NPR's Nina Totenberg Paints Ultraliberal Justice as 'Far More Conservative' and a 'Devout Catholic'

It was apparently such a slow news weekend that NPR seemed like it was recycling. Legal correspondent Nina Totenberg dedicated a report on Friday night's All Things Considered to the ultraliberal Supreme Court justice William Brennan, publicizing a biography that's been out for eight weeks. She touted his "incredible" legacy:

For those not familiar with Brennan's incredible record, let us recapitulate. As the conservative National Review put it in writing about the liberal justice: "An examination of Brennan's opinions and his influence upon the opinions of his colleagues, suggests that there is no individual in this country, on or off the court, who has had a more profound and sustained impact on public policy in the United States."

Saying Brennan was influential was not exactly a compliment: as Nat Hentoff put it, NR was suggesting his influence was "pernicious." But Totenberg tried to forward the claim that Brennan was "far more conservative" than his decisions:

TOTENBERG: Brennan's interviews with Wermiel show a man who defies, too, the stereotype of a liberal justice trying to impose his own personal views on the law - for Brennan's personal views were far more conservative than what he thought the Constitution required.

Behind the scenes, for instance, he was influential in formulating the legal principles that are the basis for Roe versus Wade, the court's abortion decision. But as he told [former Wall Street Journal legal reporter Stephen] Wermiel...

WILLIAM BRENNAN: Independently, as a private person and not required to make a decision, I would never have agreed that abortion is proper.

TOTENBERG: Brennan also was responsible for expanding First Amendment doctrine, to allow more sexually explicit material. But he hated the stuff and said he would never tolerate it in his own home. And even though he came to firmly view the death penalty as unconstitutional, Brennan admitted that sometimes pained him.

BRENNAN: Yes, and I have said this - I expect it has to be in my private capacity, doesn't it - on more than once occasion: That bastard ought to hang.

This really doesn't matter. If Ted Kennedy had "privately" felt abortion wasn't proper, but was Planned Parenthood's best friend in the Senate, it's the record that matters to the public, not the supposed private views that were rejected. Reporters shouldn't try to make secret centrists out of public servants whose legacy is ultraliberal. Totenberg also called Brennan a "devout Catholic" as his legacy includes the Roe v. Wade abortion decision:

TOTENBERG: Brennan's role as the court's only Catholic justice was a matter of some anguish for him. He resented being asked at his confirmation hearing whether he could abide by the laws of the United States and not the laws set down by the pope. And he resented the role in which he was cast for 30 years as the court's house Catholic. Whether it was other justices asking him if certain language was theologically correct or the campaign by some critics to have him excommunicated, it all upset him. A devout Catholic, Brennan, nonetheless, had few doubts about what he saw as the constitutional imperative for a high wall of separation between church and state.

BRENNAN: I think the risks attendant upon too cozy a relationship between church and state, and what its done to break up societies like ours long before our own, no, I would hold that line very firm. Maybe more firmly than a lot of people, non-Catholics as well as Catholics would hold.

TOTENBERG: Author Steve Wermiel.

WERMIEL: The times that he would get the angriest at me in the interviews is when I would say to him, well, how can you possibly really separate your religious faith from your personal role as a Supreme Court justice. And he'd get frustrated and say: I've told you time and again that, you know, my oath is to uphold the Constitution. I don't have an oath of allegiance to my church.

It's quite clear Brennan had no allegiance to his church, but his adversaries like Justice Scalia would also question the idea that Brennan was some kind of "devout" constitutionalist.

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