O’Reilly’s Convenient Flip Flop on Recusals

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).

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  • eamick

    It’s Kagan, not Sotomayor, who officiated at a same-sex wedding.

  • Donnie

    Supreme Court justices should only recuse themselves when they or a member of their family has a direct stake in the outcome.

    So Justice Scalia should have recused himself from the planned parenthood zones because his wife was a ‘sidewalk counselor’. Just curious on your opinion? Obviously, I would say “Yes”. However, Supreme Court justices rarely recuse themselves believing that they are the pillars of neutrality (the Druids of D&D world). Of course, we know that is not true.

  • Donnie

    forgot the term, “The planned parent buffer zones”

  • Mobius

    So if any of the Justices have officiated at different-sex weddings, does O’Reilly think that those Justices should recuse themselves?

    Of course not.

    Nuff said.

  • Alverant

    Should Scalia have recused himself from the Bush/Gore decision because he was appointed by Bush’s father? What about Thomas’s wife being employed by a company that had a case before the USSC?

  • John Pieret

    I think this is mostly a set-up (probably not by BillyO, he ain’t that bright, but by the wingnuts who started it) to argue in the future that the SCOTUS decision was “invalid” and, therefore, send us money!

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    You nutty far-left nutty pinheads are wrong on all points where you and I disagree. I don’t even need facts to know that. You should recuse yourself from America and cede matters of Constitutional Law and morality (really, the same thing) to us Conservatives, as the Founding Fathers intended.

  • steves

    I do believe that in 2000, when Clarence Thomas’s household (via his wife) was getting paid by the Heritage Foundation to gather resumes for appointments to a possible Bush administration, Thomas should have recused himself. He was not ethical enough to do that. By the way, Breyer later tried to defend Thomas with a completely bogus analogy – since Breyer’s wife is a psychologist, does that mean Breyer should recuse himself on all psychology cases? Well, if a particular psych case involved finding for or against a company for which his wife’s employer was paying her to gather resumes, yes Breyer should recuse himself.

  • anubisprime

    John Pieret @ 6

    Exactly my thoughts, for what they are worth, in fact said precisely the same thing in a roundabout way on an earlier thread….

    They are preparing the fall-back position…that’s all it is!

  • lvap

    (hell, I can predict their votes with about 95% accuracy in most cases).

    To be honest, I’ve kinda wondered why Scotus bothers having oral arguments at this point. Do these arguments actually change anyone’s mind?

    Are they required to have oral arguments, or is it just theater? If it’s just theater maybe Thomas is the smartest one there since he can just sleep or play solitaire during the whole thing.

  • frankgturner

    You know as human beings they have feelings and could potentially be biased. So perhaps they should recuse themselves on everything and appoint replicants to SCOTUS. Not the Nexus 6 ones, having a programmed past leads to immitation of emotion and therefore potential bias. This is brought to you by a Nexus 6 replicant.

  • StevoR

    @ ^ frankturner : Actually I thought androids could dream of electric sheep and show quite a lot of emotion?