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Scalia's Hunting Trip to Kansas: Now They Tell Us
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By Mike Cuenca | March 2, 2004
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Late last week, the Los Angeles Times published an article describing a
second hunting trip taken by U.S. Supreme Court Justice Antonin Scalia
with parties involved in a case before the court. The story of how this
issue finally came to the nation's attention is a case study of
disparate levels of journalistic enterprise and, perhaps, integrity.
My involvement with this story began way back on Nov. 16, 2001, when
the Lawrence, Kan., Journal-World (my hometown newspaper) published an
article describing Scalia's visit to the University of Kansas School of
Law. It didn't make a big impression on me.
The following
week, on Nov. 25, The Kansas City (Mo.) Star briefly mentioned that
Scalia had gone pheasant hunting with Kansas Gov. Bill Graves and
former state senator Dick Bond while he was here on that trip. Again, I
didn't think much of the story's larger implications.
But a
few days later, on Nov. 29, the Journal-World published another
article, this one describing how the dean of the KU School of Law and
one of his former students had argued opposite sides of a case before
the U.S. Supreme Court. The dean, Stephen McAllister, who had clerked
for U.S. Supreme Court justices Byron White and Clarence Thomas, was
also solicitor for the State of Kansas, handling all of their
high-level appeals. The case was an important challenge by the State of
Kansas to the constitutional protections of the Fifth Amendment.
Kansas had instituted a policy requiring convicted sex offenders to
confess their crimes in order to receive psychological counseling.
Apparently, participating in counseling also earned these offenders
other rights, including "time in the recreation area and personal
televisions," according to the Journal-World article. The prisoner's
right to protection under the Fifth Amendment had been upheld by the
Tenth Circuit Court of Appeals and had been appealed to the Supreme
Court by the state of Kansas.
Immediately, I tied the stories
together. The state of Kansas was arguing a case before the U.S.
Supreme Court and one of the justices of that court had traveled to
visit with the attorney for the state and had wound up going hunting
with the state's chief executive. I know enough about the practice of
law to know that ex parte (one-sided) communications between judges and
the parties to a case before him or her is not allowed.
The
involved parties have all denied any connection between the trip and
the case, but that's impossible to verify, which is a good argument for
why such contacts should be avoided.
I believed that this
story deserved more attention. I put together the links for the
articles about the trip and the case, and sent them to various media
outlets, but got no response.
So questions remained: Who paid
for the trip? Who else did Scalia meet with? Did Scalia meet alone with
McAllister, who was attorney for a party in a case before the Supreme
Court? Did Scalia offer McAllister advice on what arguments to put
forth?
By the following summer, the Supreme Court had ruled
5-4 in Kansas' favor. Scalia voted with the majority. On June 15, The
Washington Post published an editorial lamenting the decision as "a
dangerous principle for the justices to be embracing."
This
ruling represented a significant weakening of one of Americans' most
important constitutional rights. The precedent now exists for the state
to limit that constitutional right under at least one circumstance,
which may prove to be the first step that leads to additional rulings
allowing the further limiting of that right or other constitutional
rights under certain conditions. For that reason, I've never understood
the lack of interest in the story.
When the decision was
announced, I circulated links that tied the ruling with Scalia's trip
to Kansas. Again, I received no response and no one picked up on the
story.
Fast forward to this year. The Los Angeles Times
reported on Jan. 17, 2004, that Scalia had accompanied Vice President
Dick Cheney on a hunting trip to Louisiana, even though Cheney is a
party in a case before the Supreme Court. I quickly dispatched letters
to the editors of the L.A. Times and the Kansas City Star, reporting on
the 2001 hunting trip. Neither paper published my letter. I sent the
links to the previous Kansas trip to the same major news outlets I had
before. No one responded.
I contacted L.A. Times reporter
David Savage directly, providing him with the information about the
Kansas trip. He thanked me for the information and said they were
looking into the financing of the Louisiana trip.
After
Savage on Feb. 5 broke the news that Cheney had provided Scalia with
the transportation to Louisiana for the hunting trip, I again submitted
a letter to the Kansas City Star. This time, I received a response,
from their letters department and from a reporter. The reporter asked
me where I got the information about the Kansas hunting trip (I told
him it was published as a brief in his own paper), and if I was a party
to the case. He thanked me for the information and that was that.
A few days later, I contacted the letters department and asked if my
letter would be published. I was informed that the Star had decided to
run an article instead of my letter. The article turned out to be an
item of 138 words, tucked away in the Metro briefs, with dismissive
quotes from Bond, the former state senator who had been on that hunting
trip with Scalia.
By then, I was feeling pretty furious about
what seemed to be a flagrant lack of journalistic curiosity in our
media. But Savage and reporter Richard A. Serrano had apparently
followed up on my lead and published an in-depth description of the
Kansas trip in the L.A. Times last Friday. That day, the wire services
carried the Times article and it appeared across the nation, including
here in Lawrence.
The next day, the L.A. Times and The New
York Times published editorials pointing out that the new story added a
significant element to questions about Scalia's impartiality and
ethics. The Washington Post picked it up and published their own piece
on the L.A. Times story.
Finally, the significance of
Scalia's trip to Kansas is apparent to the national media. I can't help
but wonder why it wasn't apparent when it happened. I can't help but
wonder how many other stories of similar significance the national
media have also ignored.
Oh, and on Feb. 29, the Kansas City Star finally ran the detailed L.A. Times story of the Kansas trip.
Mike
Cuenca taught journalism at the University of Kansas from 1994 to 2001.
He is presently Humanities Program Director of the The Civil Society
Group in Lawrence, Kan.
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Originally published by editorandpublisher.com.
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