ABC's Brian Ross Impugns Scalia and Thomas in Distorted Story on "Judicial Junket"

Catching up with a distorted story from early in the week: On Monday's Nightline, ABC ran a silly story by Brian Ross impugning the integrity of the two most conservative Supreme Court justices, for a "judicial junket" in Colorado where at a Federalist Society conference Antonin Scalia played tennis and the acceptance by Clarence Thomas of a NASCAR jacket. Over hidden-camera video of Scalia on a tennis court, Ross stressed how Scalia missed the swearing-in of Chief Justice Roberts and featured law professor Stephen Gillers, "a recognized scholar on legal ethics," as his expert, running seven soundbites from him (compared to just two from a Scalia-defender). But Ross failed to note how Gillers is a left-winger who in The Nation in 1999 fretted about the "nightmare" of more conservative Supreme Court justices. Ross, however, tagged the Federalist Society as "a conservative activist group" as he buried a brief mention of how the group "says this was no junket at all but a legal seminar, in which Justice Scalia taught a ten-hour course." Ross even tried to smear Scalia with a link to scandal: "Scalia also attended the scheduled cocktail receptions, one of which was sponsored in part by the same lobbying and law firm where convicted lobbyist Jack Abramoff once worked."

Ross acknowledged, after his taped story aired, 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 didn't go beyond Scalia and Thomas and the Tuesday Good Morning America version plastered on screen, over video of Scalia playing tennis, "ABC NEWS EXCLUSIVE: SCALIA CAUGHT ON TAPE.” (Full transcript, and more on Gillers, follows.)

This item appeared in Thursday's MRC CyberAlert.

FNC's Brit Hume, in his Tuesday "Grapevine" segment, reported:
"ABC's Nightline Monday night reported that Justice Antonin Scalia missed the John Roberts swearing in at the White House because he was playing tennis and going fly-fishing at a resort in Colorado, courtesy of the conservative Federalist Society. The 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."

Indeed, in an article titled "The Other Y2K Crisis," in the July 26, 1999 issue of The Nation, Gillers began: "My Y2K nightmare is that Republicans will win the White House and keep control of Congress. The payoff for this trifecta, which Republicans have not won since 1952, will be broad lawmaking (and law-repealing) power and a good chance to name three Supreme Court Justices in the next presidential term."

He concluded his article: "Options for progressives seem few. Do we back Bradley (Gore's only current rival) on the theory that if he beats Gore in several primaries, Gore will have to withdraw? Do we support Gore, as the inevitable nominee, while refusing to let Bush hide behind labels like 'compassionate conservative'? Do we concentrate on close Senate and House races, hoping that, whoever wins the White House, Democrats will at least regain Congress? Or do we do something else entirely? Given the accelerated campaign schedule, we don't have much time to act before the Y2K nightmare comes true."

In a March 3, 2004 New York Times op-ed he recommended that the Democratic nominee pick Bill Clinton as the VP.

The Nation's page for articles by Gillers.

NYU's bio page for him, with a picture.

Federalist Society President Eugene Meyer on Wednesday sent a letter, to ABC News President David Westin, listing the distortions they contend Ross and his producers aired. An excerpt:
I write to express my deep disappointment and concern about a January 23rd report aired on ABC's Nightline. The report grossly misled viewers about a recent trip Supreme Court Justice Antonin Scalia took to teach a 10-hour course on the Constitution and separation of powers. Nightline suggested that Justice Scalia's trip was a "judicial junket," and even strained to manufacture a link with disgraced lobbyist Jack Abramoff.

ABC chose to focus on the fact that Justice Scalia's commitment to teach, which he made nearly a year earlier on October 10, 2004, conflicted with the swearing-in of Chief Justice John Roberts. Nightline's report insinuated that Justice Scalia's absence at Chief Justice Roberts' swearing-in was nothing more than Justice Scalia taking the chance to play tennis at a Colorado hotel on the Federalist Society's tab.

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.

