There's no shortage of historic and gripping Supreme Court stories for journalists to report on these days. Why, then, does ABC News' "Nightline" care where Associate Justice Antonin Scalia was the night Chief Justice John Roberts was sworn in?
It cares because it mistakenly thinks it has caught him in a "judicial junket." Last Monday, ABC News ran an "investigative" story centering on the fact that Justice Scalia was absent the night of the Sept. 29 Roberts ceremony, the only justice to miss it. Where was he? Turns out -- horror of horrors -- that the former law professor had just spent the day in Colorado helping lawyers fulfill their state-bar continuing education requirements. He had promised to do this nearly a year earlier, long before the Roberts nomination, and he couldn't manage to fly the 1,800 miles back to Washington in the hour or two before the ceremony. So he stayed overnight at the Ritz-Carlton and played some tennis.
The "junket" was a 10-hour seminar on constitutional law in Bachelor Gulch, Colo., sponsored by the Federalist Society and accredited by at least 30 state bars. It was attended by a few dozen lawyers, most of whom got continuing-education credit and each of whom was expected to read a 481-page coursebook, which Justice Scalia prepared, on the separation of powers before arriving. Justice Scalia reportedly showed up at 11 p.m. the night before the 10-hour seminar and departed the next morning at 6:30.
So where is the "gotcha"? First, it happens that on or around the time of the Roberts ceremony, Justice Scalia was briefly playing tennis. So that makes a "Scalia played tennis during ceremony" line nominally plausible. Second, the Federalist Society paid for Justice Scalia's travel and accommodation expenses. Why Justice Scalia should have to foot the bill personally to teach an accreditation seminar was never explained, but "Nightline" trotted out New York University law professor Stephen Gillers to declare solemnly that all this was "of dubious ethical propriety."
For years, the media and the political left have been trying to suggest that "judicial junkets" are a serious problem for the Supreme Court. And indeed there have been some conspicuous gifts, like Justice Clarence Thomas' $19,000 Bible. But delivering lectures and running seminars are another story. Unless anyone is prepared to argue that Supreme Court justices shouldn't be lecturing to legitimate legal associations for legitimate professional purposes, it cannot be argued that justices should pay their own way, since that effectively kills the practice.
We would think the greater danger -- and the greater loss to the American legal profession -- would be some misguided set of overly strict rules that deprives legitimate legal associations of contact with justices.
ABC News took a prefabricated line about "judicial junkets" and tried to shoehorn Justice Scalia's professional activities into it. That's a shame, especially with all the great judicial stories to be had right now. Federalist Society President Eugene Meyer has asked ABC News to investigate, but he probably won't be holding his breath. Neither will we.
By Andrew P. Napolitano
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