Attack on the Justice
News reporting ineptitude and bias are infuriating, particularly so because
it is often hard to determine which is behind the worst journalistic offenses.
A recent case illustrating this was "Nightline's" hatchet job on Supreme
Court Justice Antonin Scalia, the judge liberals love to hate.
"What was Supreme Court Justice Antonin Scalia doing on the day Chief
Justice Roberts was sworn in?" asked the promotional tease as the TV screen
showed Scalia swatting tennis balls. "Watch Nightline on ABC and find
out!" Trumpeted as an "exclusive investigation," the segment purported
to "expose" impropriety by Scalia, who supposedly missed the official
swearing-in of his Chief ("…an historic occasion attended by every justice
of the Court but for Scalia....") to attend a resort junket bought and
paid for by a conservative organization, the Federalist Society. Somber
ABC reporter Brian Ross set the stage:
Ross: …what some call fact-finding missions, others
call junkets. Judges have their own name for them: they call them educational
seminars held at fancy resorts, all expenses paid by somebody else.
The Ritz Carlton Hotel in Bachelor Gulch, Colo., is one of the country's
top resorts. Famous for its beautiful setting, its fly fishing and its
five-star amenities. That's where Supreme Court Justice Antonin Scalia
was playing tennis on the afternoon of Sept. 29 last year… Justice Scalia
spent three days at the luxury resort. ABC News reporters saw him on
the tennis court, heading out for an afternoon of fly fishing, and speaking
and socializing with members of the group that paid the expenses for
his trip. It was a group whose name Scalia later declined to reveal
when reporters asked him why he skipped the swearing in at the White
The report went on in that vein, implying that the Justice was simply
reveling in the perks of power. A "legal ethics specialist" who thoroughly
disgraced himself during the segment suggested that Scalia's participation
in the event created the "appearance of impropriety."
What follows are the facts, which are actually undisputed though ABC
either misrepresented them or didn't comprehend them.
- Scalia was at the resort to teach a Continuing Legal Education seminar
sponsored by the Federalist Society, as part of a larger meeting of
- Regular attendance at such seminars is required of lawyers in 46 of
the 51 U.S. jurisdictions as a condition of practicing law. They are
often held at resorts, because attorneys hate having to amass the necessary
credits and combining them with recreation ensures better attendance.
- The seminars are usually taught by prominent members of the bar, and
- Scalia arrived at the resort after 11PM on the first day. On the second
day he taught his seminar, attended a reception and dinner, and played
tennis. He left at 6:30 AM of the morning after the seminar. This…a
late night arrival, a day of participation, and an early morning departure
for the airport, is what Nightline referred to as spending "three days"
at the resort.
- Justice Scalia's materials for his course were 481 pages long. He
taught for 10 hours, all in the one day he actually stayed
at the resort.
- How he found the time, not to mention the energy, to play tennis is
Some perspective is in order here. This is a topic of which I have intimate
knowledge. I teach CLE seminars for a living, and I frequently teach them
at resorts as posh or posher than the Ritz. Except that the rooms are
nice and the food is good, I might as well be teaching them at a Motel
6. My typical schedule is identical to Scalia's: in late at night, work
the next day, and leave in the morning. It is work, not play.
It is exhausting. For ABC to characterize such a trip as a "junket" can
only be ignorant or malicious.
But that's not all: my seminars are usually three to four hours long,
and that is enough to leave me ready for a nap. Scalia taught for ten
- Nothing; Justice Scalia received no fee. "Ah," implies crack reporter
Ross, "but they paid for his stay, and meals and transportation at the
ritzy Ritz!" Well, it's hard to teach somewhere without flying there,
eating there and sleeping there. I get the same deal when I teach; everyone
does. Does ABC really think that a speaker who holds a formal seminar
for an organization should have to pay their own expenses? Does Brian
Ross pay his expenses when he's working?
