The conservative Federalist Society, the centerpiece of an ABC News story questioning Justice Antonin Scalia’s ethics, today compared the network’s reporting on the story to the infamous Dan Rather and Mary Mapes episode regarding President Bush’s National Guard records.
ABC News Chief Investigative Correspondent Brian Ross reported Monday for ABC’s “Nightline” that Scalia was out of town at a Federalist Society legal seminar on Sept. 29, 2005—the day of Chief Justice John Roberts’ swearing-in ceremony. The piece contains video footage of Scalia on a tennis court at the Colorado hotel where he was presenting for a Federalist Society legal seminar.
Federalist Society Executive Vice President Leonard Leo on Tuesday released a detailed rebuttal (see below) to the ABC News segment. He said it grossly distorted Scalia’s involvement in the two-day Federalist Society conference and exaggerated his time on the tennis court. Leo also questioned the legality of the video footage, which he called an invasion of privacy.
“Justice Scalia taught a comprehensive course about the separation of powers under our Constitution,” Leo said. “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.”
Prior to the story’s airing Leo said he spent time on the phone on multiple occasions with ABC News Producer Rhonda Schwartz to clarify errors in the story, including her belief that Scalia was on a tennis excursion. He said Schwartz and her colleagues showed no interest in correcting the errors.
But more importantly, Leo said, is the concept ABC News suggests in the piece: that it is unethical for judges to interact with lawyers. Leo called it “absolutely absurd” that judges should be bound by some sort of “gag rule” preventing them from attending conferences such as those sponsored by the Federalist Society.
The ABC News segment featured Stephen Gillers, a New York University law professor, who the network calls “a recognized scholar on legal ethics.” Gillers attacked Scalia for his involvement in the conference, calling it “an activity that is itself of dubious ethical propriety.”
And as for the tennis game, Leo said ABC News’ emphasis on Scalia’s play—including video at the beginning of the segment, suggesting he was in Colorado for recreation, not business—distorts the whole story.
“The event started at 8 a.m. each of the mornings,” Leo said, “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.”
Leo also said the hotel where the conference was held had denied ABC News’ request to videotape, but despite this, the network used undercover cameras in some cases. Leo called it illegal and an invasion of privacy for the hotel’s guests.
A representative of ABC News was not immediately available to respond to the Federalist Society’s charges.
Federalist Society Executive Vice President Leonard Leo released the following information Tuesday in response to the ABC News report about Justice Antonin Scalia’s attendance at a Federalist Society-sponsored legal seminar last September.
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 miniscule 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.