the explanation of court procedures, or to a scholarly presentation made for purposes of legal education.

This isn't directly about recusal, it's just a general lists of dos and don'ts for federal judges.

The Pledge case was not pending before the Supreme Court when Scalia made the speech, though everyone pretty much knew it would be soon. In contrast to this, oral arguments in Hamdan are on Tuesday. But Scalia's remarks on the pledge of allegiance were in a speech to the Knights of Columbus, while this was to a University. I suppose you could argue it was a "scholarly presentation made for purposes of legal education." I don't so much buy it, though.

When you juxtapose this speech with Roberts' and Alito's complete refusal to give a straight answer about executive power questions during their hearings--the contrast is really, really, really annoying.

[hilzoy]

Yep -- it would be pretty hard to argue that he didn't know Hamdan was coming up on March 8.

And yes, the contrast is incredibly annoying. I wish we could just have one nice clear standard, she said, wistfully, for the millionth time...

[Jay S]

Is there an accurate summary of the issues before the supreme court from the lower court and the appeals court? Googoling Hamdan gives PDF's that seem to reflect the lower court and appeal's court decisions, but I find them a tough slog. The news reports are so general that it is hard to know what is being argued.

Although Scalia's statements seem to close off his being open to any arguments in this case, so it may be moot for this discussion.

[bob mcmanus]

"...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 do not quite understand this statement, it doesn't seem to me to answer the question asked. Can anyone do better? Does "that" refer to Gitmo or the battlefield? Was Hamdan captured on a battlefield? Does Scalia care about such details?

[CharleyCarp]

Jay S, here are the Questions presented from the cert petition:

1. Whether the military commission established by the President to try petitioner and others similarly situated for alleged war crimes in the “war on terror” is duly authorized under Congress's Authorization for the Use of Military Force (AUMF), Pub. L. No. 10740, 115 Stat. 224; the Uniform Code of Military Justice (UCMJ); or the inherent powers of the President?

2. Whether petitioner and others similarly situated can obtain judicial enforcement from an Article III court of rights protected under the 1949 Geneva Convention in an action for a writ of habeas corpus challenging the legality of their detention by the Executive branch?

I don't think the Court limited it's grant of the petition to only one question, but you can see easily enough from the order granting cert.

Bob, I'm not sure where and how Hamdan was apprehended. I wouldn't be surprised if the answer is Afghanistan, though. He's alleged to have had a much closer connection to UBL than the run of the mill Gitmo prisoner -- Salim Hamdan is said to have been his driver -- and this is why he's designated for trial. That is, he's one of the 10 out of 500 or so prisoners who would get a trial -- a selection not made because there is doubt on the part of the government about whether he's an enemy, but because they think they can make a case. On the law, it may be a tough case for the government: can you really accuse the driver of conspiracy because he loaded stuff (even including weapons) into the trunk of the car? Doing a job for a salary?

I've never understood why the government wanted to go to the mat on this guy, but I guess he's about all they've really got . . .

[Jay S]

"Was Hamdan captured on a battlefield?"
The results of the first trial indicate that it may not be in dispute. They don't address the battle field specifically as near as I can tell. They mearly say that he was "apprehended in Afganistan" and that he was "detained by the American military" and these facts were not in dispute. See page 1 and the last paragraph of page 5 of the opinion.

[CharleyCarp]

I looked it up -- he was captured in Afghanistan.

I've been told that all of Salim Hamdan's alleged war crimes took place before September 11, 2001, and did not (I'm pretty sure) include the attack of that date.

Don't google for Hamdan stuff. Go http://www.hamdanvrumsfeld.com/briefs>here.

[CharleyCarp]

Jay S, you've linked the district court opinion denying the government's motion to dismiss Hamdan's petition -- and correctly so, because Hamdan hasn't yet had a trial. The government appealed the failure to dismiss the petition, won, and Hamdan is challenging that decision. That's where it stands.

Here's what he's http://www.defenselink.mil/news/Jul2004/d20040714hcc.pdf>charged with.

[Pinko Punko]

I just like the irony of any argument in Scalia's favor is an argument against Alito/Roberts/anyone having a leg to stand on in not answering questions at their confirmation hearings.

[dutchmarbel]

From the NY Times of August 1, 2005:

Among the striking statements in the prosecutors’ messages was an assertion by one that the chief prosecutor had told his subordinates that the members of the military commission that would try the first four defendants would be “handpicked” to ensure that all would be convicted.

The same officer, Capt. John Carr of the Air Force, also said in his message that he had been told that any exculpatory evidence – information that could help the detainees mount a defense in their cases – would probably exist only in the 10 percent of documents being withheld by the Central Intelligence Agency for security reasons.

Captain Carr’s e-mail message also said that some evidence that at least one of the four defendants had been brutalized had been lost and that other evidence on the same issue had been withheld. The March 15, 2004, message was addressed to Col. Frederick L. Borch, the chief prosecutor who was the object of much of Captain Carr’s criticism.

The second officer, Maj. Robert Preston, also of the Air Force, said in a March 11, 2004, message to another senior officer in the prosecutor’s office that he could not in good conscience write a legal motion saying the proceedings would be “full and fair” when he knew they would not.

[Jay S]

CharleyCarp,

Thank's for the info and the correction of the use of the term "trial". IANAL, obviously. I wouldn't want to add misinformation to the mix.

[Katherine]

What "laws of war" is Hamdan charged with violating? I mean, I've seen the charge sheet, but what statute or treaty? Or is it based on customary international law?

[liberaljaponicus]

I always thought the Scalia flag case recusal was a ploy so he could maintain his position with the base of the right (who would know that he had his heart in the right place) but not totally alienate his colleagues, which is complete mind reading, so I'll wait till Scalia visits here before I retract it.

Are we seeing the same behavior here? Or, unlike the flag recusal, are the stakes too high?

Oh, did you realize that IANAL? thought so.

[kenB]

Can someone explain the reasoning behind the instruction that judges shouldn't publicly discuss cases that may or will be coming before them? Is it just to avoid the appearance of partiality or pre-judgment? Because if a judge is going into a case with such an attitude, offhand I think I'd prefer to know about it.

[Steve]

If Scalia doesn't recuse himself in this case, it's going to be very hard for the next Supreme Court nominee to claim he can't answer questions about issues that might come before him...

[M. Scott Eiland]

Hmmm. So, Brennan and Marshall made it clear in their (dissenting) opinions for years that no death penalty statute would pass muster with them--and yet neither of them ever recused themselves in later death penalty cases--and I'm supposed to be outraged that Scalia might rule on a matter that he's expressed an opinion about? Funny, but I've come to the conclusion that the left is addicted to the notion of obtaining through one-sided application of ethical rules what they can't obtain through elections--and that they're still ticked off that they didn't pull the trick off in December of 2000. Here's hoping that Scalia stays put unless he's done a head count and realizes that his vote won't matter one way or another (which of course, was the situation with No-Life Newdow's Pledge case).

[liberaljaponicus]

I've come to the conclusion that the left is addicted...

