Ethics

According to the NYT, Scalia said on BBC Radio that it would be ?extraordinary? to understand the Eighth Amendment to mean that ?so-called? torture could not be used in the face of an imminent threat.  He said that the Amendment refers only to ?punishment for crime.?  He added that it would be ?absurd? to say that you can?t ?smack someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles.... And once you acknowledge that, we?re into a different game.?

I understand Scalia to be saying in those quotations that the Eighth Amendment applies only after one has had due process, but that it has no relevance prior to a judicial determination of guilt.  It appears to me also that he is prepared to assume that the person who is being tortured is indeed guilty of having hidden the bomb, because the interrogators say that he is guilty.

A colleague sent the following email:

I thought (based largely on behavior of nominee judges before the Senate) that one of the serious restrictions on judges was not to comment on cases or matters that might come before them.  In that light,  might not the constitutionality of torture, or at least the power of the Executive to order torture in support of national security, be questions likely to come before the Supreme Court?  Doesn't that make Scalia's comments, (point of view aside) inappropriate?

I responded:

Nominees are not required to decline to answer questions.  They use that to avoid appearing to have prejudged an issue and/or to avoid alienating senators by their positions.  Scalia has stated for the Court that a candidate for a judgeship has a constitutional right to announce a position on a disputed issue of law.  See Minnesota Republican Party v. White.

I agree with Scalia's view (Ibid.) that judges retain First Amendment rights.  However, his gratuitous comment on a critical issue in an impending case, appears to indicate that he has prejudged the issue without the benefit of adversarial presentations and that his mind is not open to persuasion to the contrary (?extraordinary,? ?so-called torture,? "absurd").  Thus, a reasonable person might question his impartiality.  That is ground for mandatory recusal under a federal statute and under the Due Process Clause (both of which Scalia has violated in the past with impunity).

Scalia might say that any prejudging on his part was with regard to an issue, not a party, and that only the latter requires disqualification.  However, he has acknowledge (Ibid.) that a position on an issue can constitute, or appear to be, a bias against a party or class of parties.  Here, the apparent bias is against those suspected or charged with being involved in terrorist activities.

This is almost certain to be another case in which Scalia disregards his statutory obligation on specious grounds.