It was very appropriate and reasonable for the Justice to honor his longstanding commitment to teach. There was virtually no advance notice that the Chief Justice would be sworn in on September 29, and, were Justice Scalia to have cancelled a couple of days before the scheduled course, most attendees would have lost the money spent on plane tickets getting to and from the course. The Federalist Society would have also faced considerable costs for breaking its contract with the hotel where Justice Scalia taught the course.

Nightline deliberately misrepresented the nature of the event despite the fact that the Federalist Society took pains to establish the facts 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 fact that Justice Scalia arrived at the hotel at 11 p.m. the night before the course and departed for home at 6:30 a.m. the morning after the course ended, thus spending no more days at the hotel than necessary to teach the course. It was made abundantly clear that the Justice taught for ten hours, and played less than two hours of some informal "pick-up" tennis....
END of Excerpt

For a PDF image of the letter, as posted by the Federalist Society.

Human Events has posted an HTML text version and links to some Human Events articles about the ABC story.

ABC News was so proud of the hit job that they posted a complete transcript of the Nightline story, a very rare feature.

Below is the January 23 Nightline story in full, followed by a note about what appeared on the January 24 GMA:
Cynthia McFadden: "Good evening. I'm Cynthia McFadden. On Capitol Hill tomorrow, the Senate Judiciary Committee is expected to support the nomination of Samuel Alito to the Supreme Court. And with the court in the spotlight, tonight we have an exclusive investigation. Unlike the Congress, now ensnared in the ballooning lobbying scandal, or even lower court judges, the Supreme Court does not have to abide by any specific ethics code. That's opened the justices to new criticisms about perks and power. ABC's chief investigative correspondent Brian Ross joins us live."

Brian Ross: "Cynthia, 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, Colorado, 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 September 29 last year [distant video of Scalia on tennis court. Still shot above actually from GMA airing of this story]. But his absence back in Washington did not go unnoticed.

"At the White House that same afternoon, John Roberts was being sworn in as the 17th Chief Justice of the United States Supreme Court. An historic occasion attended by every justice of the court but for Scalia. Scalia's apparent snub of the Chief Justice was one thing. But some legal ethics experts say his presence at the resort raises even larger questions about what critics call judicial junkets."

Stephen Gillers, New York University School of Law: “It's unfortunate, of course, that what kept him from the swearing in was an activity that is itself of dubious ethical proprietary.”

Ross: "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."

Justice Antonin Scalia: "I was out of town with a commitment that I, that I could not break. And that's what the public information office told you."

Reporter: "What was that commitment?"

Scalia: "It doesn't matter what it was. It was a commitment that I couldn't break."

Ross: "The commitment to a conservative activist group call the Federalist Society, which says this was no junket at all but a legal seminar, in which Justice Scalia taught a 10-hour course. According to the invitation, obtained by ABC News, members who attended were told they would get an exclusive and rare opportunity to spend time both socially and intellectually with Scalia. A number of Federalist Society lawyers practice before the Supreme Court."

Gillers: "I think Justice Scalia should not have gone on that trip for several reasons."

Ross: "Steven Gillers is a law professor at New York University and a recognized scholar on legal ethics."

Gillers: "He's using the prestige of his office to, to advance the interest of a group with a decided political/judicial profile. By having a Supreme Court justice at your group's fairly intimate, very posh event, you're lending the prestige of your office to that group. I mean, that's -- everyone would like that. And that's why he shouldn't have gone."

Ross, over dimly-lit hidden camera video: "During the two nights he was at the resort, Justice Scalia also attended the scheduled cocktail receptions, one of which was sponsored in part by the same lobbying and law firm where convicted lobbyist Jack Abramoff once worked."

Gillers: "You know, a lot of people would be embarrassed at that. I don't think Antonin Scalia will be embarrassed."

Ross: "Should he be?"

Gillers: "Well, I think he shouldn't have gone. And therefore, I think he should be embarrassed whether or not the Chief Justice was being sworn in that day."

