What Scalia ought to do is step down altogether. He knows a judge has no business publicly stating which way he will decide on a case. The idea is that he's supposed to listen to the arguments and THEN decide, though I know in Republican-land that's considered a bit of an old chestnut, deciding on the facts FIRST then acting.
From ThinkProgress:
This week, the Supreme Court will hear arguments on whether the special military commissions created by the Bush administration to try Guantanamo detainees violate national and international law, as human rights groups charge.
But Justice Antonin Scalia doesn’t have to wait for arguments — his mind is already made up. Newsweek reports that in a controversial unpublicized March 8 speech, Scalia “dismissed the idea that the detainees have rights under the U.S. Constitution or international conventions.”“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 says on a tape of the talk reviewed by NEWSWEEK.
“Give me a break" - challenged by one audience member about whether the Gitmo detainees don’t have protections under the Geneva or human-rights conventions, Scalia shot back: “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 was apparently referring to his son Matthew, who served with the U.S. Army in Iraq.
