NPR's Nina Totenberg joined NPR in 1975 and has covered the Supreme Court in the decades since. This week, Grant Reeher speaks with Totenberg about her career, as well as the polarized politics surrounding judicial nominations, the Supreme Court, and Brett Kavanaugh. They also discuss a very special violin.
Reeher: Let me start with a couple questions about where we are as a country politically right now. I mean, you’ve been watching this for a very long time, so I’m keen to get your sense of this. And then, I’m going to get some questions about your experiences as a reporter. But let me start with this basic question about political polarization. It seems like politics between the two parties has been very sharp-edged for a long time, but in recent years, it seems to have become extremely so. And I just was curious as a longtime observer, is this kind of the worst climate you’ve seen? Where do you place this in terms of your prior experiences?
Totenberg: It’s the worst – by far the worst. And it’s been getting this way, I’d say, for the last 20 or 30 years. Each time you think, well, it’s going to repair to the old way, it doesn’t. It just gets worse again. Now, having said that, I am the legal affairs correspondent, and I also covered politics for many, many years. But I don’t do it anymore in part because we have so many different platforms that we report for that I think there’re probably eight or 10 people who now cover what I used to cover as a one-woman band. And also, even just running around the country as a political reporter, carrying pounds and pounds of equipment and covering campaigns – presidential, vice presidential campaigns – running on and off vans and stuff like that, I finally decided my back probably would be better off not doing that. But I think it says everything when you learn that, at NPR, and we have not been at the center of the so-called “fake news storm.” We have not suffered those insults, by and large. We have regular training for people covering campaign rallies for their safety. And I never worried about my safety when I did this, and I think the last big campaign I covered, I covered the Biden campaign in, I think, 2008, and I think that’s last big one I went out on, and I never worried about my safety. I sometimes worried if I could run fast enough to get where I needed to get, but I never worried about that. Now, everybody worries about it, and it’s kind of a scary thing for journalists. I think scary not to your personal safety as much as scary as about what it says about the tenor of our, for want of a better expression, civic debate, perhaps not civil debate but civic debate.
Reeher: I wanted to ask you a particular aspect of that. You have entry behind closed doors given what you do and also the reputation that you have, and you hear, at least you used to hear in the past, that even though it looked real bad from the outside, once you got behind closed doors, the conversation got more civil, got more give-and-take, more bargain oriented. But I’m hearing less of that now. I wanted to get your sense of that from your experiences. Is it just as bad inside those doors as it looks to the rest of us from outside?
Totenberg: I’m not sure because I don’t cover the hill much anymore. I do when there’s a Supreme Court nomination or sometimes a lower court nomination. And I know that individual senators and members of the House have relationships across the aisle – personal relationships where people like and respect each other. And that used to also work in working out solutions, but because the parties are now so stratified and their members tend to be penalized by not really as much their own members – although that does happen – as they are the bases of their party. It gets more and more hazardous to do that kind of thing, politically hazardous. And for Republicans, it’s very clear. For Democrats, they’re trying to figure this out because they have a few dozen moderate members of the House, for example, who do not have as liberal an agenda as the party does. But, if they vote that way, they may risk their own re-election, and if that happens, what you’ll see more and more is the Democratic Party will become pulled to the left as severely as the Republican Party has been pulled to the right.
Reeher: When it comes to, you mentioned that you cover the nominations and that’s when you spend some time on the hill. But that nomination process seems to me, anyway, to have become, in recent years, downright toxic, almost in some ways worse than even the rest of the political dialogue. Is that your impression too? Where are we in terms of where we’ve been in the past? There’s been some high-profile very nasty nomination fights going back a fair ways. Robert Bork would be one that would come to mind. But still, thinking of the last couple iterations of this, it seems like it’s gotten to a whole other level.