Setting aside any comment on the merits of your argument, after the recent thread having Von invoke forward motion, this does not seem like a good time to invoke 'the left'. If you would permit me to rephrase:

---
I'm not sure that this argument is as knock-down as you feel it is. After all, Brennan and Marshall made it clear in their (dissenting) opinions for years that no death penalty statute would pass muster with them--and yet neither of them ever recused themselves in later death penalty cases--and I'm supposed to be outraged that Scalia might rule on a matter that he's expressed an opinion about? You may wish to rethink this.
---

I would also note that your claim that Scalia did a head count is basically similar to mine. I'm not sure I'm happy having Supremes game the decision making process like that. What's next, a blog?

[M. Scott Eiland]

Since I can't recall *any* instances where the right demanded that, say, Stevens or Ginsburg recuse themselves from a case--and several cases where the reverse was true, my accusation stands, and it would take more than a single instance to make me change my mind about this being a one-sided game--particularly after 2000 and the bitterness over Bush v. Gore.

As for gaming decisions, I'd suggest Googling "The Rule of Five" combined with "Brennan" for some enlightening information on how that's been the name of the game on the Court for years.

[Anarch]

Completely OT: The Cornell-Wisconsin hockey game (for the last spot in the Frozen Four) is now approaching its *100th* scoreless minute. Holy schnikeys...

[liberaljaponicus]

I am not asking you to change your mind, Scott, I am merely pointing out that you could make your point a little less, well, pointedly. If you want to provoke serious discussion. I mean, your example of the death penalty leads to the (unfair) reductio ad absurdum that the Supremes need to avoid saying torture is wrong so when they need to decide, they will have an open mind.

As for 'gaming', what I had in mind was going to the court of public opinion, which is what you suggest that Scalia was doing when he took a head count and then chose to speak out. In fact, that whole approach helps to harden ideological divisions rather than generate true compromise. One of the reasons why things have worked out in the US is because we have a Supreme Court that holds itself at a remove from the passions of the current political scene. You may disagree with this (but you'd be disagreeing with Rehnquist, given that he refused to allow cameras), but to my mind, it's a feature, not a bug. However, we are seeing this slip, both with Scalia's excursions into public speaking and, more worringly, the tittering about Ginsburg nodding off during oral arguments, as well as the questions raised by conservatives during the Harriet Miers debacle. I don't think it is such a good idea, but again, maybe I am just longing for the old days, like any good liberal should...

[Gary Farber]

"So, Brennan and Marshall made it clear in their (dissenting) opinions for years that no death penalty statute would pass muster with them--and yet neither of them ever recused themselves in later death penalty cases--and I'm supposed to be outraged that Scalia might rule on a matter that he's expressed an opinion about?"

Scott, notice any distinction between a written legal opinion in a case you've heard, under specific legal rules as to what you're supposed to consider, and a totally off-the-cuff general opinion?

If not, as discussed, why exactly is it that judicial nominees shouldn't be required to disclose all their general opinions at their nomination hearings?

[Gary Farber]

"Since I can't recall *any* instances where the right demanded that, say, Stevens or Ginsburg recuse themselves from a case-"

If you'd like to point out the cases you have in mind, go ahead, and we'll discuss them.

"I'm sure there must be something" won't cut it.

[Steve]

The difference between stating a sweeping legal rule in the course of deciding a case, and making an out-of-court statement about the legal principle that one intends to apply in a future case, is so obvious it hardly merits discussion.

If Scalia's defense to all this were "Look, I said nothing in that speech that I haven't written in my prior opinions," then yes, that would be a good reason not to recuse. For example, even though Scalia has written many opinions in which he states his view that Roe v. Wade was incorrectly decided, no one claims he should recuse himself in future abortion cases.

But yeah, it's all partisan revenge for Bush v. Gore. Prior to 2000, judges routinely went around the world making speeches about how they would decide future cases, and no one thought anything of it. Right.

[M. Scott Eiland]

I'm sure there must be something" won't cut it.

I'm sure that, if I chose to, I might be able to muster up a measure of caring about what you consider as "cutting it," Gary. Instead--I'll note that there are three examples in the comments to this very thread, and suggest that there are no counterexamples of the ABA or the right complaining about similar participation by liberal justices, and bid you good luck at finding any, if you're so inclined.

Scott, notice any distinction between a written legal opinion in a case you've heard, under specific legal rules as to what you're supposed to consider, and a totally off-the-cuff general opinion?

Not when the Justices in question have stated that *no* factual circumstances would justify a death sentence, no.

If not, as discussed, why exactly is it that judicial nominees shouldn't be required to disclose all their general opinions at their nomination hearings?

If the nominee has expressed clear-cut positions on an issue in public--regardless of the forum--a Senator may certainly base his decision as to his vote on those expressed positions. A question under oath about future rulings on a subject when no firm opinion has been expressed by the nomineeis another matter altogether.

[Gary Farber]

Scott, notice any distinction between a written legal opinion in a case you've heard, under specific legal rules as to what you're supposed to consider, and a totally off-the-cuff general opinion?

Not when the Justices in question have stated that *no* factual circumstances would justify a death sentence, no.

Harry Blackman's famous statement was from a judicial opinion, of course. Callins v. Collins.

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored...to develop...rules that would lend more than the mere appearance of fairness to the death penalty endeavor...Rather than continue to coddle the court's delusion that the desired level of fairness has been achieved...I feel...obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies... Perhaps one day this court will develop procedural rules or verbal formulas that actually will provide consistency, fairness and reliability in a capital-sentencing scheme. I am not optimistic that such a day will come. I am more optimistic, though, that this court eventually will conclude that the effort to eliminate arbitrariness while preserving fairness 'in the infliction of [death] is so plainly doomed to failure that it and the death penalty must be abandoned altogether.' (Godfrey v. Georgia, 1980) I may not live to see that day, but I have faith that eventually it will arrive. The path the court has chosen lessen us all."

You are free to disagree with this all you like. You can't claim it wasn't a judicial decision, made under proper restrictions. You can't claim that referring to it is improper or comparable to Scalia's ex parte declaration, unless you'd like to point out to the decision he was quoting or paraphrasing.

"Instead--I'll note that there are three examples in the comments to this very thread,"

If you are insufficiently interested in discussion to bother to mention what they specifically are, well, so be it.

[liberal japonicus]

I'm sure that, if I chose to, I might be able to muster up a measure of caring about what you consider as "cutting it," Gary.

The keep throwing stuff until something sticks approach. Well, it has a history of working, but I don't think it will engender much respect, at least around here.

suggest that there are no counterexamples of the ABA or the right complaining about similar participation by liberal justices, and bid you good luck at finding any, if you're so inclined.

A stroll thru Confirmthem.org (this one, since your statement sounds like it only requires one counterexample) might provide some necessary balance for you.

[M. Scott Eiland]

I don't see a suggestion of recusal in future cases there, LJ--but I'll concede that I'd have found it rather improper if, say, Scalia had engaged in a public rant about how Bill Clinton should appoint the "right kind" of Justice to replace Byron White.

