Bill O’Reilly has been demanding that Justices Ruth Bader Ginsburg and Sonia Sotomayor recuse themselves from the same-sex marriage cases because their participation in perfectly legal gay weddings reveals how they’re going to vote. So let’s set the wayback machine a few years and see what he was saying in a similar situation involving Scalia.
Shortly before the Supreme Court was going to take up the case of a Guantanamo Bay detainee named Salim Ahmed Hamdan seeking judicial review of his detention, Scalia gave a talk at which he mocked the very idea that one could be granted such review. When some called for Scalia to thus recuse himself, O’Reilly dismissed them and called them the “nutty left” for even suggesting such a thing:
O’REILLY: Finally, chief justice — not chief justice but Supreme Court Justice Antonin Scalia made some comments about how captured terrorists should be treated by the USA. Now, the Supreme Court is going to hear — going to hear a case where the crazy left wants all of the captured terrorists to be tried in civilian court, no matter where they’re caught. This is insane. But that’s what the far left wants. Now, Scalia was in Switzerland and said this.SCALIA (audio clip): We are in a war here capturing these people on the battlefield. We never gave a trial in civil courts to people captured in war. We captured a lot of Germans during World War II, and they were brought not to Guantánamo, but to the soil of the United States. We didn’t give them a trial.
O’REILLY: All right, so obviously, Scalia’s not going to vote for civilian trials for terrorists, and I don’t think most of the other Supreme Court people will either. But now, the nutty left wants Scalia to recuse himself from the vote. You know, it’s just the same — on and on and on and on. But these nuts — aye-aye-aye.
There is hypocrisy on the other side too, of course. Many liberals demanded recusal then and dismiss it now. But I’ve been very consistent on this and the argument for recusal in both cases is so weak as to be non-existent. Supreme Court justices should only recuse themselves when they or a member of their family has a direct stake in the outcome. It isn’t enough that they have expressed a viewpoint on a case or that their vote is predictable (hell, I can predict their votes with about 95% accuracy in most cases).