"NPR Devotes Over 4 Min. to Supposed Ethics Issues of Thomas, Scalia, Alito; Barely Touches on Kagan."

Ha. I heard this segment myself the other day, and the intro completely had me thinking that it was going to focus on the issues relating to the liberal justices:

At times of partisan stress in American politics, the Supreme Court can become part of the game, and the ethics of individual justices can come in for criticism. In recent months, liberal groups have chastised conservative justices for attending private conferences put on by conservative political interests, and conservative groups have responded by leveling some criticism in the other direction.

NPR legal affairs correspondent Nina Totenberg has that story.

I kept waiting and waiting for Totenberg to get to the part about the liberal justices. After loads of detail about the conservatives, all we ngot was one sentence:

The conservative watchdog group, Judicial Watch, has also suggested that Obama Supreme Court nominee Elena Kagan should recuse herself from participating in any upcoming case challenging the Obama health care law, because she had been a legal official in the Obama administration.

Ridiculous!

Nina Totenberg: "I Was At – Forgive the Expression – a Christmas Party at the Department of Justice...."

Brent Baker at NewsBusters does not understand why Totenberg said "forgive the expression." In his headline, he uses the same quote I've used in my headline, but he puts the ellipsis 5 words before I've put mine.

Have I made my point or do I need some more words?
	More words. I don't get it. I'm as confused as Baker purports to be.
	More words. Like Baker, I'm itching for a battle in the War on Christmas.
	Say no more. You're hostile to Christianity. Like Baker, I get it.
	Say no more. I understand the problem that Totenberg acknowledged with a friendly light touch.
	Say no more. I understand the problem that elites like you and Totenberg like to trump up.
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ADDED: I can't say "say no more" without thinking of this.

NPR set Juan Williams on fire.

And it's all on Fox News.



Especially hot:

Nina Totenberg wished that Senator Jesse Helms and his grandchildren would get AIDS -- I said would get AIDS. She's still working there.

A so-called humorist on NPR said the world would be a better place if 4 million Christians evaporated. Hilarious.

And calling millions of members of the Tea Party movement a sexual pejorative, tea baggers won't get you in hot water either.

So it seems some opinions are more equal than others at NPR.

2 ways of looking at Michelle Obama.

1. She's "an incredibly graceful surrogate” for the President and inspires “warm and fuzzy” feelings.

2. "She's got this Stokely Carmichael-in-a-designer-dress thing going. If she starts talking... her instinct is to start with this blame America, you know, I'm the victim. If that stuff starts to coming out, people will go bananas and she'll go from being the new Jackie O. to being something of an albatross."

#1 is from Nina Totenberg, who still works for NPR. And #2 is from Juan Williams, who used to work for NPR. If statements like #1 are acceptable and statements like #2 get you fired, is that not viewpoint discrimination?

If NPR must now prove it is principled, what a bloodbath is coming!

NPR fired Juan Williams and justified it, via CEO Vivian Schiller, by invoking an official editorial policy:

"[A 'news analyst' has] a very different role than that of a commentator or columnist. News analysts may not take personal public positions on controversial issues; doing so undermines their credibility as analysts, and that's what’s happened in this situation. As you all well know, we offer views of all kinds on your air every day, but those views are expressed by those we interview — not our reporters and analysts....

"... NPR’s ethics code [states]: 'In appearing on TV or other media. ... NPR journalists should not express views they would not air in their role as an NPR journalist. They should not participate in shows ... that encourage punditry and speculation rather than fact-based analysis.”

"More fundamentally, 'In appearing on TV or other media including electronic Web-based forums, NPR journalists  should not express views they would not air in their role as an NPR journalist.'"

Now, NPR is in a position where it must prove that's not a pretext by applying that policy, with comparable severity, to its other on-air personalities. Lefties and righties are getting into this game. The lefties are targeting Mara Liasson. Here's Eric Boehlert at Media Matters:

[I]f you look at NPR's code of ethics, there's simply no way Liasson should be making appearances on Fox....

