J$P Instant Transcript! The Judge talks about Justice Scalia and the pending Gitmo case.

From The Big Story, March 28 2006:

JOHN GIBSON [FOX NEWS]: The US Supreme Court began hearing landmark arguments about the rights of Gitmo detainees today. Chief Justice John Roberts has recused himself from the case. He was on an appeals court that ruled against a defendant before he joined the high court. Now some people want Justice Scalia to recuse himself too. Here to talk about the issue, Fox News Senior Judicial Analyst, Judge Andrew Napolitano. First of all, you're throwing our boy Scalia under the bus.

JUDGE ANDREW NAPOLITANO: [laughs] I am not throwing him under the bus.

GIBSON: You're throwing him under the bus. Tell people what he said.

NAPOLITANO: OK, he used words which, if they had been used by a trial court judge or an intermediate level appellate judge, the person would have been removed from the court.

GIBSON: Now he was in Switzerland, giving a speech.

NAPOLITANO: He was in Switzerland, give a speech about ten days ago, and he basically said I've already decided this case, I've already decided that the government is right. Second question, why is that? Well, my son was in Afghanistan--

GIBSON: That isn't what he said.

NAPOLITANO: --and those guys that now want a trial shot at my son.

GIBSON: That is an interpretative version, Judge.

NAPOLITANO: Yeah, it's not literal.

GIBSON: He said, he was asked, do the prisoners at Gitmo deserve the Geneva Conventions, deserve a trial. And he said no, they were captured on the field of battle, I can do anything I want with them--

NAPOLITANO: Why not, Mr Justice?

GIBSON: The second question was, well why not? He said, among other things, they were shooting at my son.

NAPOLITANO: Yeah, so look, here's the rule. If a judge or a justice has formed an opinion about a case, based upon some effect on the family member, you've got to get off the case. In this particular instance, there is no provision to force him off.

GIBSON: But the family member is 250,000 American troops, or 300,000, that have been through the area and gotten shot at by these guys. And doesn't--and your man Scalia, you like him, your man Scalia--

NAPOLITANO: I love the guy. But when you go into a court you expect the judge to have an open mind, not to have decided the case before it's even argued.

GIBSON: OK, but it's going to be argued. There're going to be very persuasive lawyers standing before him.

NAPOLITANO: It happened today.

GIBSON: If they are good, they may convince him.

NAPOLITANO: But remember, their job is not to change his mind from one position to another. Their job is to take him from a position of neutrality and win him over. It's a profound issue that they're talking about. 400 people in Guantanamo Bay filed complaints in Federal District Court saying hey, why am I here? The Congress then rewrote the law, saying you don't have the right to file these complaints any more. You first go through a military tribunal. If you lose, then you can file a complaint. So can the Congress take away their right to seek this relief midstream? That's what the Supreme Court has to decide.

GIBSON: All right, if Scalia should refuse himself, must he?

NAPOLITANO: I think morally he must. Legally he doesn't have to, because legally he is the court of last resort. If you're asking me can the other justices on the court legally compel him to do so, the answer is no. That is an individual decision unique to each justice. Back in the old days, when I was on trial court in New Jersey, had I not recused myself because I thought the outcome might affect my son or brother, my bosses would have kicked me off. But he has no bosses.

GIBSON: Once again, you're throwing our boy Scalia under the bus.

NAPOLITANO: He's a great man; he can deal with this.

GIBSON: Judge Andrew Napolitano, thanks.