Nina Totenberg Sincerely Apologizes For An Inexplicable Error

Nina Totenberg, to her credit, took all the blame for the Alito retirement story. She also offered a sincere apology, which I respect. Still, her error is inexplicable. Here is how the NPR Public Editor described the incident:

Totenberg was reporting on the final day of the Supreme Court session on Tuesday. As she was leaving the court, Chief Justice John Roberts was announcing upcoming retirements. Totenberg wondered why everyone else wasn’t leaving and asked someone outside the court. According to her interview that same day on All Things Considered, Totenberg asked a bystander what was going on, and the person replied “retirement announcements.” But Totenberg heard the reply in the singular, “announcement, ” and assumed it was the notice that Alito was retiring.

Let me set the stage a bit. On the last day of each term, after all the opinions are announced, the Chief Justice announces retirements of Court employees. But it is not the practice for a Justice to announce his or retirement on the last day. I think the last person to do that was Justice Thurgood Marshall, as Totenberg reported in 1991.

There was no conceivable way that Justice Alito would let the Chief Justice make that announcement from the bench, with no advance warning, with all the public present. Alito is extremely introverted. If he retired, it would be done quietly, outside the gaze of Totenberg and her colleagues. Yet Totenberg thought that a court employee meant to signal there was one singular retirement as a way of saying Alito was stepping down? As if Totenberg was getting a secret signal? That story does not plausibly pass the smell test.

NPR Executive Editor Krishnadev Calamur believed Nina because of her legendary status:

“She’s the preeminent Supreme Court reporter in the courtroom,” Calamur said. “So I’m assuming that’s what she heard. … She’s in the room. It’s like when we report opinions. I’m not waiting to see what the Times is reporting. It’s when Nina says, here’s what happened, and we do it. That’s the trust you build up.”

But does Totenberg deserve that trust? The Alito incident is just the latest in a string of questionable judgments Totenberg has made in recent years.

I’ll start with an incident that I partially reported on, indirectly. By chance, I was in the Court for Justice Kennedy’s final day on the Court in 2018. I wrote about that experience in National Review. I noted that one of the first clues was when Kennedy’s family walked into the Court.

But then everything changed. Mary Kennedy, Justice Kennedy’s wife walked into the room. Justice Kennedy was not expected to issue any more opinions, so her presence was a mystery. She was followed by (what looked like) her children and grandchildren, who took their seats in the reserved seat section. At that point, it became obvious that the entire Kennedy clan was in attendance. One of the members of the press section released an excited utterance: “Oh, f***!” The other reporters tried to figure out whether the guests were in fact Kennedy’s family members. No one quite knew for sure. But there was no more time to think about it.

The reporter who said “Oh, fuck!” was none other than Nina Totenberg. I was sitting on the left side of the bar section, which was adjacent to the press box. I didn’t feel the need to name Totenberg at the time, but I think it is now appropriate. I also didn’t publish her follow-up comment, which was something to the effect of “How could he do this to us?” The message was clear–how could Kennedy let Trump replace him. There was never any doubt about which team Totenberg was on. She was exhibiting public disappointment in Kennedy’s retirement.  Reporters are supposed to maintain some sense of neutrality in public, but Totenberg didn’t even try. Totenberg is known to make other inappropriate comments while sitting in the press box, including about me. When the bar section is filled to capacity, there are many lawyers in earshot of the press box.

In any event, this incident from 2018 reveals that Totenberg knows the usual routine of how Justice retirements are announced, which makes her story even more inexplicable.

There’s more. Totenberg kept her decades-long friendship with Justice Ginsburg secret, even though she interviewed and wrote about RBG often. Totenberg reported that Justice Sotomayor asked Justice Gorsuch to wear a mask, and he refused. The Chief Justice, and Justices Gorsuch and Sotomayor, put out a statements saying the reporting was “false,” but Totenberg stood by her story. On the day Justice Gorsuch’s confirmation hearing began, Totenberg released what was supposed to be a bombshell story about students in Gorsuch’s class. Within a few hours, the story fell apart, as Gorsuch disputed teh allegations, and another “Editor’s Note” was added. I could go on.

Has any Supreme Court reporter made so many major errors in reporting that required corrections or “clarifications”? Has any member of the Supreme Court press corp made a single error of this magnitude and kept their job?

At some point, this long string of questionable judgments adds up to a conclusion: with Totenberg, trust but verify.