Totenberg: I think I would expect Supreme Court nominations to be very hard-fought, and if there’s any flaw or potential flaw in any nominee, increasingly, the other side is going to capitalize on it. Where it has become more and more toxic is actually in the lower courts. And what used to prevent that from happening was a fair amount of consultation when the senators, for example, from a state were not of the party of the president. If you’re of the party of the president, you do get consulted. And it used to be if you had, for example, two senators who were Republican and a Democratic president or vice versa, you simply had to consult them. And nominations did not move forward unless the senators from the state agreed to move them forward. And that happened all the way even through the Obama administration. There were a lot of nominees who got dropped early in the process because the Republican senators from the state objected, and then, Mitch McConnell, the then-senate leader, held a lot of those seats open. He just refused to confirm them, at least at the court of appeals level and even some district court levels. And now that President Trump is president, he is increasingly not consulting the senators form the state who are of the opposing party. And they can yell and scream all they want, but there’s really nothing much they can do about it. And it means that I would say that the nominees to the courts of appeal are far more conservative than the Democratic nominees in the Obama and Clinton administrations were liberal. And one of these days, there’s going to be a Democratic president with a Democratic Senate. I don’t know when it’s going to happen, but can’t even bar the door, there’s no filibuster left. There’s no nothing left, and the Democrats have felt themselves totally rolled, and they’ll roll the opposition back when they get the power.
Reeher: Do you see a way out of this? Do you see a future where this will revert back to an earlier day where this wasn’t done in such a harshly partisan way?
Totenberg: I don’t have a crystal ball, but I don’t see a way out of it. It’s always tit for tat in this. It’s an arm’s race in a way about judgeships. And they weren’t terribly important to Democrats for many years. That was not their first priority. But I think increasingly, now, they will be, and it is an arm’s race.
Reeher: Vanity Fair once called you the “queen of leaks” for, among other things, you’ve broken many important stories, but just a few – Anita Hill, Supreme Court nominee Douglas Ginsburg and his use of marijuana, Supreme Court secret deliberations during Watergate. What’s your secret? Why are people so comfortable telling you things they’re not going to tell a lot of people?
Totenberg: Well, they’re not. It’s nice to be called the queen of leaks, but the truth is that people don’t normally come up to a reporter, even for The New York Times or the Washington Post – or perhaps them more than me. I’ve never had somebody just drop something in my lap. I’ve always had to know something, some little kernel that made me suspicious so that I started kicking tires journalistically and calling lots and lots of people and then prying loose a little more information and a little more and finally getting the whole enchilada put together. I can’t say that it doesn’t just happen, that people just hand you a document. I’ve just never had that happen to me. I’ve never been lucky enough to have that happen to me.
Reeher: Is there a judicial story that you’ve done in your career that sticks out as the most memorable to you?
Totenberg: People always say to you, “Well, what was the most consequential story or favorite story or whatever?” And I can’t actually say. Certainly, the most consequential story was the Anita Hill story because it caused a reopening of the hearing and a very close vote that probably wouldn’t have been that close otherwise. And it had enormous repercussions in the world of sexual harassment as well. But it was hardly my favorite story. It was unpleasant to report. It was unpleasant in the aftermath. I think the thing that I have done that I loved best was an interview that I did in public. It was an interview of Justice Ruth Bader Ginsburg and Justice Antonin Scalia, the ideological opposites on the Supreme Court. And this was just a few years ago. I think it was about a year before Scalia died, but it may have even been that year. And I think it was the year before. And I know them both very well. I had known them both long before they became Supreme Court justices, and they trusted me enough. And they were not exhausted. It was in the mid-February break. They didn’t have a lot of stuff going on, and it’s called a writing break because people can work on their opinions. And it was in the Lisner Auditorium in Washington in front of about 1,500 people. And they came to play. And they argued and they fought and they told entertaining stories about each other with great, great affection. And it was just a sensational hour and a half and an example of two people who ideologically don’t agree at all but who respect and respected and liked each other.
Reeher: What’s the story of yours that’s generated the most public reaction? What’s the one where you run into people in the airport, they want to talk to you about, “oh, that thing you did”?
