Weekly Standard writer Daveed Gartenstein-Ross emailed me via The Moderate Voice about my recent Scalia post. He seems to think that Scalia’s recent speeches are perfectly within reason.
And after reading his article, I think Daveed has a valid point:
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.”
But wait, there’s more…
In what may be the starkest example of a justice pre-announcing his position, Justice Harry Blackmun announced in a 1994 dissent in a death-penalty case: “From this day forward, I no longer shall tinker with the machinery of death. . . . 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.” Justice Blackmun cited that dissent repeatedly in his subsequent opinions; he was never required to recuse himself from death-penalty petitions.
So yes, if this is the precedent I see no problems with Scalia hearing the Hamdan v. Rumsfeld case. You can’t expect one judge to act differently than others. Now, if these judges were wrong, please enlighten me, but right now I think Scalia is in the right.
In other news, Scalia flips the bird in church.