“These ladies have to recuse themselves,” an indignant Bill O’Reilly proclaimed on his Fox News show recently. “I’m shocked they haven’t done it already.”
The “ladies” he was referring to were Supreme Court Justices Ruth Bader Ginsburg and Elena Kagan, both of whom have officiated same-sex weddings in the past. O’Reilly wants the two justices to remove themselves from a group of pending cases challenging anti-gay marriage discrimination.
That would give the justices who dissented in the Supreme Court’s 2013 decision striking down such discrimination at the federal level a 4-3 majority — most likely changing the outcome of the case.
O’Reilly’s attempt to pressure justices who are likely to support equality off a major gay rights case is not a new strategy. The American Family Association (AFA), a leading anti-gay group, called for both justices to recuse the very same day that the Court announced that it was taking up marriage equality last January.
As Media Matters mentions, O’Reilly felt quite differently about the standards of recusal in 2006, when he claimed that only the “nutty left” wanted Justice Antonin Scalia to recuse himself in Hamdan v. Rumsfeld.
That was a case brought by a Guantánamo Bay prisoner who argued that his detention after 9/11 violated his rights under military and international law.
On March 8, 2006, just weeks before the Court heard oral arguments in Hamdan, Scalia gave a speech in Switzerland, where he asserted that people who had been designated as enemy combatants — like the prisoner in the Hamdan case — could not enforce their rights in federal court.
According to a report from Michael Isikoff who broke the story for Newsweek, Scalia stated that “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.”
In response to an audience member who asked whether detainees had rights under the Geneva Convention – one of the exact issues raised in Hamdan – Scalia replied, “I’m not about to give this man who was captured in a war a full jury trial. I mean it’s crazy.”
Isikoff stated, “[t]he comments provoked ‘quite an uproar'” because the case hadn’t been heard yet, but Scalia had “already spoken his mind about some of the issues in the matter.”
Quoting Stephen Gillers, a professor of law and legal ethics expert, Isikoff added: “As these things mount, a legitimate question could be asked about whether he is compromising the credibility of the court.”
Yet on the March 28, 2006, edition of The Radio Factor, O’Reilly pushed back on the “legitimate question” of recusal, even though he admitted the comments indicated “Scalia’s not going to vote for civilian trials for terrorists.”