So Who Put the Temper In Judicial Temperament?

040306 article conason So Who Put the Temper  In Judicial Temperament?Antonin Scalia, the loudest mouth on the highest bench, has indulged himself again. The idol of the far right has provoked fresh doubts about his temperament—and this time, unfortunately, the rest of the world is likely to notice.

Surely as brilliant as his admirers claim, Justice Scalia’s intellect is too often overshadowed by aggressive bluster and rigid ideology. He suffers from an uncontrollable impulse to give insult and an insufficient respect for the opinions of others. Widely advertised as exceptionally smart, he sometimes does and says things that are extraordinarily stupid.

On March 26, after receiving communion at a special mass for politicians and lawyers in Boston’s Cathedral of the Holy Cross, Justice Scalia answered a reporter’s question with a rude hand gesture. Asked whether some Americans doubt his impartiality, he replied, “You know what I say to those people?” and then flicked his fingers under his chin, adding, “That’s Sicilian.”

The conservative Boston Herald noted that this incident occurred “just feet from the Mother Church’s altar” and described it as “conduct unbecoming a 20-year veteran of the country’s highest court.” After two decades, Justice Scalia should have learned to speak with a measure of decorum and responsibility. Yet the 70-year-old jurist seems more erratic as the years go by—and his Sicilian sign-language clowning is certainly his lesser offense this month.

A few weeks earlier, he visited the University of Fribourg in Switzerland to deliver a talk on his “originalist” approach to the Constitution. Following his lecture, the combative justice engaged in discussion with the audience—and reacted emotionally to questions about the prisoners incarcerated in military custody at Guantánamo Bay.

As first reported in Newsweek, he bristled at implied criticism of the imprisonment of hundreds of men at the Gitmo facility over the past four years, which he denounced as “hypocritical.” Brushing aside the notion that those detainees should be entitled to any rights guaranteed by the Constitution and by the Geneva Conventions, he was quoted as saying: “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. Give me a break.” He reportedly went on to deny that such persons possess any rights under international treaties. “If [a prisoner] was captured by my army on a battlefield, that is where he belongs,” he said, and went on to mention gratuitously that one of his sons served as an officer in Iraq.

“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,” he said. “I mean it’s crazy.”

He failed to restrain himself, knowing that the Supreme Court would soon be hearing the case captioned Hamdan v. Rumsfeld. In that matter, lawyers representing Salid Ahmed Hamdan, a Gitmo prisoner who once served as a driver for Osama bin Laden, have filed a petition protesting the Bush administration’s decision to try their client in a military tribunal without the rights guaranteed by international treaties.

Like Mr. Hamdan’s lawyers, the Swiss students argued that the Geneva Conventions we ratified long ago mean what they say. Like our other European friends and allies, they think that democratic values are best served by fair and decent treatment of our enemies.

That perspective is shared by several courageous American flag officers and generals, who filed a friend-of-the-court brief endorsing the Hamdan petition. They worry that by depriving our enemies of the “judicial guarantees that are recognized as indispensable by civilized peoples,” as described in Article 3 of the 1949 Geneva Convention, the Bush administration places our own soldiers, sailors and Marines in jeopardy of similar treatment. They also believe that the White House’s wanton violation of the best American military traditions in the name of the war on terror sabotages our struggle against totalitarians and extremists.

After hearing about Justice Scalia’s remarks in Fribourg, the military officers sent him a letter suggesting that he should recuse himself from the Hamdan case. His rant had clearly violated the simple standard for recusal, which is whether a justice’s “impartiality might reasonably be questioned.”

Back in 2004, after Justice Scalia foolishly denounced the separation of church and state at a Knights of Columbus rally, he recused himself from the argument over removing the phrase “under God” from the Pledge of Allegiance. In that case, he knew his vote wouldn’t matter. He refused to recuse himself from the government-secrecy case involving Vice President Dick Cheney’s energy task force, despite their notorious duck-hunting junket.

In the Hamdan case, Justice Scalia’s vote could be crucial. So he showed up for the oral argument on March 28 and openly displayed his support for the government’s position. He thus brought America’s global reputation into further disrepute, when that is what we can afford least.