Ross: "Scalia's trip did not violate the Supreme Court ethics code because there is no Supreme Court code of ethics."

Ronald Rotunda, George Mason University School of Law: "All of the federal judges, save the Supreme Court, are bound by judicial canons that for some reason that I can't figure out excludes the U.S. Supreme Court."

Ross: "George Mason University law professor Ron Rotunda has written extensively on legal ethics and is a member of the Federalist Society. Rotunda says he's not troubled that Scalia chose to be in Colorado at the resort instead of the White House for the swearing in."

Rotunda: "I think when you have a conflict, you know, just like you dance with the one that brung you. When you have a conflict, you accept -- you have to reject the second invitation. The organization doesn't have litigation before the judge. It's unlikely to have litigation before the judge. And so, I think it's a good idea that the rule allows them to attend."

Ross: "An examination of Supreme Court disclosure forms by ABC News found that five of the justices have accepted valuable private club memberships. And one has accepted very expensive personal gifts. NASCAR racing fan, Justice Clarence Thomas, has received tens of thousands of dollars in gifts in recent years, including an $800 leather jacket from NASCAR, as well as a $1,200 set of tires. And from one Texas conservative activist, a vacation trip by private jet and a rare Bible, valued at $19,000."

Gillers: "The rules dealing with gifts don't apply to Justice Thomas because these rules only apply to lower court judges."

Ross: "When you saw the set of tires?"

Gillers: "It seems tacky, doesn't it? People give gifts to judges and justices because they have power. And they have power because of their position that they hold in trust. They hold those positions in trust. And to suggest that it doesn't matter, no one will care, seems to me to be whistling in the dark."

Ross: "In fact, some argue that the Supreme Court is setting a bad example for other federal judges who have been criticized for accepting free trips to luxury resorts for educational seminars that critics call more judicial junkets. Like this seminar at an Arizona golf resort for federal judges, put on by a group which receives funding from major corporations. The fairways were full of judges who had spent the morning listening to speakers with a corporate point of view."

Douglas Kendall, Community Rights Counsel: "I think the judiciary, Brian, is really at a crossroads right now. There's a multibillion-dollar influence-pedaling industry in Washington. And it really has the Federal judiciaries in its sights at this point."

Ross: "The Arizona golf scene was the subject of an ABC News/20/20 report in 2001. And the new Chief Justice, John Roberts, was asked about it during his confirmation hearings last year."

Sen. Russell Feingold, Democrat: "So, I'd like to know, Judge Roberts, if confirmed, whether you will use your power as chief justice to set a high ethical tone for the federal judiciary by putting in place new codes of conduct that would prohibit judges from participating in privately funded 'judicial education' that lets special interests essentially lobby federal judges."

Then Chief Justice-nominee John Roberts, at hearing: "Well, I don't think special interests should be allowed to lobby federal judges. Stated that way, I think the answer is clear."

Ross: "The only official comment from the Supreme Court and Justice Scalia was 'no comment.' And no official from the Federalist Society would agree to appear on Nightline tonight to talk about this."

McFadden, back on live with Ross: "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: "Not at all, Cynthia. This is not about bribery or influence-pedaling but rather a question of appearance. And of course, 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. As Professor Gillers says, it's the appearance of justice that is threatened. And that's what's important."

The January 24 Good Morning America, during the 7:30am half hour, carried the same taped story, but cut it off just before Ross got to Thomas and the rest of the piece. "ABC NEWS EXCLUSIVE: SCALIA CAUGHT ON TAPE," appeared throughout the story. Sitting next to Diane Sawyer, after GMA ended the story, Ross lectured: "The issue is not bribery or influence but the appearance of lack of justice, of fair-mindedness, for people who can't afford to fly a justice out for a fancy three-day trip, they wonder, 'do I get the same justice?'"
Brent Baker
Brent Baker
Brent Baker is the Steven P.J. Wood Senior Fellow and VP for Research and Publications at the Media Research Center