"Totenberg’s confounding book, subtitled 'A memoir on the power of friendships'... always comes back to friendships...."

"[A]s the pages go by, and Totenberg and her friends become more powerful, the theme becomes increasingly uncomfortable — and increasingly revealing.... [S]he seems to accept and share her insider friends’ worldviews. In this universe, it seems, we’re all on the same team. The jurists Totenberg spent her career covering, for instance, are invariably portrayed as thoughtful stewards of the Constitution, even when they err.... One theory about Ginsburg’s decision to stay on the court was that, sharp as she was, she lived in a bubble that left her unable to appreciate how mean and extreme politics had become. If so, the convivial vibe depicted by Totenberg didn’t do much to clear things up. In fact, Totenberg became part of the RBG hype machine. As the justice became an unlikely celebrity, she and Totenberg developed a sort of stage act, conducting public interviews before ticketed audiences. Totenberg would share questions in advance. The responses were more thoughtful that way, which it seems was really what the evenings were trying to show. With its odd, priestly culture, the court is particularly susceptible to this sort of veneration."

 
From "Nina Totenberg Had a Beautiful Friendship With RBG. Her Book About It Is an Embarrassment. Her memoir shows everything that’s wonderful about friendship — and awful about insider culture" by Michael Schaffer (Politico).

Totenberg's book is called "Dinners With Ruth."

"Could you imagine a congressional reporter doing a book called Dinners With Harry Reid, tracing shopping excursions and intimate family moments with the late majority leader, who died the year after Ginsburg?"

"For those seeking insights about any remorse Ginsburg might have felt about not retiring while a Democrat was safely serving as president, Totenberg offers little..."

"... possibly because Ginsburg was not always forthcoming with her; of a meeting the justice had with Barack Obama at which the president gently tried to raise the question of her retirement, Totenberg says, 'She never told me about it.' Nor does she report how Ginsburg responded to the news of Donald Trump’s election. But she does seem to speak with authority when she explains that Ginsburg had been eager to give 'the first female president the power to nominate her successor.' And at the time of the election, Totenberg points out, Ginsburg was not in a health crisis. 'It was a gamble, and she lost,' she writes. Rather than defending Ginsburg’s choice to remain in office, she emphasizes how valiantly Ginsburg fought to stay alive and keep working once Trump was elected....  In one indelible image, Totenberg knocks on the door of a hotel room to find Ginsburg, hair down, desperate for Totenberg to leave so she can continue her frantic search for a medicine to ease her stomach troubles...."

Writes Susan Dominus, in "Nina Totenberg Opens Up About Her Friend Ruth Bader Ginsburg/In her memoir, 'Dinners With Ruth,' the NPR journalist writes about their parallel ascents in fields that were not friendly to women" (NYT).

We could have lived without that "indelible image," but books must be written. 

IN THE COMMENTS: Some people are saying it's unethical for journalists to be friends with the subjects of their writing. But I said, "Read 'The Journalist and the Murderer,' about the journalist’s method of fake-befriending the subject. Isn’t that what we’re seeing here?"

Here's an excerpt from Janet Malcolm's "The Journalist and the Murderer," the best book I ever read about journalism:

"Reporting that Justice Sotomayor asked Justice Gorsuch to wear a mask surprised us. It is false. While we may sometimes disagree about the law, we are warm colleagues and friends."

 A statement from Sotomayor and Gorsuch, tweeted by the NYT reporter Adam Liptak.

Also tweeted by Liptak, a statement from Chief Justice Roberts: “I did not request Justice Gorsuch or any other Justice to wear a mask on the bench.”

Here's Liptak's article at the NYT, giving the background: 

"At oral argument, Justice Elena Kagan, one of the court's best questioners, sometimes... just shuts down... Still, her anger is often palpable, the color literally draining from her face. "

"And Justice Stephen Breyer on occasion just holds his head.... There isn't a lot of love lost among the court's six conservatives either.... If you watch carefully, you can see conservative eyes rolling from time to time.... [M]any of the conservatives are vying for the position of intellectual leader of the conservative majority, while the chief justice privately worries about going too far too fast. There are, in addition, some long and perhaps not so buried resentments among the conservatives. Alito on occasion barely conceals his disdain for Roberts.... In recent decades, the court has built its legitimacy on a certain degree of moderation — giving the left some of what it wanted and the right some of what it wanted. The left got gay rights and gay marriage, and some limits on presidential power exercised in the name of national security. And the right got expanded religious liberty and expanded free speech, which brought with it expanded corporate spending in elections.... But... the court's conservatives detest each other in the same way that the justices did in the 1940s. Back then, they couldn't agree on anything because, as [Noah] Feldman notes, 'they hated each other.' and even though they might have been able to to reach a consensus, they didn't 'because the hatred was so deep.' To cite just one example of how bad it was, Justice Felix Frankfurter called Justice William O. Douglas 'one of the completely evil men I have ever met.' And Douglas referred to the Austrian-born Frankfurter, who was Jewish, as 'Der Führer' and that was during World War ll."

