Tripping up on junk
Posted by Scott
Power Line
I believe it started with a January 20 New York Times editorial observer column by Dorothy Samuels: "Tripping up on trips: Judges love junkets as much as Tom Delay does."
Nightline appears to have picked up the story idea from the Times and assigned it to Brian Ross for a January 23 broadcast: "Supreme ethics problem?" Nightline investigated the bombshell question:
<<< "What was Supreme Court Justice Antonin Scalia doing on day of Supreme Court swearing-in." >>>
Answer: Teaching a long-planned two-day course on the separation of powers for lawyers from around the country.
From the Nightline story came a rerun of the same bogus story via a January 27 New York Times editorial: "Justices and junkets."
The sponsor of the course that Justice Scalia taught is the Federalist Society; the Federalist Society has posted links to its illuminating correspondence with ABC News on its home page. The Federalist Society has also condensed the relevant facts for us as follows:
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1. Justice Scalia taught a comprehensive course about the separation of powers under our Constitution. Reminiscent of Dan Rather’s and Mary Mapes’s false National Guard story, ABC Nightline knew in advance of airing its program that he did not simply “attend” a “judicial education seminar,” and it grossly misled viewers by suggesting that the event was a “junket” rather than a serious scholarly program that required much work and advance preparation.
• Justice Scalia taught a 10-hour course while in Colorado, lecturing the more than 100 lawyers in attendance as well as answering numerous questions they presented.
• Prior to the course, Justice Scalia produced a 481-page course book containing edited cases on separation of powers issues. All attendees received the book in advance and were expected to review the material and prepare in advance of the course.
• Justice Scalia arrived and left Colorado without spending any extra days to engage in recreational activity. He arrived at the hotel the night before the course at 11 p.m., having traveled by car for three hours the night before. He departed at around 6:30 a.m. the morning after the course ended in order to fly back home. The event started at 8 a.m. each of the mornings, and, despite ABC Nightline’s emphasis on Justice Scalia participating in tennis at the hotel, he spent less than two hours playing the game over the course of those two days.
• Justice Scalia presented the course with LSU Law Professor John Baker. Both were present together on the rostrum for the ten hour course, and both received reimbursement for travel and lodging.
• John Baker received an honorarium. Justice Scalia did not.
2. Justice Scalia did not attend Chief Justice Roberts’s swearing-in ceremony at the White House on September 29 because he chose to respect a longstanding commitment to teach a course to over 100 lawyers who had traveled from at least 38 states. This was not, as Nightline suggested, missing an important Washington function so as not to miss a tennis outing.
• There was virtually no advance notice that John Roberts would be confirmed and sworn-in on September 29. It was not absolutely clear until the day before.
• Justice Scalia had accepted the invitation to teach on October 10, 2004 — nearly a year before the course dates. Almost all participants had registered and paid for the course by August 2005, nearly two months in advance.
• To have cancelled just a couple of days before the start of the course would have caused many attendees to lose the money the spent on plane tickets and hotel deposits, and, as the sponsor, the Federalist Society would have faced tens of thousands of dollars in damages that would have to be paid to the hotel for breaking a contract.
3. Justice Scalia was teaching a scholarly program that was educationally rigorous and open to anyone who wanted to come.
• The course was approved by at least 30 state bars for continuing legal education credit. Most of the lawyers in attendance have to take such accredited continuing legal education programs in order to remain licensed to practice law.
• The Federalist Society welcomed anyone who wished to come to the event. Members simply were asked to pay the registration fee, and non-members were welcome to attend if they paid the Society’s nominal dues ($5 for students, $25 for lawyers) along with the registration fee. Indeed, at least 10 of those who came to the course were non-members who joined and paid the registration fee in order to attend.
• More than 100 lawyers and law students were in attendance.
4. ABC Nightline was fully aware that its piece was misleading and inaccurate, and the way in which it prepared the story bespeaks hypocrisy.
• Several hours before the program aired, the Federalist Society spoke with Nightline’s senior producer, David Scott, as well as the investigative reporter who worked on the story, Rhonda Schwartz. The Federalist Society set forth the above facts and made very clear that tennis occupied a minuscule part of Justice Scalia’s time in Colorado. Nightline nevertheless chose to lead with a “tennis outing” theme and grossly failed to present the facts surrounding the course in a way that demonstrated the amount of time and work involved.
• At least a week before this conversation, the Federalist Society had spoken with Rhonda Schwartz and informed her in explicit terms that Justice Scalia taught a 10-hour course attended by lawyers. Nonetheless, ABC’s website, on the night of the broadcast, cast the issue as Justice Scalia attending a judicial education seminar. There is a world of difference between teaching a 10-hour course and coming to a resort to hear other speakers between various recreational activities—but Nightline chose to manufacture the false impression that Justice Scalia was at a function that entailed much play and little work.
• It is ironic that, in preparing a story that seeks to make the point that judges should be held to high standards of ethical integrity, ABC itself broke the law by trespassing on private property and invading the privacy of private individuals who did not give permission to be videotaped. Indeed, ABC contacted the hotel for permission to film the Society’s activities, and permission was denied by hotel management.
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The Federalist Society wonders why neither the Times nor ABC reported this:
<<< In a sampling of the trips (or "judicial junkets") taken by Justices Breyer and Ginsberg we found that during the years of 2003 and 2004, the most recent years for which records are available, they took numerous trips around the country and overseas on the tab of third party organizations.
For instance, in 2003 Justice Breyer was sponsored by New York University for nearly a week in a trip to Luxembourg, Paris and Florence as part of a celebration of the 50th anniversary of the European Court of Justice. He was also subsidized by the World Bank for a conference in London and the Aspen Institute for trip to Aspen Colorado. In 2004, he traveled to Oxford England thanks to the Drager Foundation and Southern Methodist University, to Rancho Mirage, California sponsored by the Annenberg Foundation and to London thanks to the American College of Trial Lawyers.
Justice Ginsberg also traveled to Luxembourg Germany and Florence Italy in 2003 for a weeklong trip. In 2004 she traveled to Honolulu sponsored by the University of Hawaii School of Law for an eleven day “jurist in residence.” She also traveled to Nice, France for two week in July 2004 as a lecturer on the dime of the Hofstra University School of Law, to England for nearly a week thanks to the Drager Foundation, and to Stockholm Sweden for a Swedish Law Conference thanks to the Institute for Vidaretbildning (or VJS). >>>
Why didn't the Times or ABC report this? I trust that's one question our readers can answer for themselves.
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