[CaseyL]

I think there's a difference between expressing an opinion on a general subject area of law that's likely to come before the SCOTUS (e.g., death penalty, abortion) - which is a matter to be aired and debated during confirmation hearings - and expressing a specific opinion on a specific case that's definitely on the docket.

I think the difference is that the first example is a judge having a general legal philosophy, and the second example is a judge deciding which way s/he'll vote on a case before the arguments are heard.

[Francis]

and the preceding is a classic example of asserting, and falling for, the tu quoque strategy.

also known as the Playground Defense. ["he started it!"]

assuming, arguendo, that Brennan and Marshall were (on some level) "wrong" to prejudge the ability of states to administer the death penalty with minimum standards of due process, and further assuming, arguendo, that the famously monolithic "left" was wrong in failing to call for the sanction / recusal / impeachment of these judges,

so what?

Their conduct now justifies Scalia's? or excuses it? or neither?

for if Scalia was justified in speaking out as he did [notably, presuming facts not actually in evidence], then Roberts and Alito were WRONG to refuse to speak on matters which may come before the court.

and I didn't think that conservatives bought into the whole moral relativism idea. To an absolutist, one person's wrong conduct does not excuse, justify or permit a follow-up wrong, especially when the wrongs are not counter-balancing.

the best thing about the tu quoque, when successfully deployed, is that it shifts the topic of conversation from the conduct of the individual at question to the conduct of other individuals, and to the meta question of comparing various different kinds of conduct.

so, hat tip to M. Scott for a successful threadjack.

as to the accusation that the monolithic left exists, or has to apologize for the conduct of Brennan or Marshall, GO POUND SAND.

submit that post to RedState and get your dittoheads all excited. They could use the diversion.

The topic here is whether Scalia's conduct was appropriate. Since he clearly cannot live up to his own standards of adjudication [involving the rigorous, even mathematical, application of the law to the facts], he should in fact recuse himself.

[M. Scott Eiland]

Their conduct now justifies Scalia's? or excuses it? or neither?

I believe the word you're searching for is "precedent," Counselor.

As for the hissy fit that followed that sentence, I'd give it a 5.0, with two-tenths off for the splash on the entry.

[Steve]

Every day of every week, judges issue opinions that make sweeping statements of legal principles. There is absolutely nothing wrong with it, or even anything remarkable about it.

No one has ever seriously suggested that if an opinion makes a blanket statement of the law, indicating that different facts would not alter the result, the judge is thereby disqualified from hearing any more cases on the subject.

It's entirely different from making an out-of-court statement on the merits of a pending or future case, whicha a judge is simply not supposed to do, period. I just don't understand how anyone could even argue that the two cases are the same.

[Anderson]

Orin Kerr opines that, b/c Scalia didn't actually mention a lower court ruling, he'll be able to finesse not recusing.

Agree or disagree, Prof. Kerr's opinions tend to be judicious (no pun intended).

[Carleton Wu]

I believe the word you're searching for is "precedent," Counselor.

Since you've already demonstrated above that you have scant knowledge of or respect for the law (eg in not caring whether judges' comments came from their legal decisions or from speeches prior to even hearing the arguments in a case), it is unsuprising to see you misapply a legal term to a nonlegal situation & think that it has any reasonable bearing. Or that it's "cute" or "cutting" or something.
Apparently this is a (the?) function that the law serves for you- convenient uninformed interpretation to fuel partisan political points. You even managed to drag Bush v Gore into it (thus earning your double-bonus Frequent Wingnut Miles).

Since you obviously don't care about the legal points except as fodder for spin, Im not sure why you've even bothered to engage in discussion. There are plenty of sites where you can get your partisan rocks off in the unintellectual manner to which you have apparenently become accustomed, without bothering the adults.

[Carleton Wu]

"to a nonlegal situation" should be "in a nonlegal manner"- my bad.

[hilzoy]

Carleton: civility.

[liberaljaponicus]

Guys, I think we've met our pile on quota for the month. I think the point has been made.

[CharleyCarp]

I don't mean to have given the impression that I think Justice Scalia must recuse for having expressed an out-of-court opinion. I think M. Scott has a valid point about having a pre-stated position -- from a section 455 standpoint, it's not the forum or method of making the judge's view known, but rather the reasonableness of the appearance of imprpriety that controls. I do note, however, that M. Scott hasn't dealt very effectively with the canon quoted by Katherine.

But then, I don't agree with any of the judges, of whatever level, who refuse to disclose views they already have in a confirmation hearing. I've got no problem at all with 'I haven't really considered that, and will take a look at the issue when it's presented to me' where that is an honest answer. Where the honest answer is 'I think the Fourteenth Amendment does in fact preclude state statutes that criminalize abortion prior to viability' -- or 'I think the Fourteenth Amendment does not preclude any statutes with respect to abortion' -- I think the nominee should answer. Put differently, if I was a senator, I'd vote no on any judge I thought was holding out. Fortunately for everyone, this isn't going to come up.

What I find more disturbing about Justice Scalia's remarks is not that he expressed an opinion, or that it is an opinion with which I disagree. Rather, it is that he (a) totally ducked the Geneva Conventions question by spouting a RW talking point -- as if the fact of whether someone is apprehended on a battlefield precludes application of the Geneva Conventions and, more important, (b) his invocation of his son as a reason to rule in a particular way, seemingly notwithstanding the applicable law. This latter, I think, does raise a real issue. Is it enough? I don't know, I think I'd have to see the videotape.

The man has a real sense of humor, and isn't afraid to yank chains. (I remember about 15 years ago seeing him on one of those ethical dilema shows, where the question was over executing an innocent person. Scalia said that if the guy hadn't done the crime for which he was convicted, he'd surely done enough others to warrant execution. It clearly wasn't serious, and the audience laughed). The remarks don't look like that, but then I'm not sure I can tell.

I'm of two minds. At the end of the day, I'd rather Hamdan won than lost, and if recusal was the difference, well, I could live with it. My strong preference, though, would be to win with Scalia on the Court, so we don't spend the next several years arguing about how little legitimacy the decision has, because Roberts and Scalia weren't in on it.

[CharleyCarp]

Katherine, I think you'd enjoy the amicus brief regarding the international law of conspiracy. http://www.hamdanvrumsfeld.com/15053HuntonBRFcomplete.pdf>PDF.

The amicus briefs are all quite good, and the site I linked to above gives a one liner on what they are about. I'm going to read the Charming Betsy amicus right now, and then head for bed.

[hilzoy]

Did I ever mention the time I was seated next to Scalia at a dinner party, and got into an argument with him about originalism, and managed to convince him (or at least: somehow get him to say) that yes, what accounted for the differences between his view and that of Ronald Dworkin (liberal legal scholar) was that he (Scalia) was a moral nihilist?

[Gary Farber]

"I'm going to read the Charming Betsy amicus right now...."

I actually know what that means!

I feel so proud.

[Anarch]

Was this after his presentation about 10 years ago? If so, I was an overbooked freshman and I've always mildly regretted not having gone.

[Gary Farber]

Hilzoy gets to be much prouder. Of course.

