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Bench Memos

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Re: Scalia, Hamdan, and Recusal



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I’m with Brother Whelan on this one. Press reports in January 2003 had Scalia apparently referring pretty explicitly to the Newdow case then on its way up from the Ninth Circuit, whereas his more recent comments can be seen as reiterating his published views in Rasul v. Bush and not as forbidden commentary on Hamdan.

Of course, thanks to just the passage Ed quotes from his Lee v. Weisman dissent, I argued here at NRO in October 2003 that Scalia needn’t recuse himself in the Newdow case. (This was in response to Robert Alt, who saw things differently.) My arguments there will serve as well or better in this instance. And if he didn’t need to recuse there, Scalia certainly doesn’t need to recuse here in Hamdan.

Would it be amiss to speculate out loud that folks in the “Scalia must recuse” crowd have far less concern for the integrity of the judicial process than they have a burning desire to win the case at all costs and strike a blow against President Bush?



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