Bill O'Reilly has called on Supreme Court Justices Ruth Bader Ginsburg and Elena Kagan to recuse themselves from the upcoming marriage equality cases -- even though neither justice has confirmed how they will rule. But in 2006, the Fox News host took the opposite position when it came to Justice Antonin Scalia, despite the fact that O'Reilly admitted a speech the conservative justice gave on a pending case made it “obvious” how he would vote.
On the April 21 edition of The O'Reilly Factor, O'Reilly complained that, because Justices Ginsburg and Kagan had officiated four same-sex marriages, “these ladies have to recuse themselves.” Even though neither justice has spoken specifically on the merits of the same-sex marriage cases -- a situation that could trigger a need for a recusal -- O'Reilly nevertheless claimed that they were “not impartial” due to their participation in same-sex wedding ceremonies, and that their refusal to step down “is what unlimited power looks like.” The following night O'Reilly doubled down at the end of his show, and described the logic of a viewer who agreed with him as “impeccable,” declaring the liberal justices' acts a “blatant conflict of interest.”
But O'Reilly felt quite differently about the standards of recusal in 2006, when he claimed that only the “nutty left” wanted Scalia to recuse himself in Hamdan v. Rumseld, 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 at the University of Freiberg 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.” As Isikoff explained, "[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” :
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.