(Incidentally, I'm not sure I knew how Charming Betsy was before this Emily Bazelon piece last year, and her link and other googling back then.)

[bob mcmanus]

"...totally ducked the Geneva Conventions question by spouting a RW talking point -- as if the fact of whether someone is apprehended on a battlefield precludes application of the Geneva Conventions"

This was actually closer to what I was asking at 5:38. But I don't think his position was as clear as CC says. The usual RW talking point:"...apprehended on a battlefield not wearing a uniform or otherwise clearly attached to a combatant state..." is an "unlawful non-combatant". Scalia may have left something out. But the language on its face seems to imply that anyone apprehended on a battlefield has no protection under Geneva or Hague, i.e., Scalia is denying the validity of those treaties.

Also note the specific pronoun "he" as in "if he is apprehended..." Does the "he" refer to Hamdan? Then recuse him instantly.

[bob mcmanus]

Of course I meant "unlawful combatant" or whatever the term that the hundreds of non-person sub-human unprotected critters are in the RW nomenklatur this week.

[hilzoy]

Anarch: yes. I have always thought that whoever did the seating must have had a deeply perverse streak.

[Steve]

A few nuances of note:

1) Scalia addressed a narrow issue: Is an enemy captured "on the battlefield" entitled to a jury trial? I think, with all due respect, that this is pretty much a no-brainer.

2) It's unclear whether Hamdan was, in fact, captured on the battlefield. The undisputed facts are that he was captured (1) in Afghanistan (2) while active hostilities were ongoing. But it has not been established that he was a participant in those hostilities. Hamdan claims he was trying to get his family out of the country, and that indigenous forces captured him and turned him over to the Americans for a bounty. Because this fact remains in dispute, the Supreme Court will not be deciding it either way.

3) The issue before the Supreme Court goes well beyond whether Hamdan is entitled to a jury trial. Even if the Court decides that a military tribunal is sufficient, it still must pass upon the degree of due process required in those tribunals. Does the Supreme Court send the case back to the district court with instructions to determine whether Hamdan was captured on the battlefield, for example? Or is the military tribunal competent to make that determination?

A similar situation was presented in Hamdi, where the Court held that "enemy combatants" at Guantanamo were not entitled to trials, but they were at least entitled to some sort of fair hearing to determine whether they, in fact, met the definition of enemy combatants.

Upon reflection, Prof. Kerr is probably right that Scalia will not have to recuse himself; the issue he spoke about actually seems rather noncontroversial, and it is not at all clear that Hamdan fits within the fact pattern he addressed.

[bob mcmanus]

OT:Riverbend nominated for book award.

Hope She Likes London ...Gilliard

I really worry about Riverbend.

[jason]

Did I ever mention the time I was seated next to Scalia at a dinner party, and got into an argument with him about originalism

Man, would I love to see a transcript of that. I cannot for the life of me figure out how anyone can regard 'originalism,' in any of its versions, as anything other than a non-starter.

But hey, IANAL, as the saying goes around here. IAN even a philosopher of L(aw). Though I did once chat with Joel Feinberg a bit at a party at his house.

[Sebastian Holsclaw]

"So, Brennan and Marshall made it clear in their (dissenting) opinions for years that no death penalty statute would pass muster with them--and yet neither of them ever recused themselves in later death penalty cases--and I'm supposed to be outraged that Scalia might rule on a matter that he's expressed an opinion about?"

I actually think this is a much more interesting point than you all seem to give it credit for (perhaps you are being distracted by the sentence that comes right after).

First of all dissent statements aren't controlling law, so put out any thoughts of getting out as precedent.

Gary writes: "Scott, notice any distinction between a written legal opinion in a case you've heard, under specific legal rules as to what you're supposed to consider, and a totally off-the-cuff general opinion?"

Steve writes: "The difference between stating a sweeping legal rule in the course of deciding a case, and making an out-of-court statement about the legal principle that one intends to apply in a future case, is so obvious it hardly merits discussion."

Now don't get me wrong, I think having a rule requiring recusal when you have written a dissent on the same issue would be a good idea. But the rule is "Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." From the time Blackman wrote that dissent, we knew in advance how he was going to vote on any death penalty case. Same goes for Marshall and Brennan. They were not bound by precedent because their opinions were not controlling. They weren't going to weigh the cases individually, they had predecided the issue. They had come to a particular view of an issue, and been judged wrong by the Supreme Court as a whole--yet they stuck to it anyway with prospective statements.

[Sebastian Holsclaw]

" I think having a rule requiring recusal when you have written a dissent on the same issue would be a good idea."

Yikes, a missing "don't" really wrecks that sentence. I DON'T think having a rule requiring recusal when you have written a dissent on the same issue would be a good idea. DON'T

[CharleyCarp]

Steve, you have to separate Hamdi from Hamdan by a significant fact. In Hamdi, the government wanted to hold a man captured under arms on a battlefield until the end of the war, without affording any kind of adjudicative process. In Hamdan, the government wants to put the guy on trial for crimes, and hold him for (a) a determinate sentence or (b) the end of the war, whichever is longer.

Hamdan isn't saying, 'hey you have to give me a trial.' It's more like 'hey, the trial you're planning to give fails to meet the requirements of US and international law.' I don't believe that he is arguing for a civilian jury trial, and if he was I don't think he'd win. He certainly did not win on that basis in the district court. As I see it, the government would completely avoid this case if they announced that they were going to try him in accordance with the UCMJ.

I agree with you that the remark sounds more like it's directed to Rasul (or, as it's now known, Al Odah), to the extent it's directed at anything. However, the Geneva Convention question, that's directly raised in Hamdan, and I'm not sure saying, more or less, that because his son fought in the war, he's not inclined to grant combatants rights under the Geneva Convention is problematic.

[CharleyCarp]

SH: Obviously, writing a decision doesn't automatically get you into 455 territory, otherwise, each judge would get one case on each subject, and that would be it. I get a case, and some judge says I have to show duty, breach, proximate cause, and injury, and the guy can never hear a negligence case again?

On the other hand, if the judge said 'my sister was badly hurt when, while waiting for a train, some fireworks went off and people panicked, so if you were hurt on a train platform, I'm going to rule for you, period' there would be a problem.

Also, care to address the canon quoted by Katherine?

[CharleyCarp]

Hmm. Instead of "problematic" in the 6:13, insert "kosher."

[CaseyL]

"But the rule is "Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

Charley raises a good point; i.e., that your suggested interpretation of the impartiality rule would mean every judge would be limited to one opinion in any area of law. The Jusices who ruled on Gideon would not be able to rule on any other access-to-counsel matter; and Miranda would mean no Justice could rule on any other 5th Amendment matter. It would also mean that the next decision on abortion - no matter which way the decision goes - would have to be the final say on the issue, until the entire Court was replaced.

This is obviously (at least, I hope its obviously) an unworkable interpretation of the impartiality rule. So perhaps it means something different than you suggest it might.

