Few know the U.S. Supreme Court as well as acclaimed National Public Radio legal affairs correspondent Nina Totenberg, who has been covering the nation’s most notable judicial decisions and controversies for nearly a half-century.
The nation as a society has become extremely divided and tribal, Totenberg said Thursday night during her appearance at Trinity University’s Distinguished Lecture Series, and that shift has moved in an unhealthy way into the politicization of judicial nominations and the fights over who even gets to the confirmation process. She said in recent years she has seen nomination and confirmation tactics take an ugly turn with the process not reflecting the one she first began covering in the early 1970s.
The issue is exacerbated, she said, when a nominee becomes controversial as was the case this fall when recently confirmed Justice Brett Kavanaugh was accused of sexually assaulting an acquaintance when both were in high school 30 years ago.
His accuser, Christine Blasey Ford, a research psychologist at Stanford University, and Kavanaugh both testified in front of the Senate Judiciary Committee before Kavanaugh was ultimately confirmed.
“I understand the passions run very high in confirmation hearings, and a great deal is at stake,” Totenberg said. “But when a nominee frames his defense in partisan terms, it’s a dangerous thing because courts don’t have armies.
“We only follow what courts tell us to do because we have a certain element of trust in their fairness. And if we think they’re completely partisan and not fair – if a substantial number of us think that – then the court loses its authority. Ultimately, that’s how we settle disputes.
“…If we don’t trust the courts, we are getting very close to the kind of world we lived in in the pre-Civil War era. And that’s not good for any of us.”
The analysis of the court’s inclination in the wake of Kavanaugh’s confirmation is that it now leans right with a 5-4 conservative majority. Totenberg said she sees the addition of two new justices appointed by President Donald Trump in his first two years in office as having made the court as conservative as it has been since the 1930s.
She said eventually Democrats will regain control of the White House and the Senate and have their opportunity to make changes – and she doesn’t expect it to be any less partisan.
“It’s tit tat, tit tat, and it gets worse and worse and there is almost nobody to temper the brew, and the brew has gotten pretty ugly,” Totenberg said, addressing an estimated crowd of 1,000 during a question and answer session with Trinity President Danny Anderson.
Totenberg, 74, is one of the most accomplished reporters of her time but only because the nation has changed so much during her career, she said, noting that when she first pursued journalism jobs in the 1960s and 1970s, male managers doing the hiring often told her that, “We already have our woman.”
“The last time I got that was 1980,” she said. “Gender discrimination was as American as apple pie.”
Totenberg’s first major scoop came three years after former President Richard Nixon resigned when she revealed that former Chief Justice Warren Burger had delayed announcing the results of the court’s vote against reviewing the case of three men convicted in the Watergate scandal that led to Nixon’s resignation.
In 1991, Totenberg broke the story that University of Oklahoma law professor Anita Hill had accused then-Supreme Court nominee Clarence Thomas of sexual harassment. The story led the Senate to reopen Thomas’ confirmation hearings.
Totenberg recalled how in those days – before email – she would come to the office each morning and find her voicemail filled to capacity (36 messages each day). Many of the messages were from callers saying nasty things to her because of her reporting, she said.
She noted that in those days, members of the Senate were not surprised by the allegations against Thomas because they had all seen them in reports that were shared across the aisle. She said that kind of cooperation and respect for the process seems to have been lost.
Totenberg said in the wake of acrimony and anger over the Kavanaugh hearings, she has seen people put forth ideas aimed at taking some power away from justices. She said she doesn’t view term limits on judges as serious unless those limits start at 18-20 years because in her experience, most justices take four or five years to settle into their role on the court and the work they’re doing.
One person suggested giving each president two Supreme Court nominees.
“Shoot me in the head,” she deadpanned. “I’d never get to go home at night.”
When asked about the most memorable cases she has reported while covering the court, Totenberg identified three. The 1973 Roe vs. Wade decision, which led to abortion being legalized; the court striking down the death penalty in 1972 only to reinstate it in 1976; and the 2010 Citizens United decision, which allowed political spending by organizations with public disclosure of sponsors of advertisements.
“That and subsequent decisions have really uncorked the most enormous river of cash,” she said.
In another attempt to remind people of a time when American politics and court decisions were more bipartisan and less polarized, Totenberg reminded the audience that the Roe vs. Wade decision was 7-2 with one of the dissenting justices having been appointed by a democratic president and one by a republican president.
“It really wasn’t all that controversial then,” she said. “It got more controversial over time because people cared about it.”