Ethics, Schmethics

Surprise, surprise. Supreme Court Justice Antonin Scalia has already made up his mind about the Guantanimo Bay enemy combatant cases. And he's in favor of lifetime detention without the right to counsel. How constitutional.

WaPo: No Legal Rights for Enemy Combatants, Scalia Says
'War Is War,' Justice Tells Audience

Supreme Court Justice Antonin Scalia reportedly told an overseas audience this month that the Constitution does not protect foreigners held at the U.S. military prison at Guantanamo Bay, Cuba.

He also told the audience at the University of Freiburg in Switzerland that he was "astounded" by the "hypocritical" reaction in Europe to the prison, this week's issue of Newsweek magazine reported.

New Chief Justice John Roberts has already recused himself from the cases, as he was a member of the federal appeals court panel whose decision is under review.

Odds of Scalia recusing himself from hearing these cases, about which he has already made up his mind and announced his position publicly? That would be about a gazillion to one. Sheesh, Scalia didn't even recuse himself from the case involving Cheney's secret energy task force meetings after he went duck hunting with Dick Cheney. (He's lucky he's still alive, but that's a separate matter. Or is it? Maybe he didn't recuse because Big Time threatened to give him the Harry Whittington treatment. Hmmmm.)

Ethically, of course, he should recuse himself.

U.S. high court judge said to slam detainee rights

Ethics experts said the impression that Scalia had already made up his mind before the hearing should mean that he will voluntarily drop out of the proceedings. However, Newsweek said he did not refer specifically to this week's case.

"He should remove himself when there is a reasonable doubt of his impartiality," said Father Robert Drinan, a professor of law at Georgetown University and long-standing human rights campaigner, who teaches judicial ethics.

"It should logically be a reason for his recusal but I don't think he'll do it ... he's so stubborn" said Drinan.

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"A judge has to have an open mind; when he hears the articles and reacts to briefs. If he's made up his mind on a particular issue, he shouldn't be sitting (in)," said Michael Ratner, president of the Center for Constitutional Rights.

"Here he has publicly said that this is what my position is, before the arguments ... It's really stacking the deck," Ratner said. CCR has argued for Guantanamo prisoner rights.