Writes Nina Totenberg in "Supreme Court justices aren't 'scorpions,' but not happy campers either" (NPR). 

The "scorpion" quote refers to "9 scorpions in a bottle," a famous phrase that Totenberg doesn't give a source, perhaps because it's so famous, but perhaps because the usual attribution — to Oliver Wendell Holmes Jr. — seems incorrect. Noah Feldman's book "Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices Paperback" begins with the quote "The Supreme Court is nine scorpions in a bottle," attributed to Alexander Bickel, law clerk to Justice Felix Frankfurter, 1952–53, and drops this footnote:

"If this is held to be unconstitutional, what is going to happen with whatever list of really dirty words still exist and all of their variations?"

"There's going to be a mad scramble by people to register these marks. And the ones who get there first are going to have exclusive -- they're not unlimited. What's going to -- there's going to be -- those who get there first are going to be the ones who have these."

Asked Justice Alito in yesterday's oral argument in Iancu v. Brunetti (PDF), challenging the Patent and Trademark office's rejection of the trademark "Fuct."

By the way, no one in the transcript ever says "Fuct" or "fuck" or whatever other "really dirty words" might be rolling around in Justice Alito's head. They say things like: "this mark would be perceived by a substantial segment of the public as the equivalent of the profane past participle form of a well-known word of profanity and perhaps the paradigmatic word of profanity in our language."

The lawyer for the designer that uses the trademark argued that the law violates the First Amendment: "For overbreadth, I believe it's only necessary to show that it covers a substantial amount of speech. And the provision is so incredibly overbroad, because if it's taken at its word ['offensive'] -- at its -- on its face, Steak 'n Shake can't be registered because some people believe you can't -- a substantial portion of Americans believe that eating beef is immoral. And so now that's unconstitutional...."

Here's Nina Totenberg's report on the argument: "Supreme Court Dances Around The F-Word With Real Potential Financial Consequences."

"But it is unlikely that Kennedy will remain on the court for the full four years of the Trump presidency."

"While he long ago hired his law clerks for the coming term, he has not done so for the following term (beginning Oct. 2018), and has let applicants for those positions know he is considering retirement."

Writes Nina Totenberg in "Justice Neil Gorsuch Votes 100 Percent Of The Time With Most Conservative Colleague" (NPR).

ADDED: Count the assumptions in the quote in the post title. In the comments, Bad Lieutenant fixes the headline to: "But it is unlikely that Kennedy will remain on the court for the full four years of the Trump presidency's first term." I read that to Meade and he observes that there is a second assumption. Do you see what it is?

"At Timothy Foster's trial in Rome, Ga., the prosecutor used four of his nine peremptory strikes to knock out all the qualified black jurors in the jury pool."

"The defense cried foul, but the trial judge and every appellate court after that, including the Georgia Supreme Court, accepted the non-racial reasons. The prosecutors gave as many as a dozen reasons for striking each black prospective juror. These justifications included things like 'failure to make eye contact,' looking 'bored,' being 'divorced,' or 'a social worker,' and so on."

From Nina Totenberg's report on a case that's up for oral argument in the Supreme Court today.

"Every generation has its great personal controversy, a name or two that evoke passion and fury everywhere from the dinner table to the editorial pages."

"Our parents had Alger Hiss and Whittaker Chambers. Their parents had Nicola Sacco and Bartolomeo Vanzetti. Our generation has Clarence Thomas and Anita Hill."

Those are the opening lines of Nina Totenberg's 1994 review of "Strange Justice: The Selling of Clarence Thomas," by Jane Mayer and Jill Abramson. I was looking up old reviews of the book, because the fall of Jill Abramson is the big story of this week (in the United States, anyway). I thought the lines were funny because who knew in 1994 that Monica Lewinsky would soon arrive on the national scene, delivering her extra-large pizza-with-everything that, as a controversy, would eclipse this little pubic-hair-on-a-Coke-can that had (such a short time ago) seemed so generation-definingly meaningful?