Totenberg: In the last few years, it is definitely the recovery of my father’s Stradivarius violin, which was stolen after one of his concerts and recovered 35 years later. And it really touched people enormously. It might’ve been because it was in the middle of the summer and there wasn’t a lot of news. I think the day that it broke, the only other big news was the first big Republican debate. And a friend of mine was in a bar in Boston and said all you saw on TV was the snippets of the debate with Trump and the violin story. And I think it touched people because there’s not a lot of good news these days, even less than other times, and it was such a life-reaffirming story even though my father, by then, had died. He died of 101 still teaching on his death bed. But I had done this story, and it had lots of music in it of the Stradivarius. My dad was in it. My dad was a great concert violinist, virtuoso violinist, and so, I had all kinds of CDs of him playing the Beethoven flying concerto, the Paganini caprices, the Box Solo sonatas, and I wove them into this piece of the story of the recovery of the violin, which was a pretty astonishing story.
Reeher: I think it also probably gave listeners a little bit of a picture of you. Here is this person who’s been telling them about the Supreme Court, and now, all of the sudden, they’re hearing about you and your past.
Totenberg: Yeah, and it’s really interesting. My dad, one of the sweetest things he ever said to me was about the time of the Anita Hill story. He said to me, “You know, most of your life, you have been the daughter of me. But now, I am the father of you when I meet people.
Reeher: Is there a story that you’ve done where you would like to have had a chance to, if you could do it over now, you’d do it differently? Something that sticks out in your career like, “oh gee, I really wish I would’ve thought about that one differently.”
Totenberg: I can’t think of a particularly story. I’m sure there’s stories where I’ve made a mistake and I’ve had to issue a correction – nothing major but the kind of things that make you cringe that you could do something that stupid. Once, I got the wrong first name for somebody, and it was a total mental slip. I just said “Michael” instead of “David” or “David” instead of “Michael,” and the proper word would be “mental fart.” But I think that in the early part of my career, when I was usually the only woman every place I worked, I was very pushy because I thought – and maybe I was right, I don’t know – that that was the only way that I could get done what I needed to get done, get information, get people to deal with me. And in hindsight, over many decades, I’ve learned that being strident really doesn’t get you a lot of fans. And I didn’t need to do that, I think, in order to do my job.
Reeher: You mentioned being one of the only women. I have a set of questions that kind of tie to that in a particular way, and they’re about the Kavanaugh hearings. And I’m sure you get asked tons of things about this all the time. I have to ask this first question that I’m guessing you’ve been asked probably thousands of times and may not want to answer, but I feel like I have to ask it. You had a front-row seat in all of that. You got to see up close all of the players involved. Do you think Justice Kavanaugh was guilty of sexual assault?
Totenberg: I don’t know the answer to that. You bring your own baggage to making that evaluation, and you have to understand that you do bring your own baggage to that. This all happened when he was 16. It seemed to me at least conceivable that, not that he had a blackout, but that he had too much to drink and simply didn’t remember this. I, for me and for many of the people I know who covered those hearings, the more serious aspect of them was something he tried to walk back afterwards. And that was his very political reaction to it, his attack on the Clintons, that this was the revenge of the Clintons and manufactured to destroy him. And I’ve known Justice Kavanaugh for probably 15 years or so. And I’ve never seen that Kavanaugh, and I was quite surprised.
Reeher: I presume he was coached, right?
Totenberg: I don’t know. He’s made a big point of saying he wrote his own testimony. Now, there are two possibilities – either he lost it and regretted it a bit later, or he was instructed, “if you don’t want to have President Trump pull your nomination, you’ve got to do this.” And I don’t know which it is.
Reeher: Do you think that that story, thinking about your experience of it, again, being a trailblazer as a woman in this field and I imagine not just in terms of radio journalism but in terms of covering the courts, you probably had to deal with some unpleasant experiences along the way. Was this a tough story for you to cover in that way?
