One well-known aspect of Justice Antonin Scalia's persona that I failed to versify in Smells Like Scalia (a title, incidentally, that was originated by another Law Revue writer and intended by him to be about the supposed similarities between Scalia and Alito) is his tendency to get embroiled in disputes about whether he can bring the correct open-mindedness to oral argument after having said or done something that brings his disinterest into doubt. Scalia recognized that he already had judged the Pledge of Allegiance case by deriding the lower court's ruling publicly, and recused himself without prompting beyond Newdow's request. In the Cheney matter, he scathingly refused to do so, and the litigants were not so foolhardy as to claim that Justice Scalia had evinced any actual bias during arguments; much of the push for recusal was based on the appearance of impropriety. Now Newsweek is trying to drum up a debate: Should Scalia Recuse Himself from Gitmo Case?
I wondered who else had excused themselves from oral arguments lately. Chief Justice Roberts already is out of the Hamdan case, having ruled on it as a DC Circuit judge, and recused himself from Laboratory Corp of America v. Metabolite Laboratories (without explanation, but probably because of his lengthy employment with the firm representing the appellant). In a 2001 case on California cannabis and 2004 Olympic Airways v. Husain, Justice Breyer recused himself because his brother, Charles R. Breyer, was the District Court judge who originally heard the suits. O'Connor and Breyer recused themselves from several procedural matters and a couple of substantive ones due to their owning stock in the companies involved, O'Connor doing so sufficiently often that Baker Botts dubbed it the OOPS (O'Connor Owns Party's Stock) docket. Ginsburg has been criticized for failing to do the same when her husband had those companies in his IRA. However, there don't seem to be any recent instances of judges' recusing themselves because they seemed to have pre-judged a case other than Scalia in Newdow.
This exception probably will remain one. There Scalia specifically remarked on the lower court's ruling that would be appealed to the Supreme Court, whereas he does not seem to have mentioned the Hamdan case specifically, only that combatants are not entitled to regular trials instead of military commissions. (A point on which I would agree if we could figure out to what they are entitled -- POW protections, including the Uniform Code of Military Justice? some new status defined by Congress? "Whatever the president feels like" is not an acceptable answer.) His exact words, as transcribed by Newsweek, were, "If he was captured by my army on a battlefield, that is where he belongs. I had a son on that battlefield and they were shooting at my son and I'm not about to give this man who was captured in a war a full jury trial. I mean it's crazy." This actually doesn't fit Hamdan very well, considering that he's alleged to have been a bodyguard and driver for bin Laden, not a fighter; and that his lawyers claim that he was trying to get out of Afghanistan and return to his family in Yemen when he was captured by Afghans. An attempt to get Scalia to recuse himself on this case is doomed to failure.
UPDATE: From the Washington Post -- "A] group of retired U.S. generals and admirals has asked Justice Antonin Scalia to recuse himself, arguing that his recent public comments on the subject make it impossible for him to appear impartial. In a letter delivered to the court late yesterday, a lawyer for the retired officers cited news reports of Scalia's March 8 remarks to an audience at the University of Freiburg in Switzerland."
UPDATE II: I don't even know what to say about this. Outside a church, too!