Bench Memos

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Response to Hit Pieces on Scalia -- Part 4


The only remaining piece of supposed evidence for me to address in Adam Cohen’s hit piece (TimesSelect subscriber-only) on Scalia is Scalia’s non-recusal in the pending Hamdan case.  Cohen complains that Scalia said that “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.”  According to Cohen, that statement seems to “directly prejudge” the issue in Hamdan, “in which an alleged al Qaeda member captured in Afghanistan was challenging the use of military tribunals to try detainees held in Guantanamo.”


There are at least two defects in this complaint.  First, Scalia’s statement is cast as a general description of what the law has been, not a judgment of what it should be.  Second, while the petitioner in Hamdan is challenging the use of military tribunals, he is not seeking a jury trial in American civil (as opposed to military) courts.  So Scalia’s statement isn’t prejudging anything, and it doesn’t directly relate to Hamdan.   


Cohen maintains that Scalia “made things worse” by stating “I had a son on that battlefield, and they were shooting at my son,” thus making the “strong suggestion that he was connecting the question of what rights detainees have to the danger posed to his son.”  But Scalia had previously explained (in his 2004 opinion in Rasul) his legal judgment that non-citizen enemy combatants captured on the battlefield have no right to seek redress in federal court.  The legal import of his statement in Switzerland did not go beyond that.  Moreover, any concern that his legal judgment would be clouded by his son’s experience is refuted by his separate 2004 opinion in the Hamdi case, where he, joined by Justice Stevens, adopted the position most restrictive of executive authority and opined that enemy combatants who are American citizens do indeed have a right to jury trial in American civil courts. 


At bottom, Scalia may well have a certain animus against enemy combatants, but that is the same kind of animus that the law has traditionally shown (and that all Americans should have), and it is also one that Scalia has shown will not improperly affect his legal judgment.


Some further perspective might also be useful.  Justice Ginsburg has publicly stated her regret that the United States has not ratified the 1979 Convention on the Elimination of All Forms of Discrimination Against Women.  Would the question of her recusal from cases involving gender discrimination be affected if she had coupled her statement of regret with the observation that she had a daughter?  I don’t see how that additional observation would affect the analysis.  Ditto for Scalia’s observation.


I’ll have some wrap-up comments in my next post or two under this title.  (Parts 1, 2, and 3 of my response are here, here, and here.)

Tags: Whelan


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