Totenberg: No. It was hard because I don’t like this to happen to anybody, either way. And there’s really no way in a story like this, at least with the Anita Hill story, there were corroborative witness, contemporaneous corroborative witnesses. That really wasn’t so with Christine Blasey Ford, and so, you were essentially, I think, operating on your gut. And I think a lot of women were disappointed that it was, in some sense, a replay of the Thomas/Hill hearings, that somebody testifies believably, and then, the difference is, this time, they didn’t pillory her. They said, “Well, we find you a very proper and believable witness, but we’re going to vote for Judge Kavanaugh’s confirmation anyway.” On the other hand, we’re talking about high school. At the best, you’re talking about an event that conceivably happened in high school and that obviously was very traumatic to this woman. But perceptions vary enormously, especially when you go back to somebody that age. And I would much rather have had this be a vote based on his record.
Reeher: What do you think is the most important thing about the Supreme Court that Americans don’t understand or appreciate?
Totenberg: I think it’s very hard for people to understand that justices try their best to make decisions based on the law and not their personal views. And certainly, individuals view the law through the lens of their own experience, but there is no doubt that, for example, Justice Kennedy is a very devout Catholic and still has voted consistently over the years to support access to abortion rights. He now has retired and been replaced by Justice Kavanaugh. I don’t know how Kavanaugh’s going to vote on these questions, but I think it’s reasonable to expect that there are five justices on the Supreme Court who are, as a group, more conservative than any group that I’ve covered in the 40 plus years that I’ve covered the court. And they’re a very different kind of conservative. And if they don’t reverse Roe v. Wade, they certainly, I think, will make it, for all practical purposes, inoperative in states where there is a political hostility toward abortion rights. It won’t matter in New York; it will matter in Alabama.
Reeher: You mentioned earlier in our conversation that NPR had largely been spared from the accusation of fake news, but there’s a different kind of accusation that has not been spared, and that’s the criticism for having a political bias. And in NPR’s case, that’s usually a liberal bias that’s being asserted. And some people have even criticized your reporting on those grounds in the past. Do you think the criticism of NPR has merit at all?
Totenberg: Not much. I think certainly you can argue with the choice of stories that sometimes are on the air. Maybe you think there are too many transgender stories, for example. But I think that the skill with which we report stories is based on the old-fashioned notion of nobody can be perfectly objective, but trying to be objective and, most of all, being fair. There are rules for doing this, old-fashioned rules. Now, there’re places where those roles are not operative much, and that would be very liberal networks or very conservative networks, Fox or MSNBC. You look at anybody from Hannity to Rachel Maddow, and don’t yell at me – I’m not equating them – I’m just saying that this is their business model, to appeal to, on one side, conservatives, and on the other side, liberals. And in, I think, Fox’s case, with the exception of the very straight news guys Shep Smith, Bret Baier, the whole purpose of the network was to present a conservative viewpoint of the news. That’s not the purpose of NPR, to present a liberal or a conservative view of the news. We really do trust our listeners. We think if you give them good information, they will be able to make their judgment. And I have to say that, when people come up to me in airports, for example, it’s very often a colonel or a general or somebody who is not your fruits-and-flowers liberal at all. And the reason that they like NPR even though they might not like the choice of this story or that story or they might not like X or Y is that, by and large, they trust the information and they like the fact that we trust them.
Reeher: Given everything that you’ve just said there, do you think that, because of NPR and its mission, it has, first of all, a higher standard to meet in regards to that kind of consciousness and being careful to do the job well? And do you folks think about that when you’re sitting in your editorial meetings like, “We need to cross-examine ourselves three or four times”? How does that play out?
Totenberg: I think we do think about it and talk about it, and so do other journalists, I should add. But we don’t get, for all practical purposes, public money. We get less than 1 percent. Our stations get money, and that supports stations in rural areas as well as urban areas as well as out on Indian reservations. But I think that we really do occupy a somewhat different place, and we’ve gotten big enough that we are now one of the major players, if you look at who people trust and who people listen to. And I think we’re pretty cautious. And I know we’re pretty cautious about the kind of language we use. We have a standards person who is there every day saying, “No, we can’t repeat what Trump just said.” We had a big fight one day about “s-hole.” I won’t say it here. And many of us thought, “We can’t just not say that. He said that.” And in the end, we couldn’t not say it. You looked ridiculous. We would’ve been the only people in town, but it took us many, many hours before we realize, “We just have to say it. We just have to say it.”