Liasson is part of the Fox News family. Period. For instance, Liasson appears on the Fox News website as a "Fox News contributor," not as "Fox News contributor to the sorta/kinda serious shows." The only way she'd really be able to defend her continued alliance would be to argue that Fox News in its entirely (i.e. Glenn Beck and Sean Hannity) is a serious endeavor worthy of NPR's status. But if Liasson can't defend all of Fox News, then her half-pregnant approach (i.e. she's only employed by a tiny portion of Fox News) just doesn't fly.

On the right, at the Weekly Standard, Stephen F. Hayes points at Nina Totenberg:

Over the past month, in her regular appearances on “Inside Washington,” she has: criticized a ruling of the Roberts Court as scandalous; claimed that Michelle Obama gives people “warm and fuzzy” feelings; called Bill Clinton “the most gifted politician I’ve ever seen;” and lamented that the Democratic Party is diverse enough to include moderates that want to extend all Bush tax cuts....

Her most partisan comment came when Charles Krauthammer pointed out that 31 Democrats in the House had written to Nancy Pelosi to call for extending the Bush tax cuts, Totenberg wished them out of the party. “When a party actually has a huge majority, it has a huge diversity.  And that is part of the problem that Democrats have.  But would I like it to be otherwise?  Of course.”

Hayes goes on, marshaling the evidence. You get the idea. It's open season on NPR news analysts... with 11 days to go before election day. A grisly October surprise.

If the last Protestant — Justice Stevens — leaves the Supreme Court, won't President Obama have to appoint a Protestant?

Nina Totenberg examines a topic people think they aren't supposed to talk about.

Let's face it: This is a radioactive subject. As Jeff Shesol, author of the critically acclaimed new book Supreme Power, puts it, "religion is the third rail of Supreme Court politics. It's not something that's talked about in polite company." And although Shesol notes that privately a lot of people remark about the surprising fact that there are so many Catholics on the Supreme Court, this is not a subject that people openly discuss.

I've written about it — on this blog and in the NYT.

Totenberg:

Professor Mark Scarberry at Pepperdine law school, a self-described evangelical Protestant, says there should be no religious test for appointment.

"But I don't think that that means that a president shouldn't pay at least some attention to religious diversity on the court," he said. "It does seem to me that when you have such a large part of the country that has a particular sort of religious worldview, if there is no one on the court who is able to understand that worldview in a sympathetic way, then that creates difficulties."

I think that since we talk about the race/ethnicity and sex of the Supreme Court nominees, we should talk about religious affiliation. Religion is an even more important aspect of diversity, since it resides in the human mind, and it is the mind that will be making the decisions that bind us. (Is it Protestant of me to think that religion resides in the human mind?)

It's odd how the problem has gone without notice until we are at the point where the Supreme Court will be composed entirely of Catholic and Jewish Justices. It does seem quite wrong to look at the short list of potential nominees and disqualify the very impressive candidates who are not Protestant. That seems like outright discrimination. But why is giving preference to a Protestant any different from going after  a female/Hispanic candidate, as President Obama did with the last appointment?

[RELOCATED] Nina Totenberg on the Voting Rights case.

A pithy report on a minimalist case. Totenberg's take is that the Supreme Court "blinked" because the Voting Rights Act is so "iconic." If the case had gone the other way, we'd have heard about how hot the Court is to enforce federalism at the expense of other values, so I wish, when cases like this come out, reporters like Totenberg would at least note that the Court really doesn't seem to be that interested in federalism. Instead, Totenberg cues us to worry that the VRA is still threatened, and it just dodged a bullet this time.

Nina Totenberg thinks Ted Stevens will be convicted.

Listen to the last line of her report.

"Is there no policy of protecting the home owner a little bit and the sanctity of the home from this immediate entry?"