- Yes, it's true: I get a fee and expenses when I teach my
brief three-hour legal ethics seminars, and I only provide about 30
pages of material. And my fees are low, compared to many of my colleagues.
Scalia taught seven more hours, and provided 450 more pages of materials
without any fee…and he's a Justice on the Supreme Court. If
he was trying to exploit his high office for personal gain as "Nightline"
suggests, he certainly botched the attempt. This was no "free trip"
or "judicial junket."
Scalia's Association with the Federalist Society
- "Nightline's" legal ethicist accused Scalia of "using the prestige
of his office to advance the interest of a group with a decided political/judicial
profile." No similar objection was ever leveled at Sandra Day O'Connor
and other Justices who have attended American Bar Association events,
yet the ABA has apolitical/judicial profile. So does the ACLU, the NAACP
and other groups that have quite appropriately had Supreme Court Justices
speak to their membership. Is "Nightline's" beef that the Federalist
Society is a conservative legal group? Or is it just Scalia
it objects to?
- "Scalia's trip did not violate the Supreme Court ethics code because
there is no Supreme Court code of ethics," Ross "explained." No, Scalia's
trip did not violate any ethics code because there wasn't anything unethical
about it. As Professor Ron Rotunda from George Washington University
(a legal ethicist who actually comprehends ethics, unlike ABC's "expert")
pointed out during one of the fleeting sound bites it allowed to "balance"
its attack, "The organization doesn't have litigation before the judge.
It's unlikely to have litigation before the judge." Scalia's conduct,
concluded Rotunda, didn't violate any judicial ethics rules.
- In its most outrageous attempt to smear Scalia (there is no other
way to describe it), Ross actually noted that a cocktail reception Scalia
attended was sponsored "in part" by "the same lobbying and law firm
where convicted lobbyist Jack Abramoff once worked." Not that anyone
has suggested that this firm has done anything illegal, improper, or
unethical. Not that the firm has any business with Scalia, or that its
clients do. Not that attendees at group cocktail parties usually know
or care who sponsors them (they usually don't), or that being listed
along with several other sponsors confers any prestige or prominence
whatsoever. Nonetheless, "Nightline" implied that (pay attention now)
because Jack Abramoff (who is bad) once worked for
a law firm, that firm is tainted, and because that law firm
is one of the sponsors of a reception, that reception is tainted,
and because Scalia attended the reception, he is tainted.
Apparently ABC thinks that Abramoff is like a virus: if Scalia goes
to a barbershop now, his barber will be tainted, and then when
the barber goes home to his kids…
Scalia's Absence at the Swearing-in
- Nobody could predict when Roberts was going to be confirmed and sworn
in as Chief Justice until about a week before the ceremony. Scalia's
commitment to the Federalist Society was more than a year old. He had
prepared the extensive materials. The promotion for the event relied
heavily on Scalia's presence; his seminar was the most time-consuming
and substantive part of the program. If he had withdrawn only a week
before, the consequences to the group would have been horrific.
- Scalia's absence at the swearing in was noted, but had no consequences
whatsoever…except ABC's contrived "investigation," which only hurt Scalia,
and the credibility of ABC News.
- What's the ethical thing to do? Obvious, isn't it? It would have been
unconscionable for Justice Scalia to break a year-long commitment upon
which the hosting organization had based its event. Yet ABC and its
legal ethicist attempted to make the case that Scalia had "snubbed"
Chief Justice Roberts because he was goofing off in the sun, playing
tennis, drinking…and teaching a ten hour CLE seminar in one day.
One thing is beyond dispute: ABC's misrepresentation of the facts and
its over-heated efforts to impugn Scalia's conduct were inexcusable, regardless
of whether they were the result of hostility to Scalia and his judicial
ideology or due to rank incompetence. Usually in such situations the best
analysis would be that it was a little of both, but that does not seem
to be the case here. This was a lot of both, and it shows American
TV journalism at its most inept, unfair and unethical.
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