The Volokh Conspiracy
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Did Nina Totenberg Have a Conflict of Interest in Covering Justice Ginsburg?
Based upon Totenberg's new book, a prominent legal ethicist thinks the conflict was a real one.
NPR Supreme Court reporter Nina Totenberg has a new book on her relationship with the late Justice Ruth Bader Ginsburg, Dinners with Ruth: A Memoir on the Power of Friendships. I have heard nothing but positive reactions to the book, which chronicles Totenberg and Ginsburg's relationship, which long predated RBG's elevation to the Supreme Court.
The book is a "beautifully touching story of an enduring friendship between two exceptional women," writes Northwestern law professor emeritus Steven Lubet in The Hill. But that's not all. According to Lubet the "barely acknowledged subtext in the book is a conflict of interest between Totenberg's obligations as a reporter and devotion to her friend." In his article, Lubet (who is a noted expert on legal ethics), raises questions about how their relationship may have influenced Totenberg's reporting.
Writes Lubet:
To protect Ginsburg from surprises, Totenberg routinely alerted her in advance to the topics she intended to cover, which is generally prohibited by NPR's Ethics Handbook. The rule against "previewing" questions does not apply to side jobs, but even then the handbook cautions against "entanglements that conflict with our journalistic independence."
In raising questions about whether Totenberg's coverage was influenced by her relationship, Lubet focuses on the controversy surrounding Justice RBG's comments about then-candidate Donald Trump (which I covered extensively on this blog).
Following an uproar about her flagrant breach of judicial ethics, Ginsburg issued a tepid statement of regret, calling her remarks "ill-advised" and promising to "be more circumspect" in the future.
Totenberg was scheduled to interview Ginsburg a few days later. Following her "usual practice," she told the justice that "I was going to ask her about what she had said." "That's my job," she explained, "I'm going to ask you about it as I would anybody else," telling Ginsburg, "she could get mad at me" if she wanted to.
The interview was not much to get mad at. Totenberg asked Ginsburg why she decided to "say you were sorry," rather than why she'd made the remarks in the first place. Ginsberg gave her prepared answer: "Because it was incautious." Totenberg did not raise the ethics issue, suggesting instead that the justice had merely "goofed." Even that was too much for Ginsburg. "It's over and done with, and I don't want to discuss it anymore."
Totenberg accepted the stonewalling. The obvious next question – to anyone not tiptoeing around a friend's embarrassment – was whether Ginsburg would recuse herself from cases challenging the election. That would have put Ginsburg on the spot – and any answer would have been extremely meaningful in light of later events – but Totenberg let it drop.
As it happened, Justice Ginsburg did not recuse when a case involving the Trump campaign reached the Court.
Lubet concludes:
Conflicts of interest are insidious because those who are most affected are least likely to recognize the problem. NPR's management evidently decided that Totenberg's star quality justified the risk.
UPDATE: Lubet is not the only one to offer this criticism of Totenberg. The progressive blog, Balls & Strikes, has published a review by Cornell Law School clinical professor G.S. Hans with the title: "'Dinners With Ruth' and Without Any Semblance of Journalistic Standards, By Nina Totenberg." And, to get a flavor of the review, the subtitle reads: "The veteran Supreme Court journalist has long faced criticism related to her close friendship with Justice Ruth Bader Ginsburg. Now, she's written a whole book celebrating it."