Worried Justice O'Connor at oral argument in Hudson v. Michigan last Janauary. The case was reargued after Alito replaced O'Connor, and now, with Alito's vote, the Supreme Court has ruled in favor of the state, permitting the use of evidence where the police failed to follow the "knock-and-announce" rule established in Fourth Amendment law.

Justice Scalia wrote the opinion:

When the knock-and-announce rule does apply, it is not easy to determine precisely what officers must do. How many seconds’ wait are too few?...

Happily, these issues do not confront us here. From the trial level onward, Michigan has conceded that the entry was a knock-and-announce violation. The issue here is remedy....

Suppression of evidence... has always been our last resort, not our first impulse. The exclusionary rule generates “substantial social costs,” ... which sometimes include setting the guilty free and the dangerous at large...

What the knock-and-announce rule has never protected, however, is one’s interest in preventing the government from seeing or taking evidence described in a warrant. Since the interests that were violated in this case have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable.

Justice Kennedy's vote was needed for the majority, and he wrote a separate opinion, denying that "violations of the [knock-and-announce] requirement are trivial or beyond the law’s concern" and that "the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt."

That's not how the dissenters saw it. Justice Breyer worried about letting the "police know that they can ignore the Constitution’s requirements without risking suppression of evidence discovered after an unreasonable entry." For a spirited defense of the exclusionary rule, read the whole thing.

UPDATE: The press is doing a bad job of reporting this case! I keep hearing and reading assertions that the Court said the police didn't commit a violation, when the government conceded that they did! This case was about what remedy was available for the violation.

ANOTHER UPDATE: Nina Totenberg gets it right.

Why I haven't blogged about Justice O'Connor's speech.

People keep emailing me the link to this NPR report on a speech that Sandra Day O'Connor gave at Georgetown the other day. I assumed I would blog about this speech yesterday after some of my students brought it up. So let me explain why I didn't blog about it. We don't have the full text of the speech, just Nina Totenberg's summary, and it seems to me that everything in it relates to stories that were current last April, which I blogged about back then quite extensively. In a long post titled "Stirring up hatred against judges," I wrote (in part):

People have been complaining about "activist" judges for years. But here's a Washington Post report on a Senate speech by Senator John Cornyn that speculates that judicial activism might cause violence....

The article connects that remark (which seems to be a rather idiotic sort of talking off the top or your head) with Representative Tom DeLay's recent comment....

DeLay was grousing about the judges in the Schiavo case; Cornyn was complaining about the recent Supreme Court case that barred the death penalty for persons who commit their crimes before they reach the age of 18.

It is really a shame how little people understand of the reasons judges decide cases the way they do. DeLay and Cornyn, like many others, signal to the public to think that the judges are simply out of control and the cases are inexplicable as the serious work of deeply thoughtful persons steeped in the legal tradition. It wouldn't be wise just to assume that judges are unerring oracles of law, but to leap to the opposite conclusion and decide they are frauds is even more foolish. And for a public figure even to hint at violence as a solution is completely unacceptable.

I continue the discussion the next day in "Judicial politics." The next post, "Congress and the judiciary -- with a response from Justice Kennedy," acknowledges that Justice Kennedy had addressed the subject. (He said, when pressed as a House committee hearing that "disagreements over the meaning of the Constitution were 'a very important part of democratic dialogue.'") There's a fourth post on the subject here.

Listening to Totenberg's report, I got the feeling she'd heard a stock speech composed a year ago. It referenced those old Cornyn and DeLay remarks, as Totenberg reports. I agree with O'Connor's points and think Totenberg put together a spiffy report, but it felt like a report from last year, too stale to address. Cornyn and DeLay haven't continued with that idiocy, and a lot of things have happened since then. Why not address those things? Why not say something about how the push-back against Cornyn and DeLay changed their behavior? Maybe she did say some other things that would have seemed fresher. I don't know. I don't have the text to use to find other things that might inspire some blogging. But the text is withheld. Why? Well, one reason for not releasing the text of a speech is because you want to deliver the same speech over and over again.

