Nightline Smears Scalia
By Roger Aronoff
Accuracy In Media
January 30, 2006
Brian Ross has had a reputation at ABC News of being a first-rate investigative reporter. But his unfair attack on Justice Antonin Scalia for attending a judicial conference has not only damaged his own reputation but backfired in a big way. Thanks to the Federalist Society, which has explained in detail the circumstances surrounding Scalia's attendance at the conference, the American people now have a unique insight into the deceitful methods of a major news organization and its star "investigative reporter."
Ross did a Nightline report that took Scalia to task for not attending the swearing-in last September of Chief Justice John Roberts at the White House. Making Scalia out to be an unethical lout, ABC said that Scalia attended a conference in Colorado held by the Federalist Society, where he played tennis and went fishing, and rubbed elbows with unsavory characters. To make it seem as though Scalia was hiding something, he was shown on hidden camera hitting a tennis ball with his racket.
In fact, the ABC broadcast was a deliberate distortion of the facts.
I had recently given high marks to one of the first shows of the post-Ted Koppel Nightline. But this was the new Nightline at its worst. It had a little bit of everything: Guilt by association, lack of context, omission of key facts, inconsistent labeling, choice and presentation of interview subjects.
The story singled out Justices Scalia and Clarence Thomas, the most conservative members of the high court, for going to conferences hosted by outside groups and supposedly creating questions in the public mind about who might influence their opinions on the bench.
Near the end of the report, host Cynthia McFadden asked, "Now, Brian, there's no evidence, is there, that any of these freebies have influenced any judge in rendering an opinion on the Supreme Court?" Ross said that "it isn't just Justice Scalia. Justices at all ends of the political spectrum take plenty of these trips to lots of nice places, all paid for by somebody else." But Ross never mentioned anything about this so-called "appearance" problem affecting any one of the liberal justices until then, and he did not name any.
He could have done reports on how liberal Justices like former ACLU general counsel Ruth Bader Ginsburg have attended judicial conferences in Europe and have come away with a strange view of how foreign law should guide them in interpreting the U.S. Constitution. Like Scalia, Chief Justice John Roberts and Judge Samuel Alito have both categorically rejected this approach to deciding cases in U.S. courts.
Despite the hidden camera, innuendo, and implication, there was nothing unethical or improper in Scalia attending this conference in Colorado, and no complaints were presented from those who heard his presentation at the legal seminar. And that, not tennis or fishing, was the main purpose of the trip.
As noted by Brit Hume of Fox News, himself a former reporter for ABC News, "The [Brian Ross] report mentioned only in passing that Scalia taught a legal seminar while on the trip, then quoted at some length New York University Law professor Stephen Gillers, who said the whole thing was unethical. While Nightline identified the Federalist Society as conservative, it characterized Gillers only as an ethics expert. In fact, Gillers is a left-wing Scalia critic who once described the prospect of Republican control of both the White House and Congress as a 'nightmare.' As for Scalia, that seminar he taught in Colorado was a 10-hour course for more than 100 lawyers and law students, open to members and non-members of the Federalist Society. He received no fee for it."
Not only that, but Scalia had long been committed to teaching the seminar, while the timing of the Roberts swearing in was not known far in advance.
The Federalist Society had explained this to Nightline, and in a letter following the show, it compared the Brian Ross report to CBS's Memogate story because of its deceptive nature. The group said that "Rather than taking a recreational trip with hours of tennis and going fly-fishing, as ABC would have its viewers believe, Justice Scalia was honoring an agreement made nearly a year in advance with the Federalist Society to teach a serious scholarly program to more than 100 lawyers from 38 states that required considerable work and advance preparation. Prior to the course, Justice Scalia produced a 481-page course book that attendees were expected to review in advance. The course was approved by at least 30 state bars for most of the attending lawyers' continuing education requirements. Justice Scalia was there to share his knowledge and experience and received only reimbursement for travel and lodging."
Ross had reported that ABC spotted Scalia "speaking and socializing with members of the group that paid the expenses for his trip," as if he had been caught doing something wrong. Even more damaging, Ross said that Scalia, while on this "Judicial Junket," had "attended scheduled cocktail receptions, one of which was sponsored in part by the same lobbying and law firm where convicted lobbyist Jack Abramoff once worked."
That was guilt by association taken to a ridiculous and illogical extreme.
Willing to go to an ideological extreme as well, Ross featured more sound bites from Steven Gillers, the left-wing law professor at New York University and so-called "recognized scholar on legal ethics." Nothing was said about his left-wing bent, although a Google search easily finds his articles in The Nation magazine, and a New York Times op-ed piece urging John Kerry to pick Bill Clinton as his running mate in 2004. It's no wonder he has it in for the conservative Scalia.
His bias was as easily identifiable as that of ABC in putting him on the air in its hit piece on Scalia.
Nightline has shot itself in the foot with this laughable report. Bring back Ted Koppel.
Roger Aronoff is a Media Analyst at Accuracy in Media and the writer/director of the documentary "Confronting Iraq." He can be reached at ar1@aim.org.
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