Topic: Media

“Nightline’s” Unjust 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 House.

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.

The Event

  • Scalia was at the resort to teach a Continuing Legal Education seminar sponsored by the Federalist Society, as part of a larger meeting of the organization.
  • 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 occasionally judges.

Scalia’s Participation

  • 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 a mystery.

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 hours….amazing.

Scalia’s Compensation

  • 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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