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January 26, 2006
Justice Scalia's CLE
I had the great privilege of attending the CLE that was the subject of this week's ABC story. Justice Scalia led several of the discussions/lectures, a task which required him to be an active presenter for several hours each of the two days of the conference. Details of the conference are made clear in a letter Federalist Society President Gene Meyer wrote to the President of ABC News. I am floored that anyone thinks there is anything the least bit improper about Scalia's attendance. Still more am I surprised that this passes as "investigative" reporting, given that the Federalist Society advertised Scalia's attendance at the Conference and that the same was reported by the AP immediately after Chief Justice Roberts was sworn in.
Stephen Gillers, a professor at NYU, is quoted in the story as saying that Scalia should not have taken the trip for "several reasons," including the Federalist Society's "decided political-slash-judicial profile." Few, if any, groups would fail to be disqualified from having a sitting judge speak to their members under this heretofore unheard-of test. Certainly the ABA and the ACLU have "decided political-slash-judicial profile[s]" and yet -- properly -- nobody has raised any question of the propriety of speaking to such audiences.
The public ultimately is much the better for groups' opportunities to interact with Justices, barring extreme cases where the group in question is pursuing an ex parte contact in a case pending or about to be pending before the Court. This proposition, which has been accepted for decades if not forever, is all the more applicable for situations like the conference in question, because it was an opportunity for the participants to learn interactively about a subject interesting the Justice, as opposed to the more typical event where the Justice simply gives a speech.
Of course this is not the first time critics of Justices have fabricated ethical concerns as a way of encouraging opposition to Justices whose philosophies the critics oppose. Scalia himself was the target of such a campaign recently in the Cheney duck hunting episode, prompting criticism by Gillers among others, and ultimately resulting in Scalia's release of an extraordinary memo defending his non-recusal in the case and pointing out that ethical rules had never before required refraining from the behavior for which he was being criticized. Similar questionable invocations of ethical concerns appear in the Haynsworth and Fortas confirmations, Fortas's criticism perhaps less questionable than the others.
UPDATE: Here are two posts discussing the report: one from SCOTUS Blog and another from the VC.
Posted by Mike Dimino at January 26, 2006 05:13 PM
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Comments
It seems to me to be deliberate character assasination. If they did it to Ruth Ginsburg, the media would have had a field day tearing ABC a new one.
Posted by: Simon at January 26, 2006 09:02 PM
The NYT of course has an editorial this morning excoriating Justice Scalia and who else...You guessed it Justice Thomas for their receipt of gifts and trips, while conveniently failing to mention any of the other justices - Justice Stephen Breyer's Renaissance Weekends in Charleston and trips to Paris, Barcelona, Spain, and Florence, Italy, and Justice Ginsburg's $100,000 from the Kaul Foundation, leap to mind.
And then, in true MoveOn.org fashion, the article points out Justice Scalia's trip "was sponsored in part by the lobbying and law firm that used to employ Jack Abramoff, Tom DeLay's convicted pal..."
Scurrilous, selective, guilt-by-association, partisan, crap.
Posted by: MJ at January 27, 2006 07:25 AM
Not the first time. In 2004 also. They went after Ginsburg too. After Patterico called it to their attention.
I do think the appearance issue is a bit more complicated than you suggest.
But the notion that Scalia is an extreme Conservative jurist who completley agrees withthe Federalist Society's outlandish agenda does not come as a surprise.
I must admit it does come a a surprise to me that a Federalist Society member blogs here.
I was told this is a Center Left site.
Is it really just eclectic?
No judgments. Just wondering.
Posted by: Armando at January 27, 2006 12:59 PM
If you are suggesting they went after Justice Ginsburg with this type of editorial screed, I'd have to see it to believe it, because I don't recall that at all.
"But the notion that [Breyer] is a[] [liberal]jurist who completley agrees with the [Renaissance Institute's] outlandish agenda does not come as a surprise."
"But the notion that [Ginsburg] is a[] [liberal]jurist who completley agrees with the [National Association of Women Lawyers]' outlandish agenda does not come as a surprise."
Wow. That really is fun and easy to do. Very intellectual.
Posted by: MJ at January 27, 2006 02:08 PM
Well, it was an easy story for ABC; little to investigate about it; tinged with mundane tabloidetry; same: ABC as it is now.
However, on the judicial cannons matter, the congress makes that determination for Supreme Court justices. It nears the immutable, that only historians have the last word when it comes to assessing honoraria, and, travel, blessed travel.
Rather than taking a firm contrarian view, I think congress would have a very interesting journey if it were to visit the area of judicial comportment in the land's highest court, in a way that extends the usual bounds of the functional equivalent of due diligence to look for conflicts in making a recusal determination, in chambers. We have heard some of that commentary from at least one Supreme Court Justice quite recently. What say, congress? Well, Senator Spector and Senator Leahy right now are the persons to go to about this. Maybe next gen.
Posted by: JohnLopresti at January 28, 2006 07:02 PM
It reeks of the culture of corruption rampant in DC at the moment. Should Justices take gifts from litigants & their litigators? The answer should be no. When Congress cleans itself up from the Abramoff scandal it might do well to clean up the scandal that is beginning to brew in the judiciary, interests groups, right and left and center, giving what amounts to vacations and dinners to judges & justices. Scalia was just the lightning rod as he missed the swearing in for the Chief, a pretty brash move just to catch a pay-to-play vacation junket.
Posted by: karl at January 28, 2006 07:49 PM
Karl,
You are missing the point. This was not a "pay-to-play vacation junket". Scalia arrived just in time to teach a 10 hour course and then left early the next morning. Are you insinuating that a Justice can not teach a course to a 100 lawyers? His only compensation was his travel and accomodations. In addition, it says alot about a person who upholds his year long commitment to teach a class, rather than skip it to attend the swearing in of Roberts.
Posted by: Tim at January 30, 2006 12:11 PM
Tim,
Gosh, you're making it sound like Nino didn't do anything wrong! Sheesh! You really don't get what a lynch mob is for, do you? ;)
It was also pointed out at Volokh, IIRC, that in addition to teaching the course, Scalia prepared an exhaustive course notes booklet (anyone got a spare copy they want to sell?), which isn't the sort of thing you dash off on a lazy sunday afternoon.
Posted by: Simon at January 30, 2006 01:09 PM