Perhaps the impartiality rule applies to the specific parties of a specific case. That is, cases where a judge or Justice had already decided that Party X should prevail in a case that hadn't actually been heard yet - that is, regardless of the merits or facts or evidence.

[Sebastian Holsclaw]

It isn't my proposed interpretation of the rule. I don't think it would be a good idea. But ruling with the majority doesn't cause the problem--then you have precedent. Only certain types of dissent--those that prejudge an entire class of cases--would be problematic. The point is that Blackman (and Brennan and Marshall) publically announced how they would rule on all future cases regarding the death penalty. Their impartiality when those cases arrive before them is in fact clearly in question. Furthermore it is clearly in question in a way that is not the law so they cannot appeal to precedent. This suggests either that you have a "judges can prejudge cases as long as they announce it things called 'dissent opinions' exception" which works formally but has pretty much nothing going for it from an intellectual point of view or you can point out that for Supreme Court members can announce their personal thoughts on judicial matters.

Personally I think that recusal issues on the Supreme Court should be limited to conflict of interest--let them say whatever they want about how they think on case issues. It isn't as if they don't actually prejudge all sorts of issues, so it would be merely revealing what goes on--not allowing something new. Saying "I think this in a way that tends to strongly predict my thoughts on the outcome" is not actually worse than already having thoughts that likely predict the outcome of the case. The difference is that you SEE the thought process in advance in the former case, nothing else.

[Gary Farber]

"Yikes, a missing "don't" really wrecks that sentence. I DON'T think having a rule requiring recusal when you have written a dissent on the same issue would be a good idea. DON'T"

I interpolated that as having been what you meant, anyway, though it's good to have it confirmed.

[Gary Farber]

"Furthermore it is clearly in question in a way that is not the law so they cannot appeal to precedent."

IANAL, and so I can't speak well to how the following points fit into the Philosophy (or more likely "philosophies") of Law, but dissents are part of the law.

Not in the sense that they control, because definitionally they do not, but they're not mere torn up scraps of paper fetched out of the garbage pail, either.

They are preserved and recorded as part of the decision for a reason. Judgments record both majority and miniority opinions, and every opinion written by a SCOTUS or appeals judge.

And that's because dissents matter; their thoughts are considered by other judges, though not as relevantly as the majority opinions. But the logic and reasoning are referred to in subsequent cases, and often provide that logic and reasoning to another decision that does win in another, later, case.

Dissents have a way of sometimes eventually becoming majority Supreme Court decisions.

So the notion that somehow they don't count and are not "in the law" is just wrong. Lawyers, comment, and tell me I'm getting it all wrong?

[Anderson]

Gary, a dissenting opinion is not "the law." It may become the law, as may a position staked out in a law review article.

As you already know, lawyers distinguish b/t 2 kinds of authority, binding & persuasive. Only *binding* authority is "the law" in the sense of "break it at your peril." Dissents are at best persuasive authority.

(Of course, one jurisdiction's binding authority is another's persuasive authority. Even the Supreme Court can be a merely persuasive authority, if it renders an Erie guess about what a state's own law would be.)

So you're right in every respect, except that it's using "the law" incorrectly to say that dissents are "the law."

[Anderson]

(Wiki used not to define "Erie guess," but it does now. Fellow lawyers may want to take a look & fix any errors.)

[manyoso]

As Katherine posted:

(6) A judge should avoid public comment on the merits of a pending or impending action, requiring similar restraint by court personnel subject to the judge's direction and control. This proscription does not extend to public statements made in the course of the judge's official duties, to the explanation of court procedures, or to a scholarly presentation made for purposes of legal education.

I realize that this canon is not directly related to recusal, but it does provide a guidepost for acceptable judicial comments.

SB, dissents are a part of a "judge's official duties", no?

A dissenting opinion might not be the law, but it is an absolutely essential part of judicial rulemaking in the United States.

[Anderson]

In unrelated news, Moussaoui seems to have dedicated what remains of his life to running up his lawyers' blood pressure:

Al-Qaida conspirator Zacarias Moussaoui testified Monday he lied to investigators when arrested in August 2001 because he wanted to let the attacks of Sept. 11 go forward.

"Yes, you can say that," Moussaoui said when the prosecution asked if that was why he misled investigators.

Now it just depends on whether the jurors think he's a nut, I suppose.

[cafl]

As quoted above, Brennan stated: "I feel...obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies... Perhaps one day this court will develop procedural rules or verbal formulas that actually will provide consistency, fairness and reliability in a capital-sentencing scheme. I am not optimistic that such a day will come."

Brennan doesn't preclude ever finding a procedural rule that "save[s] the death penalty from its inherent constitutional deficiencies", he simply expresses the view that he finds it unlikely to occur. In essence he is stating that something as yet unexpressed will have to be found. How is this prejudgement?

[Anderson]

SB, dissents are a part of a "judge's official duties", no?

Actually, no. No justice is required to write a dissenting opinion, that I'm aware of. You can vote against the majority without writing an op, tho nowadays at the SCOTUS level, I believe that's very rare.

A dissenting opinion might not be the law, but it is an absolutely essential part of judicial rulemaking in the United States.

Again, not so. Arguments can be & have been made that dissenting ops should not be published, for various reasons (undermining judicial legitimacy, etc.). They used to be rather uncommon; I get the perhaps unfounded impression that Holmes popularized 'em, though certainly there were great dissents before him (Harlan in Plessy, the dissents in Dred Scott).

State courts can be the most annoying. Mississippi's high court drives me up the wall by allowing a justice to "concur in part and dissent in part without separate written opinion." This happens sometimes even when the other justices are split evenly, so it would be very nice to know WHAT part is concurred with.

[manyoso]

"Actually, no. No justice is required to write a dissenting opinion, that I'm aware of."

Right, they are a prerogative, but when the judge exercises that prerogative the judge is doing so in an official capacity as a judge, no?

"Again, not so. Arguments can be & have been made that dissenting ops should not be published, for various reasons (undermining judicial legitimacy, etc.)."

Arguments can be made about a great many things, but dissenting opinions have a large history in our judicial system. They have been referred to in countless court cases and removing dissenting opinions would be a very large break.

[manyoso]

Off topic, but related to the SC:

Scalia shows off that famous judicial temperment.

[Gary Farber]

"Gary, a dissenting opinion is not 'the law.'"

And a good thing I didn't say it was, too.

[Gary Farber]

SB, dissents are a part of a "judge's official duties", no?

Actually, no. No justice is required to write a dissenting opinion, that I'm aware of.

And yet most people have things that are not mandatory in their job that, when done, are part of the job. So in this case, "no" means "yes."

Whether somethig is mandatory as part of one's job is, in fact, entirely irrelevant to whether it is part of one's job.

In this case, do judges write dissents as part of their job, or do they write them as part of a wacky hobby after they go home, and just toss them out for the amusement of it all, making sure there is no official record of them?

I can't believe I have to even ask the question.

Earlier:

So you're right in every respect, except that it's using "the law" incorrectly to say that dissents are "the law."

It would be if someone wrote that. Who wrote that? It certainly wasn't me, the person whose comment you wrote this in reply to. Were you responding to some comment elsewhere?

