NPR Lets Nina Totenberg Uncork a Long Negative Ad on Thomas, 'Untethered' Extremist

On Tuesday night’s All Things Considered, NPR celebrated its pivotal role in creating the “riveting” and “tumultuous” Hill-Thomas hearings, which ended in Thomas being confirmed “by the smallest margin in a century.” So said substitute anchor Guy Raz.

NPR handed over the microphone to their legal reporter Nina Totenberg, who channeled that liberal-Democrat leak of Anita Hill into “history.” Totenberg filed an almost nine-minute report that could be called a “screed” against Thomas. Her thesis was that Thomas was a radical, extremist judge untethered to tradition, with a “vociferous” wife to boot. Totenberg hasn’t learned any objectivity over the last two decades.

Totenberg skipped over the actual details Anita Hill claimed, and whether they were true. She skipped over her shredding her notes to avoid a special counsel investigation of the leak from the House Judiciary Committee. She skipped over how twice as many Americans believed Thomas. This screed was all about what a radical extremist Thomas became on the bench. Let’s sample a bit of the attack:

NINA TOTENBERG: Clarence Thomas is not just a member of the conservative block of Supreme Court justices, he is without a doubt the most conservative justice, willing to regularly strike down long-accepted case law that has been in place for decades, in some cases as much as a century.

He is the only justice willing to allow states to establish an official religion; the only justice who believes teenagers have no free speech rights at all; the only justice who believes that it's unconstitutional to require campaign funders to disclose their identity; he's the only justice who voted to strike down a key provision of the Voting Rights Act; and the only justice to say that the court should invalidate a wide range of laws regulating business conduct and working conditions.

Though his defenders shy from calling his views radical, they trumpet Thomas as the only justice to consistently return to what they see as the original meaning of the Constitution when it was adopted in 1789.

UCLA law professor and academic blogger, Eugene Volokh, compares Thomas to the Supreme Court's most famous justices: Brandeis, Holmes, John Marshall, in the sense that he has a clear vision of where he thinks the court should go.

EUGENE VOLOKH: Thomas is somebody who has articulated the sharpest and clearest originalist vision of anybody on the court.

TOTENBERG: But that vision is so far removed from modern constitutional law that critics see it as little more than trying to turn the clock back. Georgetown law professor Peter Edelman.

PETER EDELMAN: I think it's fair to call Thomas a radical conservative. He's the Tea Party of the Supreme Court.
TOTENBERG: Even former Reagan administration solicitor general, Charles Fried, who admires Thomas, sees his views as off-kilter. His opinions, says Fried, are well written and researched.

CHARLES FRIED: They are high quality work, there's no question about that. They're just completely out of the mainstream.

TOTENBERG: Scholars note that Thomas's views are in fact so extreme that he is considerably to the right of the court's most heralded conservative, Justice Antonin Scalia. Supreme Court advocate Tom Goldstein says that Scalia balances purism and pragmatism, while Thomas is a purist.

TOM GOLDSTEIN: Justice Scalia has his foot hovering over the brake pedal. Justice Thomas' is firmly planted on the gas.

TOTENBERG: Conservative blogger Ed Whelan says Thomas is the only justice who's willing to trust the Founding Fathers, even if that means, for instance, that states are free to prefer one religion over another.

ED WHELAN: You can call that un-pragmatic if you want, but I think it reflects a deeper faith in the citizenry.

Kudos to Totenberg for allowing Ed Whelan to speak for Thomas, as well as Volokh, although Totenberg seems to use Volokh to bash Thomas. Someone at NPR allowed this story to be fairer than the "living legacy" Anita Hill puffs in other places. But notice how Whelan is a “conservative,” but ultraliberal Peter Edelman (who resigned from the Clinton administration over welfare reform) is merely a “critic” and Charles Fried is a “Reagan administration” official, which is accurate, but not reflective of his current career as a Bush-bashing NPR darling.

The most sickening omission is the most common: Totenberg used Tom Goldstein and neither mentions that he’s a liberal – and that he worked as her intern. But let’s get back to Nina’s bashing. After trashing a very early Thomas ruling on brutality against prisoners, she declared:

TOTENBERG: Can someone who is so untethered to the big decisions of the last century [read: disrespectful to liberals] be influential on the court? Yes and no. For now, it is his dissents, not his majority opinions, that are the attention grabbers. Supreme Court advocate Tom Goldstein.

GOLDSTEIN: I think he's planting flowers in a garden that he thinks are going to bloom a long time from now. And whether that's going to happen is going to depend on the court's membership.

TOTENBERG: Other scholars note that Thomas makes the other very conservative justices on the court look centrist by comparison. UCLA's Volokh observes that studies show people like to be seen as in the middle.

VOLOKH: That means that if you influence what the extremes look like, then you can shift the middle.

TOTENBERG: And Volokh adds that by just staking out a previously inconceivable position, Thomas, even though alone, makes that position plausible.

After a few diversionary notes about how people at the Supreme Court love Thomas, she returned to the bashing. Thomas, according to Totenberg, talks only to people who agree with him.

Stop. Laugh. This is NPR, suggesting someone else only listens to people they agree with. NPR. The network that fired Juan Williams for talking on the Fox News Channel. Cue the laugh track:

TOTENBERG: Harvard law professor Charles Fried, who served with Thomas in the Reagan administration, says the justice increasingly fraternizes only with people who agree with him. His friends include talk show hosts Rush Limbaugh and Mark Levin, among others.

FRIED: The effect of that has been to harden his point of view and to make him more and more extreme and isolated in his ideas, because he more and more talks only to people who agree with him. And that's a shame.

What’s a shame is that conservatives have to donate involuntarily to this claptrap. Then, Totenberg suggested Thomas is often caricatured. (And she should know – she’s right in the middle of a nine-minute political cartoon.)

TOTENBERG: To the public, this very complicated man is often seen as a caricature; the only justice who does not ask questions. He sits in court, often leaning back in his chair, his eyes closed. His hair is gray now, his frame much heavier than 20 years ago, but he is just 63 years old and reasonably could be expected to serve another 20 years.

His wife's vociferous advocacy for the Tea Party and against the Obama health care law have put Thomas in the crosshairs of controversy. Indeed, last week, 45 Democratic members of Congress asked the House Judiciary Committee to hold hearings on Thomas' conduct. Chances of that happening in a Republican-controlled House are somewhere between nil and zero. But ethics issues continue to pop up.

At this point in the transcript, the report is almost over, and the word “Democrat” is used, but not “liberal.” If Totenberg called someone liberal, you might think she’d have an electric shock applied. But she goes back to the C-word in letting Ed Whelan wrap up:

TOTENBERG: Conservative Ed Whelan dismisses those questions outright.

WHELAN: It's a testament to him that he's made a lot of the right enemies. And those enemies look for any opportunity, you know, whether or not sound, to attack him. You know, in part, I think Justice Thomas is seen by many as a leading figure in the war over the Supreme Court and that war can sometimes get very personal.

TOTENBERG: Or even ugly. And that very likely is the way Clarence Thomas sees his critics too.

I hope she looked into her compact mirror while she was finishing that report. Because that report was an ugly, self-defensive piece of politicking.

Tim Graham's picture