Radio.

I talked about the Alito hearings on the "Midday" show on Minnesota Public Radio, which you can listen to here (scroll down to the 12:00 hour). The recording begins with some NPR coverage, with Nina Totenberg and others. My show starts at about 18 minutes.

"There's loads of room for judgment. The judges do judge."

Justice Breyer talks to Nina Totenberg about his new book, "Active Liberty." Totenberg does a nice job of challenging him -- after he's emphasized the democratic process over constitutional limitations -- by citing laws against abortion and laws regulating homosexual behavior, which the majority tries to enact and the Court insists on striking down. Breyer responds, conceding, as he must, that it's not all about the majority, that there are also constitutional rights for individuals and minorities, and that the judge still must do the hard work of drawing the lines: "There's loads of room for judgment. The judges do judge."

He doesn't talk about it in the interview, but presumably in the book, he uses the principle of democracy to define the scope of countermajoritarian rights. That's the real test of his theory, and that's where all the problems arise.

"There were very few women in law school."

So said Nina Totenberg on "Meet the Press" last Sunday. She was talking about 1981, the year Ronald Reagan appointed Sandra Day O'Connor to the Supreme Court. A lot of people have gone soft in the head over the O'Connor retirement. Can we please get a grip?

I graduated from law school in 1981. Law School was full of women then. The editor-in-chief of the Law Review was a woman both years I was on. The top three students in the class were women. It wasn't like: Wow, there's a woman on the Supreme Court -- now, I see that women can go into the field of law!

I remember in 1981 saying to one of my many women lawprofs that I was interested in going into law teaching. One of the things she told me was that it used to help to be a woman, because law schools needed to increase the number of women on their faculties, but unfortunately I'd already missed that boat. That was too cynical, of course, but my point is that it was something you could say with a straight face in 1981, so let's not pretend O'Connor was a lone pioneer.

Here's the whole Totenberg quote for reference:

[A]s the first woman--you know, young women today may not remember, but I was there and it was an incredibly moving moment when she was named to the court. And I covered the court back then and I was amazed at myself, at how emotionally caught up I was in it. At that point in the profession, there were almost no women judges. There were very few. There were almost no women lawyers. There were very few women in law school. Today, there are women all over the federal and state bench, lots of chief judges and state chief justices. The majority of law students in major American laws schools are women. So she essentially became the symbol, the opening of the doors, as she said to me in an interview last year. It sort of threw open the doors and the profession that was once an almost exclusively male club is now a totally integrated club.

This is, in fact, ridiculous.

That Dick Cheney case in the Supreme Court. Nina Totenberg had an excellent presentation this morning on the case about compelling Dick Cheney to provide discovery delving into the meetings of his energy task force, which will be argued in the Supreme Court today. Most of the news coverage of this case up until now has been about the effort to induce Justice Scalia to recuse himself for having gone on a duck hunting trip with Cheney. But this is an important case about the power of the Executive Branch, and without question, Justice Scalia is the strongest voice on the Court for protecting the independence of the Presidency. He has been a lone voice for the strongest position, most notably in the Independent Counsel case (Morrison v. Olson), so it is naive or self-deceiving to believe the effort to eliminate his participation in this case is primarily a matter of principle about judicial ethics. This is a vital area of law, in which Scalia's writings are unique and of great distinction: the arguments of those who oppose the power of the Presidency in this case ought to need to go through the scrutiny of this Justice. Those who care about the quality of constitutional law should dearly want the contribution he can make to the articulation of law in this case.

The attention to the duck-hunting trip and the petty indignation about the appearance of impropriety, rather than to the important questions of the independent functioning of the Presidency, is typical of the way public discourse in this country slips into the gossipy level of talking about celebrities and their evil ways. Why are we, as a nation, so uninterested in talking about ideas?