[Sebastian Holsclaw]

I would say that writing a dissent is part of the official duties, but that some dissents nevertheless call into question impartiality of future decisions if we are going to take a hard line on judicial discussion of issues. Just want to point out again that the canon quote doesn't speak directly to recusal. The recusal section has been quote separately above.

[Anderson]

And yet most people have things that are not mandatory in their job that, when done, are part of the job. So in this case, "no" means "yes."

Terminological slippage, Gary. "Official duties" isn't the same as "part of the job." Clarence Thomas can ask questions at oral argument, b/c it's "part of the job" for him to do so, but his failure to do so isn't neglect of his official duties.

Sebastian is I think a bit looser with "duty" than I was; to me, if something's a "duty" then you have no option not to do it. Perhaps I'm being too Kantian. Hilzoy?

As for "the law," the slippage is mine; you said "in the law" or "part of the law." These mean nothing to me as a lawyer--something's "the law" or it's not, just as one is On the Bus or else Off the Bus. But if you mean something by those terms other than "the law," carry on sir, carry on.

Dissenting opinions, like oral argument, could be abolished tomorrow by fiat of the SCOTUS. Justices would doubtless publish their disagreements elsewhere, and those disagreements might persuade future majorities.

[manyoso]

SB, right. The canon does not speak directly to the recusal section.

However, can a judge's impartiality "reasonably be questioned" for writing a dissenting opinion in the course of official duties?

I don't think so. As you yourself have pointed out, that would lead to the unreasonable conclusion that judge's are required to recuse in all manner of cases.

Again, SB, you have affirmed that this would be unreasonable, no?

With that out of the way, we can look at Scalia's current situation. According to guidelines, if the judge's impartiality can "reasonably be questioned" then the judge is of a right to recuse.

Scalia's comments were not a undertaken as part of his official duties unless to argue, speciously at best, that he made the comments to further legal education.

[socratic_me]

This is actually one of the more interesting comment threads I have seen in a while. I have been worried on the same point as SH for a while and just haven't been able to word it as well. Why shoulod it make me a significant difference if someone tells me in dissent that a certain mode of thought guides his thinking on all future cases or if he just says it in a press conference? If the reason for the opinion is terrible, then we ought to encourage a system that encourages the revelation of such information, not one that discourages it.

[manyoso]

Anderson, I think you are placing to much emphasis on one definition of 'duty'.

"Official duties" need not be interpreted as "Required duties."

A duty, here, can be interpreted as a task.

Hazardous duty need not be required. Often, it is voluntary.

[Anderson]

More on dissents: Orin Kerr links us to an unpublished separate opinion by Justice Robert Jackson in the oh-so-timely Quirin case; the op was ultimately withdrawn by Jackson, who joined the majority.

The only thing that the separate op lacks that a dissenting opinion would have (besides being accessible sooner than 60 years after the fact) is the authorial imprimatur that it reflects the justice's own viewpoint. Its arguments may or may not be persuasive, just as with any published separate opinion.

Any other metaphysical distinctions? Please post 'em!

[Gary Farber]

As for "the law," the slippage is mine; you said "in the law" or "part of the law." These mean nothing to me as a lawyer--something's "the law" or it's not, just as one is On the Bus or else Off the Bus. But if you mean something by those terms other than "the law," carry on sir, carry on.

Is it fair to say that dissents are a normal part of our judicial custom, tradition, and practice, and that they are oft-times cited in controlling majority (or unitary) legal opinions?

I believe so, and that's all I meant.

Digressing back to Mr. Eiland's entering us into this part of the discussion, I'd wait for him to return to these points, but it's possible I might have to wait some time. Perhaps, though, he might wish to actually discuss, rather than make some sort of cruise-by non-point.

[Anderson]

Anderson, I think you are placing to much emphasis on one definition of 'duty'.

Very possibly. So much easier to critique Kant in theory than to escape him in practice ...

IIRC, we could call dissent-writing a "discretionary" function of the Court, rather than a "ministerial" function ....

More broadly, SH and Socratic Me are persuasive. If I think Roe is a joke & say so, that shouldn't lead me to recuse myself from a case on it. My opinion could after all be changed.

OTOH, remarks that suggest a personal bias are material to recusal, & Scalia's comment about his son (was that literally "his son"?) is certainly somewhere in that gray zone.

[manyoso]

socratic_me, FWIW, I'm mostly playing devil's advocate here:

I would argue that dissenting opinions afford the judge to state his judicial opinion whilst mouthing off in public imposes no constraint whatsoever.

If we are to entertain the polite notion that Supreme Court justices are capable of shunting aside their personal opinions in favor of their dispassionate judicial opinions, then surely we can entertain the similarly polite notion that what a judge write's in a dissenting opinion reflects said solitary judicial opinion.

[Anderson]

Perhaps, though, he might wish to actually discuss, rather than make some sort of cruise-by non-point.

Sometimes, IIRC, these drive-bys are followed by reports at Tacitus.org of what "the moonbats" at ObWi are up to.

As for custom, I suppose that what needs more explaining may be the majority opinion. I believe that "seriatim" ops, where each judge or lord wrote his own separate op, were the rule rather than the exception in the late 18th c. But we would need someone better versed in legal history than I to sound in on that topic.

[Sebastian Holsclaw]

With that out of the way, we can look at Scalia's current situation. According to guidelines, if the judge's impartiality can "reasonably be questioned" then the judge is of a right to recuse.

Scalia's comments were not a undertaken as part of his official duties unless to argue, speciously at best, that he made the comments to further legal education.

Once again the canon doesn't bind this issue so the official duties question is officially not at issue. I agree that recusal for dissents would make a bad rule. But I don't agree that they pose less of a problem for the appearance of impartiality than side comments on the law.

If I were to design a system of recusal I would try to discern a difference between an impartial application of laws to a defendant or petitioner and an uninformed view of the meaning of laws. If a judge can’t be impartial in the application of laws to a petitioner he absolutely must recuse himself. But a judge should not pretend to have an uniformed view of the meaning of laws. If someone were to say that the 1st Amendment protected the right to shoot your neighbor because he looked at you funny, a judge should be able to say that view is ridiculous and not be forced to recuse himself.

In this view, Scalia’s comments what the law is (and Blackmun’s dissent about his view on the death penalty) should not trigger recusal. Scalia’s statement about his son, on the other hand, is a much closer call. I don’t read it as changing the comments on the law so I don’t think it should be dispositive. But I think it is a much closer case than the mere fact that Scalia has ideas about laws before the case comes to final argument.

[manyoso]

SH, I could probably get behind such a system. However, that is not our current system as we were recently informed countless times by way of the Roberts/Alito nominations.

Setting aside what we'd like the system to be and considering what it currently is, I believe it is:

1. Unreasonable to question the impartiality of a judge for stating judicial opinion in the course of official (non-mandatory) duties.

2. Reasonable to question the impartiality of Scalia given his recent remarks in light of the upcoming case.

Noted many times now, the canon quoted above does not bind in matters of recusal, however it can be used (as I'm explicitly doing) to suggest what is reasonable.

