Thursday, February 14, 2008


Scalia speaks; People gasp

Justice Scalia was back in the news again because he opined an opinion that many don’t like. Scalia Weighs in Again on Controversy

One comment:

So what?

In this instance, “Scalia said that determining when physical coercion could come into play was a difficult question. "How close does the threat have to be? And how severe can the infliction of pain be? I don't think these are easy questions at all, in either direction," he told the BBC's "Law in Action" program.”

AP writer Mark Sherman immediately concludes that despite such ruminations, Justice Scalia would probably not be recusing himself from any case touching this matter that may come before the Court…without also speculating as to why that should even be a consideration. Because, as even he notes, “[i]t is rare for a justice to take himself out of a case because of such public comments.”

Side Notes: The writer then helpfully gives us other examples of Justice Scalia’s intemperance including:

“In 2006, a few weeks before the court heard arguments over the rights of detainees at Guantanamo Bay, Cuba, Scalia told an audience in Switzerland that the Constitution doesn't protect foreigners who are held there…

“He ignored a request from five retired generals to withdraw from the case and dissented from a ruling in favor of the detainees.”

I realize to much of the working press military-types all look alike but for the sake of accuracy, the request came from TWO retired generals and THREE retired admirals. And the Justice was correct to ignore their ill-founded request. Let’s not also forget that the detainee was Hamdan and the ruling in his “favor” was merely the Court rejecting the operations of the military tribunals established to hear Hamdan’s case. The rules were changed (does that mean Congress also dissented from the ruling?); Hamdan remained in custody and, in fact, had a pre-trial hearing just last week: Judge Mulls Bin Laden's Driver Request

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