Scalia, Hamdan, and Recusal
Marty Lederman’s measured discussion on SCOTUSblog of a possible recusal question involving Justice Scalia and the Hamdan/military commissions case is generating much less measured reactions on the blogosphere. Lederman asks the sensible question whether the same grounds that led Scalia to recuse himself from the Newdow/Pledge of Allegiance case a couple terms ago might lead him to recuse himself in Hamdan. I strongly suspect that the answer is no.
Many folks were surprised that Scalia believed himself obligated to recuse in Newdow. The mere fact that a justice has made public comments that would or might have some bearing on a case that comes before the Court has never been regarded as requiring recusal. What distinguished Scalia’s comments regarding the Pledge of Allegiance — and what I strongly believe led to his decision to recuse — is that Scalia commented directly on the lower-court ruling that later came before the Court. By contrast, the comments that Scalia made in Switzerland that would or might have some bearing on Hamdan were not (from Lederman’s account) directed at the ruling below in Hamdan.
One can quarrel whether this formalist line is sensible. But anyone who thinks it isn’t would either end up concluding that Supreme Court justices for decades have been failing to recuse in lots of cases where they should or, far more plausibly, that Scalia should not have recused himself in Newdow.