[liberaljaponicus]

Wasn't Scalia's recusal triggered by Newdow's request? Would Scalia have recused himself if the request hadn't been made?

[Sebastian Holsclaw]

From the WeeklyStandard:

BY ALL ACCOUNTS, Scalia's Freiburg speech did not go beyond the views he already expressed in his Rasul and Hamdi dissents. The applicable 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." Scalia's critics argue that his Freiburg speech calls his impartiality into question. But to show that their questions are "reasonable," they face two tough questions: Since Justice Scalia's speech didn't go beyond his Rasul and Hamdi opinions, are those dissents already grounds for recusal? And if not, is their position simply that justices cannot speak publicly on matters where they have already expressed a view through published legal opinions?

It would, of course, be unprecedented to require a Supreme Court justice to recuse himself from deciding issues on which he has already expounded in past opinions. Justices routinely use their dissents to shape future court decisions. Chief Justice Rehnquist's lone dissents in the 1970s became the foundation of the federalism revival of the 1990s. And after Justice Stevens dissented in the 1986 Bowers v. Hardwick sodomy case, he had the pleasure of joining a majority opinion 17 years later that quoted his dissent approvingly: "Justice Stevens' analysis, in our view, should have been controlling in Bowers and should control here."

I would personally go with my feel as above, but in the more strict legal sense this analysis seems to be accurate.

[socratic_me]

manyoso:

I would argue that dissenting opinions afford the judge to state his judicial opinion whilst mouthing off in public imposes no constraint whatsoever.

Again, I am none to sure of my own position on this, but the line from SH that struck most true to me was this:

This suggests either that you have a "judges can prejudge cases as long as they announce it things called 'dissent opinions' exception" which works formally but has pretty much nothing going for it from an intellectual point of view or you can point out that for Supreme Court members can announce their personal thoughts on judicial matters.

It seems to me that the rule people want is just the one SH mentions. You can say anything you want so long as it is in your dissent. This seems like a horrible path to travel, and I have to think that the first time we saw a bizarrely personal opinion in a dissent, that rule would be thrown out the window.

Worse yet, it might not and we would have a nice solid pattern of pushing personal views into judicial opinions. This not only reinforces the case for completely clamming up during confirmation hearings, it also leads to bad law. I just can't see an upside to this empty formalism of a rule (that is a horrible bastardization of the word "formalism", I fear, but I am in a hurry and want to get this post off before I run some errands).

[Francis]

Anderson: i believe that the Law Lords wiki still issue their opinions that way. You have to then read them all to figure who won.

[kenB]

I agree with SH and socratic, which is more or less where I was going with my question before. What we really want (I think) are judges who are in fact unbiased and open to argument. I don't see how a "gag rule" for judges gets us any closer to that goal. AFAICT the only reason for these rules is to maintain the appearance of those qualities. If a judge has a bias or is entering into a case with certain preconceptions, I think it'd be better for us to know about it.

The only rationale that occurs to me is that judges are perfectly able to have strong opinions and still put them aside when hearing an actual case, but that most laypeople are too limited to understand this; so that having judges speak publicly about their preconceptions may create an appearance of partiality or pre-judgment when in fact there is none.

[hilzoy]

Originally, I was interested in what the rule was. Now, I'm getting more interested in (a) what we want to achieve, and (b) what policy would best get us there.

What we want to achieve seems to me to be some assurance of impartiality. I don't, offhand, see that announcing, in advance, one's view of a whole raft of potential cases would necessarily preclude that. I mean: suppose that a judge announced that in his or her view, it was unconstitutional for a freedom of speech to be abridged, or for a national religion to be established; and that s/he would so rule in any case that came up. This "prejudges" a lot, but it wouldn't seem to call the judge's objectivity into question, because in these cases it's so obviously an application of impartiality, or a way of demonstrating it, not a way of calling it into question.

Nor need it show closed-mindedness. I sometimes say to my students, when paper topics are announced, that as far as I'm concerned, only the argument counts, and that they can thus argue for any position at all and still, in principle, get an A. Of course, I add, there are some views that it's difficult to find a plausible argument for, like the view that the sole purpose of life is to contribute in some way to the manufacture of toaster-ovens, but that if they can find one, they're welcome to argue for that.

I might go on and say: I'm willing to bet large sums of money that no sound argument for that silly view can be found. Would I be closed-minded? Or would it be closed-minded of me to say that I very much doubt that anyone will ever find a worm who is capable of intelligent speech? No.

The trouble is that separating these cases from the more troublesome ones seems (to me) to require saying: the cases in which it's OK to announce what you think in advance are the cases in which what you think is obviously true. And that's likely to be contentious in application. Thus, I would think, the ban.

[Katherine]

I've thought about this a bit, because I once applied for a clerkship for the judge who eventually decided Arar v. Ashcroft. Not that I even got an interview--and it's a good thing, in that particular case--but it just got me thinking about recusal and exactly what it's supposed to accomplish.

I've written a law review article about rendition in which I conclude that:
1) Arar is telling the truth about what happened to him, and
2) What happened to him was not legal.

But in writing that article, I skipped over and took no position on all the jurisdictional issues that decided the case. So, following the conventional rules, I would least need to stay off the case at the motion to dismiss stage, when you have to assume that Arar's factual claims are all true anyway, and you're not directly asking whether what happened to him violates the Convention Against Torture.

But that's actually when it would be most unfair to have me on the case. Because with the factual stuff--I suppose I have seen some evidence that wouldn't be admissible but in the end the conclusion would very likely be the same. With the question of whether assurances from Syria are enough to make his treatment legal--the conclusion would not be any different because I'd written this paper than because I hadn't.

But with the jurisdictional stuff, I simply don't see how I could put aside everything I know about this case and neutrally decide if the U.S. officials were acting under color of Syrian law, or there was a special factor arguing against a Bivens action, or what have you.

It seems like that's the sort of partiality that you should really be trying to get at: the kind that actually prevents a judge from neutrally applying the law to the facts, because of his or her feelings about one of the parties, or the policy implications, or what have you. Not the kind that just lets you guess the result in advance. So his past legal opinions obviously are not a problem.

(I'm not saying there's no reason to recuse from the other two issues, it seems pretty clear that you should when you've directly drawn a conclusion that specific--just that, those might be where there is greatest "appearance of impropriety", but the risk of actual impropriety is much greater with the jurisdictional issues.)

This may be why what bothers me most is what Scalia said. He seems to be making unproven and false factual assumptions about the GTMO detainees, and be drawing legal conclusions based on irrelevant facts, and just have a general degree of animus.

Also, it's just not that freaking hard to avoid this kind of thing three weeks before oral argument. It doesn't interfere in any way with the public interest or the judge doing his job.

And, as I keep saying, the contrast with the confirmation hearings drives me up a wall.

[Anderson]

You have to then read them all to figure who won.

Right! And American lawyers not only don't want to read all those opinions, they don't even want to read the majority opinion (hence the widespread, if rarely admitted, practice of relying on the headnotes to a case).

