Deconstructing the ABC-Scalia Story

The mainstream media is a generally a purveyor of trash.  Media newsmen and women rarely know about the subjects they report upon. Today ABC News published a story that is especially filthy.  Let's examine this trash line-by-line:

At the historic swearing-in of John Roberts as the 17th chief justice of the United States last September, every member of the Supreme Court, except Antonin Scalia, was in attendance. ABC News has learned that Scalia instead was on the tennis court at one of the country's top resorts, the Ritz-Carlton hotel in Bachelor Gulch, Colo., during a trip to a legal seminar sponsored by the Federalist Society.

With Professor John Baker, Justice Scalia was actually teaching a two-day course on the separation of powers.  Lawyers attending the course could earn 10 CLE credits.  Perhaps at the very moment  that Chief Justice John Roberts was being sworn in, Scalia was playing tennis.  But he was in Colorado for a good reason - to teach lawyers constitutional law.

Not only did Scalia's absence appear to be a snub of the new chief justice...

Justice Scalia had committed to teaching the course months in advance.  Over 100 lawyers each spent hundreds of dollars to attend the seminar.  How is keeping a commitment a "snub" to anyone?   Indeed, Chief Justice John Roberts' refusal to break a commitment (even if there are bigger, better, and more important things going on) is legend.  Surely someone with Chief Justice Roberts' class would understand.

The story next notes that the course was, according to Stephen Gillers, of "dubious ethical propriety."  Why?  Why is it unethical for Scalia, a former law professor, to co-teach a course on constitutional law?  Of course, Scalia taught in a beautiful location; but CLEs are almost always held in "touristy" places.  Would it have been acceptable for Justice Scalia to have taught in, say, Fargo?

The reporter next plays a favorite trick of those lacking substantive arguments: he acts like Justice Scalia wanted to keep the trip a secret:

At a press conference, almost two weeks later, Scalia was not inclined to tell reporters his whereabouts during Roberts' swearing-in.

Of course, as is plainly evident from the Federalist Society's website, no one kept this trip a secret.  Indeed, it was widely advertised to many peoople lacking power and prestige - including me.

The story next suggests that Jack Ambramoff's long arm might have reached this trip:

One night at the resort, Scalia attended a cocktail reception, sponsored in part by the same lobbying and law firm where convicted lobbyist Jack Abramoff once worked.

I'm not sure which firm sponsored the reception, but I do know that  Jack Ambramoff worked for two super-duper large law firms.  Arguing that the cocktail reception was part of widespread corruption is like saying that every reporter for ABC News is as stupid as the author of this story.

Of course, to be fair and balanced, ABC News quotes a legal ethics expert who does not see anything wrong with the trip.  And of course, the reporter, in being fair and balanced, tries to undermine the expert's credibility: 

Ron Rotunda, a law professor at the George Mason School of Law, author of a textbook on legal ethics and who is himself a member of the Federalist Society, finds no problem with the Supreme Court justices attending events sponsored by the organization. "I'm a member of the Federalist Society, the NAACP, and the justices get invited to both, and I think that's a good idea," he said. "The organization doesn't have litigation before the judge and is unlikely to have litigation before the judge."

I'm sure that no legal ethics expert who does not belong to the Federalist Society would have supported Scalia's decision. 

Filled with material omissions, and asking the reader to draw false inferences, this article is absolute filth.  I hope it receives the attention it so rightly deserves.

Comments

[Norm Pattis]

Mike:

Well done, and this from no admirer of Scalia.

Norm

[Mr. Java]

Your criticism of this article is over the top.

First, it is a FACT that the same law firm where convicted lobbyist Jack Ambramoff used to work organized this reception. Do you know for a fact that this law firm he worked for was completely clean? No, you don't. Is it possible that the law firm is involved in unduly influencing those with power as far you know? Yes it is. Mentioning the size of the law firm is a relevant but hardly dispositive point.

Did the article in question ever say that these sorts of questions have been answered. No it did not.

Chill out. Probabilistically, the law firm in question was not in this particular instance engaged in any improper behavior. (But it could have.) But that law firm might be engaged in influence-brokering behavior generally and this MIGHT be part of a larger pattern. That is an IMPORTANT story, whether or not the actions involved are illegal. Is this law firm exerting undue influence on the direction of our government? That is an important story.

Overall, I am not convinced that you should be whining when a newspaper article reports the TRUTH. You might have selected a different set of facts, but so what. I can probably say that about any particular post you put on this blog. The more people realize the information from any source is by definition incomplete, the better off we are. But you should keep in mind that this is the way it MUST be. This newspaper article is not unbiased, and neither is any other which selects some facts to include in a story and not others. In other words, ALL newspaper articles are biased in that way.

Maybe you should have a little more faith in the free market of ideas. People who are interested enough to read about, what to most people, is a boring topic, probably are intelligent enough to realize that the story isn't mentioning every fact that could be thought of as relevant. And if some aren't there are others who are and will ensure the proper functioning of our free market of ideas.

Please stop the whining about the media. It is pathetic. Really.

[KeithK]

Part of the free market of ideas is criticism of ideas that one thinks is risible trash. It is important to oppose speech that one disagrees with more speech.

[Mr. Java]

Your absolutely right Keith. And it is absolutely right to further criticize those whose criticisms are signficantly off base. Hence my criticism of Mike's whining.

[C.E. Petit]

I am disturbed by one non sequitur in the above:

"The story next notes that the course was, according to Stephen Gillers, of "dubious ethical propriety." Why? Why is it unethical for Scalia, a former law professor, to co-teach a course on constitutional law? Of course, Scalia taught in a beautiful location; but CLEs are almost always held in "touristy" places. Would it have been acceptable for Justice Scalia to have taught in, say, Fargo?"

It should be pretty obvious that "almost always held in 'touristy" places" is NOT an ethical justification; if anything, presuming that the location matters, it's an indictment of the entire profession, not just Justice Scalia. I don't think that "location" does create an ethics issue, at least not in this instance (holding a death-penalty seminar at Leavenworth might); neither do I think "everybody's doing it" can EVER constitute a refutation of an ethics challenge.

Of course, the "right" solution would have been to delay the swearing-in ceremony one additional day, or at least have Justice Scalia videoconference in for the ceremony itself (which would have shown respect for both the ceremony and the prior engagement). In fact, since it was the Federalist Society, it seems to me that the conference organizers should have revised their schedule precisely for that reason and OFFERED the videoconferencing as part of the program.

[Paleolib]

In order to attend the CLE program, one had to be a dues paying member of the Federalist Society. So, yes, I do think it would be hard to find an ethics specialist who was not also a member to give this a clean bill of health.

[Ted]

In order to attend the CLE program, one had to be a dues paying member of the Federalist Society.

Considering that it costs $20 to join the Federalist Society and $375 (plus travel) to attend the program, that's hardly meaningful. It's not like there's an oath one has to swear to pay the $20 membership fee.