Ups and downs

1) The good news: scientists have cloned pigs with omega-3 fatty acids, the same little whatsits that are supposed to be good for your heart, and which fish like salmon and tuna have in plenty. Ignoring the fact that whatever benefits omega-3 fatty acids grant may be canceled out by the unchanged amounts of saturated fats and cholesterol in bacon, I look forward to the brave new world of the healthy pig. But, every scientific advance, from the plow to the internet, has had its naysayers:

And government approval for such genetically modified foods is certain to face monumental opposition from some consumer groups. Some already object to feeding farm animals genetically modified grain, and genetically modifying the animals themselves and cloning them would be "a double whammy," said Joseph Mendelson, the legal director for the Center for Food Safety, a nonprofit group that opposes the use of genetically engineered products. "I am confident that consumers would not want them."

Slow down there, Captain Consumer Advocate! I don't care if they breed pigs that look like 3-foot-tall Jemmy Madisons that can squeal the Marseillaise: if they're not sentient, taste delicious and have omega-3 fatty acids, I'll buy it. Keep your sweaty hands off my omega-3 bacon, Joe!

[Edit: I just looked more closely at the page I yanked that image of the bacon sandwich from: good lord is that a big bacon sandwich.]

2) Interesting sidebar in the Washington Post yesterday: Justice Scalia has been known to say some outre things at university or law school speaking engagements, and apparently his talk before the University of Freiburg, Switzerland, was no exception. Here's the relevant quote:

Newsweek said Scalia was challenged by an audience member in Switzerland about whether Guantanamo Bay detainees have protection under the Geneva or human rights conventions.

Scalia replied: "If he was captured by my army on a battlefield, that is where he belongs. I had a son on that battlefield and they were shooting at my son, and I'm not about to give this man who was captured in a war a full jury trial. I mean it's crazy," Newsweek reported. (CITE)

Having just taken a relatively lax examination on professional responsibility, that jumped out at me in relation to judicial recusal:

recuse

v. to refuse to be a judge (or for a judge to agree to a request by one of the parties to step aside) in a lawsuit or appeal because of a conflict of interest or other good reason (acquaintanceship with one of the parties, for example). It also applies to a judge or prosecutor being removed or voluntarily removing himself/herself from a criminal case in which he/she has a conflict of interest, such as friendship or known enmity to the defendant. (CITE)

Just on the face of it, it seems to me that Justice Scalia's personal stake in terrorism cases might lead to an impermissible bias or the perception of bias on his part. (Such as, say, the case set for argument tomorrow, Hamdan v. Rumsfeld) The fact that he has a son in military service, and that he identifies the risk his son incurs in his son's military service with denial of jury trials to "enemy combatants" is troubling to me. It seems unlikely that any litigant captured in a warzone with links to terrorist groups will receive a fair hearing on the merits before Justice Scalia; in part because of Justice Scalia's quite understandable attachment to and affection for his son.

I hope that I myself am unbiased by the fact that this just happens to be Justice Scalia, and not, say, Ruth Bader Ginsburg. I do not think that the mere fact that Justice Scalia has a son in the military service should disqualify him. But this statement seems to be the next best thing to a smoking gun: not that, I'm sure, anything will come of it, as we will see.

As Gus points out, recusal and when to recuse oneself is not precisely a bright-line legal doctrine:

Generally speaking, it's a really vague standard. Something along the lines of "whether a reasonable person, knowing all the facts and circumstances, would conclude that the judge's impartiality might reasonably be questioned." There are also some statutory situations where a judge must disqualify himself (relationships to litigants, where the judge was a lawyer in the same matter, etc.) 28 USC 455(?)

Also, there are good procedures in place for appellate review of a judge's refusal to disqualify himself. For instance, you can get an interlocutory appeal from the order denying a motion for disqualification and the harmless error rule does not apply. In other words, if a reasonable person would question the judges impartiality, he shouldn't be on the case. (Theoretically, but see Cheney v. US Dist. Ct. for DC, 541 U.S. 913 (2004) for proof that its okay for a Supreme Court Justice to fly on the VP's plane to go on a hunting trip with him and then hear a case where the VP is a party so long as the VP's "personal fortune or personal freedom" is not at issue.)

so I like to think of myself as a reasonable person, but I'm guessing that the courts in this case will be more lenient than I would be. What would be really interesting is if a detainee claimed he had Matthew Scalia in his sights, an event which, of course, I hope never occurs.

One last note--I had understood that the defendant that Scalia seems to be talking about, Salim Ahmed Hamdan, was captured in Afghanistan, while Matthew Scalia's overseas deployment took place in Iraq. So, in point of fact, Scalia did not exactly have a son "on that battlefield." Am I wrong?

[UPDATE: SCOTUSblog picks up on Scalia's comments--and does a much better job. A winnar is me!]