Men stumble over the truth from time to time, but most pick themselves up and hurry off as if nothing happened. -- Winston Churchill

All truths are easy to understand once they are discovered; the point is to discover them. -- Galileo Galilei

I never give them hell. I just tell the truth and they think it's hell. -- Harry Truman

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Monday, March 27, 2006

Should Supreme Court Justices Shut Up?

Newsweek reported on Justice Scalia's remarks in Switzerland at the University of Freiburg, in which he essentially ridiculed the proposition that terrorist detainees had rights for civil legal protections.

"War is war, and it has never been the case that when you captured a combatant you have to give them a jury trial in your civil courts," he is quoted as saying. "Give me a break." Asked whether Guantanamo detainees have any rights under international conventions, Justice Scalia reportedly answered:

"If he was captured by my army on a battlefield, that is where he belongs. I had a son (Matthew Scalia) 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." Mr Scalia is also quoted as saying he was "astounded" at the "hypocritical" reaction in Europe to Guantanamo.


Critics are saying that his remarks compromise his ability to hear the upcoming Salim Ahmed Hamdan case which appeals against the right of President Bush to order that detainees be handled in military tribunals. Justice Scalia is not a man that suffers fools gladly, and often speaks in refreshingly plain, common sense terms. Does that mean he is somehow violating judicial ethics when he does so?

If he were to comment on specific cases coming before the court, he would be compromising his position. But to suggest that expressing himself on basic issues in general is ludicrous. That is tantamount to advocating that a judge who states that murder is wrong and that those who commit them should be punished, renders that judge unfit to sit on murder cases.

Casual observers of the Supreme Court are often disappointed when Justices issue decisions contrary to their personal beliefs. They don't understand that most Justices do an amazingly good job of rendering opinions based on points of law, rather than their own biases. At least those that oppose judicial activism practice such restraint.

The belief that Justices have sacrificed their 1st Amendment rights probably reflects the deterioration of Senate confirmation proceedings. Nominees now routinely invoke not wishing to comment on cases that might come before the court as a way to avoid entrapment of partisan got you games. For the most part, confirmations are dog and pony shows in which Senators demagogue and posture, rather than a substantive exploration of judicial views and constitutional issues. It's an unfortunate casualty of the overall political state of affairs.

Personally, I give Justice Scalia high marks for not pandering to a European audience, and both speaking truthfully and calling them on their hypocrisy. We have had quite enough examples of Americans who go overseas and undermine American interests in their speeches.

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