United States Supreme Court Justice Antonin Scalia has received a lot of bad press lately.
The Boston Herald reported last month that Scalia made an “obscene gesture” on the steps of Boston’s Cathedral of the Holy Cross.
Scalia exited the cathedral after celebrating Mass when a Herald reporter asked how the justice responds to people who question his impartiality in matters of church and state.
Scalia responded by “flicking his hand under his chin” and adding, “That’s Sicilian.”
A photographer working for the Boston Archdiocese newspaper, the Pilot, captured the incident. Scalia said to him, “Don’t publish that.”
Of course, it was. At the Boston Herald alone, no less than 10 stories, columns and letters to the editor have been published about “Scalia’s flick-off.”
There was a story about the archdiocese newspaper firing the photographer who allowed the Boston Herald to publish photos of the flick.
Scalia wrote a letter to the editor in which he stated that his flick was misinterpreted by the Boston Herald staff, who has been “watching too many Sopranos episodes.”
But Justice Scalia didn’t stop with just flicking-off a few reporters, not when there are Guantanamo detainees and Europe to deal with.
After a taped recording of Scalia’s remarks to students at the University of Freiburg in Switzerland on March 8 were published, demands for his recusal from Hamdan v. Rumsfeld, a case brought before the court by Osama bin Laden’s former chauffeur challenging the military commission the Bush administration created to try terror suspects for war crimes, were coming from right and left.
In his speech at the University of Freiburg, Scalia said it was “crazy” to suggest those detainees held at Guantanamo Bay, Cuba, are entitled to a jury trial in a U.S. civil court. Scalia also added that he was “astounded” by “hypocritical” assertions from Europe that captured combatants should be tried by “full jury.”
In response to Scalia’s remarks, five retired military officials filed a friend-of-the-court brief on March 27 asking for Scalia to recuse himself because, they said, his comments gave the appearance that “he had already made up his mind” about the issues of the case and a possible “personal bias arising from his son’s military service.”
Calls for Scalia’s recusal have also come from Michigan Rep. John Conyers, the ranking Democrat on the House Judiciary Committee, and from various civil and minority rights organizations.
In a CNN clip of Scalia’s lesser publicized remarks from March 8, the justice told students, “Question comes up: Is there a constitutional right to homosexual conduct?
Not a hard question for me. It’s absolutely clear that nobody ever thought when the Bill of Rights was adopted that it gave a right to homosexual conduct. Homosexual conduct was criminal for 200 years in every state. Easy question.”
Human Rights Campaign President Joe Solmonese commented on Scalia’s statement. “Justice Scalia stubbornly refuses to see that all Americans have a right to liberty and privacy under the law,” Solmonese said.
He continued, “This is just the latest example of why it’s so critical that fair-minded Americans think of the court when they head to the ballot box.”
Solmonese’s suggestion is a great one worth considering because judges in the high courts and the low are often appointed by politicians.
My personal response to Scalia’s comments is to raise my hand, index and middle fingers extended, and jerk it upward – it’s Irish, and has the same meaning as more familiar finger gestures.
Justice Scalia is serving a life term, like it or not. All of the recent demands for his recusal aren’t much if Scalia ignores them, and he can.
The rule of law says recusal from a case is completely up to the judge’s personal discretion.
Along with his renowned wit and legal expertise, Scalia could bring any personal or political bias he wants to his Supreme Court judgments and there’s nothing we can do about it.
Natalie Lavelle can be reached at email@example.com.