Should Scalia Recuse Himself from Hamdan?

Regarding the upcoming oral argument in Hamdan, the Guantanamo detainee case before the Supreme Court, the following is from CNN (citing to Newsweek):

U.S. Supreme Court Justice Antonin Scalia dismissed the idea that Guantanamo detainees have constitutional rights and called European concerns over the issue hypocritical, Newsweek magazine reported Sunday.

The comments, which Newsweek said were recorded at a private appearance by Scalia in Switzerland on March 8, emerge before a Supreme Court hearing this week on a legal challenge by a Guantanamo prisoner against U.S. military tribunals.

“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,” Scalia said in the talk at the University of Freiburg, according to Newsweek. “Give me a break.”

Court officials were not immediately available for comment.

Ethics experts said the impression that Scalia had already made up his mind before the hearing should mean that he will voluntarily drop out of the proceedings. However, Newsweek said he did not refer specifically to this week’s case.

“He should remove himself when there is a reasonable doubt of his impartiality,” said Father Robert Drinan, a professor of law at Georgetown University and long-standing human rights campaigner, who teaches judicial ethics.

“It should logically be a reason for his recusal but I don’t think he’ll do it … he’s so stubborn” said Drinan.

Scalia is also reported as saying:

“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.”

Scalia’s son served with the U.S. Army in Iraq.

Chief Justice Roberts has already recused himself due to having ruled on the case as a member of the DC Circuit Court of Appeals. I would be surprised if Scalia recused himself. I think as a matter of ethical conduct he should do so because it seems quite likely that he has made up his mind on the key issues. But I agree with Fr. Drinan that, given Scalia’s past refusal to recuse himself, he is unlikely to do so here. Hey, all’s fair in (love and) war, right?