Presumably it was also the judges' workload that eventually made "sure, I'll sign onto your opinion" seem like such a good idea.

[Katherine]

Specifically on Hamdan:

1) Some of the amici asked him to recuse. Hamdan's own lawyers did not. Probably a smart way to do it.

2) Senator Graham, not content with pushing his habeas-stripping bill through using a bunch of misleading arguments, is now using fake legislative history in briefs before the Supreme Court:

In their own brief to the court, Hamdan's lawyers said that Kyl and Graham's colloquy didn't take place on the floor of the Senate. As evidence, they cite the C-SPAN tape for the debate leading up to the Dec. 21 voice vote. Kyl and Graham don't appear. (See for yourself.) Senate officials confirm that the Graham-Kyl colloquy was inserted. When a senator wants to put a statement into the record, he or she signs it, writes "live" on it, and, with the routine consent of the rest of the body, into the record it goes.

That's not, however, what Kyl and Graham told the court. Their brief states that "the Congressional Record is presumed to reflect live debate except when the statements therein are followed by a bullet … or are underlined" (their italics). The colloquy appears in the record without a bullet or underline; ergo, the brief implies, it must be live. The colloquy is even scripted to sound live. "Mr. President, I see that we are nearing the end of our allotted time," Kyl says at one point. At another, Sen. Sam Brownback, R-Kan., appears to interject a question. "If I might interrupt," he begins.

I called Brownback's office to ask if he'd given this testimony live on the Senate floor. "Yes, it was live," an aide told me. I said that I'd been told otherwise by Senate staffers and mentioned the C-SPAN tape. "Let me call you back," the aide said. She never did. Nor did Kyl or Graham's press reps.

Charming. I can see why they wanted their statements in the record to balance Levin's, but I cannot see what they were trying to pull with this little dramatic re-enactment. What is this, America's Most Wanted? Did they think no one would check?

3) Another good article in Slate about whether the crime Hamdan is charged with--conspiracy--is really a war crime at all.

[Sebastian Holsclaw]

The Slate article is really good.

[manyoso]

This is interesting.

From SH on the Weekly Standard:

BY ALL ACCOUNTS, Scalia's Freiburg speech did not go beyond the views he already expressed in his Rasul and Hamdi dissents. The applicable 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." Scalia's critics argue that his Freiburg speech calls his impartiality into question. But to show that their questions are "reasonable," they face two tough questions: Since Justice Scalia's speech didn't go beyond his Rasul and Hamdi opinions, are those dissents already grounds for recusal? And if not, is their position simply that justices cannot speak publicly on matters where they have already expressed a view through published legal opinions?

However, we do know that Scalia considered his public comments as grounds for recusal in Newdow even though his comments "did not go beyond the views he'd already expressed" in another dissent:

Scalia's dissent in Lee v. Weisman:

Moreover, since the Pledge of Allegiance has been revised since Barnette to include the phrase "under God," recital of the Pledge would appear to raise the same Establishment Clause issue as the invocation and benediction. If students were psychologically coerced toremain standing during the invocation, they must also have been psychologically coerced, moments before, to stand for (and thereby, in the Court's view, take part in or appear to take part in) the Pledge. Must the Pledge therefore be barred from the public schools (both from graduation ceremonies and from the classroom)? In Barnette we held that a public school student could not be compelled to recite the Pledge; we did not even hint that she could not be compelled to observe respectful silence--indeed, even to stand in respectful silence--when those who wished to recite it did so. Logically, that ought to be the next project for the Court's bulldozer.

[Anderson]

The Slate article is really good.

Drawing some limits on the silly-putty "conspiracy" count should be a joint liberal-conservative venture.

Perhaps our terrorist-lovin' ways will have some beneficial fallout for the rest of us. Well, those of the rest of us who might be charged under federal conspiracy charges. No, don't raise your hands.

[rilkefan]

"the commission can hear testimony obtained through torture"

Surely anyone who listens to such testimony is in violation of an oath of some sort.

If someone had suggested to me the possibility of our using such testimony a few years ago, I would have considered them a Chomskyite loony.

[Katherine]

You mean the conspiracy one, Sebastian? I should have said: the one about fake legislative history is also in Slate, by Emily Bazelon.

This isn't an issue I've given much thought to, so this is very vague and ill-informed, but hey, that hasn't stopped me before:

I can see certain benefits to conspiracy as a war crime: war crimes can be really hard to prosecute for various reasons, especially the higher-ups, and you want there to be a way to prosecute and convict people who deserve it--both for its own sake and to reduce the temptation to "disappear" people instead. But while conspiracy can be used to hold Osama Bin Laden and Ayman al-Zawahiri responsible for Muhammad Atta's crimes, it can also be used to make an example of bin Laden's driver, or any other scrub we can get our hands on, for Bin Laden's crimes. So I think command responsibility is the better way to go.

It's also odd for the administration that

--is arguing that Geneva doesn't apply to
the conflict at all (a different argument from the argument that Hamdan is not a POW)
--regards customary international law as kind of made up
--thinks the President can legally violate the anti-torture statute, the War Crimes Act, and any other statute
--thinks the President can legally violate the Convention Against Torture, Geneva, and any other treaty every other treaty....

to be arguing that it can try Hamdan of war crimes at all, let alone as sketchy a war crime as conspiracy. Either the laws of war apply or they don't, it seems to me.

[liberaljaponicus]

Was it just me, or did the conspiracy charge article have this underlying current of 'decide this way so you won't have to deal with the tough questions, [because I don't think you can be trusted to make the right choice]' I understand that by taking conspiracy off the table, it attacks the government assertions in a particular way, but it doesn't seem like the denouement that is right or fitting (though I share the concern that this court is not going to be able to decide this correctly) As always, IANAL, and my impression is more emotional than based in any legal philosophy.

[Francis]

When confusion reigns (as it does so often between my ears), it's best to return to first principles:

So, I believe:

1. Al Qaeda is a multi-national terrorist organization.
2. So is the Mob.
3. The rules of war don't really work against a terrorist organization. Take a look at the problems presented by domestic eavesdropping. On the one hand, I want the US govt trying to catch bad guys. On the other, the notion that the president's war powers can be applied to US citizens is utterly repugnant.
4. So, the best way to deal with AQ is essentially through police work, with extremely limited targeted assassination. (see israel v. hamas, eg.)
5. We also went to war against the Govt of Afghanistan, and won. The laws of war should apply to that conflict, including repatriation upon the end of the conflict, and including war crimes trials for those who deserve it.

Now come the hard questions.

What do we do with the people that the Govt of Afghanistan wants us to keep? Can we establish some principled reason for their indefinite detention, especially if no other country will take them?

Who deserves a war crimes trial?

What due process rights attach to those being subject to a war crimes trial? In 50 years time, people should be able to look back and say "the US did the best it could" not "what a bunch of kangaroo courts".

Can the ordinary criminal justice system be used effectively against AQ members? Who decides?

What should the US do if it captures Bin Laden? A war crimes trial? A military court for high-ranking AQ members? Criminal trial? Summary execution?