And now, here we are, 20 years later, and Abramson has risen beyond her co-authored book about the empowered black man and the gender victim, up through the heights of the NYT and summarily ousted, herself possibly a gender victim, and — look! — they replaced her with a black man. That's the kind of strange justice called poetic justice. It's hard to sort through all of this and figure out what was fair and what was unfair. Alger Hiss and Sacco and Vanzetti — they were all guilty, right? And what of Clarence Thomas? Well, let's see what Totenberg said about what Mayer and Abramson said:

There is no way in a short review to summarize all the bits and pieces of evidence that Mayer and Abramson have amassed. But among other things, they have turned up many new witnesses who testify that Thomas had an avid interest in pornography at the time of the alleged Hill harassment — harassment that Hill said involved his talking to her about pornography. One woman, Kaye Savage, a civil servant who worked in the Reagan White House and who was friends with both Thomas and Hill, describes her shock when she walked into Thomas' apartment and found the walls covered with pictures of naked women. Several co-workers are quoted as saying they heard of Thomas' making remarks about pubic hairs on Coke cans — one of the most peculiar things that Hill alleged, and one that she was accused of making up.

Are "pictures of naked women" pornography? I wonder if civil servant Kaye Savage is shocked when she walks into an exhibition of impressionist paintings. So... the evidence is, the man liked pornography. That puts him into a set of just about 100% of men. Now, if you told me civil servant Savage was shocked when she walked into Thomas's apartment and found the walls covered with pictures of Coke cans or pictures of single strands of pubic hair, that would be some impressive corroboration.

Totenberg continues:

Mayer and Abramson have also spent a considerable amount of time examining the lives, loves, careers and ambitions of Thomas and Hill. Thomas comes out as an often brooding, angry and contrary man....

The angry black man. The classic stereotype of a black man. And now, replaced by a reputedly amiable black man, Jill Abramson is exposed to the world as the classic stereotype of a successful woman: the bossy bitch.

The arc of a generation is long, but it bends toward poetic justice.

"Nino's No-No."

I chose Nina's "Nino's No-No" headline from among the possible headlines to blog about that mistake Justice Scalia made the other day, and I see that Nina Totenberg is pleased with her own headline writing:

[W]hen a Supreme Court justice pointedly cites the facts in a decision he wrote, and gets them exactly wrong, it is more than embarrassing. It makes for headlines among the legal cognoscenti.

I'm not sure I rank as one of the cognoscenti, but here's my headline for Justice Antonin Scalia's booboo: "Nino's No-No."

Nina notes that some Scalia law clerk " is — to put it in delicate terms — likely having anatomical changes made to his or her body." I think that's a reference to the old guillotine metaphor heads must roll.

Or am I inclining toward French imagery because Scalia's horrible error appeared right under a subheading that read "Plus Ça Change: EPA's Continuing Quest for Cost-Benefit Authority"?

If you're going to dissent, criticizing the comprehension of others, and you get flashy about it with attention-getting language — like "Plus Ça Change," which requires more than the ability to read French — you're glaring light on any mistakes of your own you may make. If you take an imperious tone, you're setting yourself up for a harder fall if you trip.

The "Plus Ça Change" phrase has, along with the correction of the mistake, been replaced by the very modest "Our Precedent."

"Plus Ça Change" requires more than the ability to read French because it's only the beginning of a longer phrase, and the meaning is only understood by those who know how the phrase ends:  "Plus ça change, plus c'est la même chose." But it's just what is a reasonably well-known aphorism in English: The more things change, the more they remain the same.

The French aphorism, by the way, comes from the 19th century writer Jean-Baptiste Alphonse Karr, who also said, on the topic of abolishing the death penalty: "Je veux bien que messieurs les assassins commencent"/"Let the gentlemen who do the murders take the first step."

When Nina Totenberg is calling affirmative action "racial preferences," affirmative action is in trouble.

Here's her report — at the NPR website — on yesterday's oral argument in a case she doesn't mention the name of but which I happen to know is Schuette v. Coalition to Defend Affirmative Action. This is the case where the people of Michigan — after the Supreme Court approved of the University of Michigan Law School's use of race in admissions — amended their constitution to require that the state "not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin." Another way to put that is to say: The state constitution bans affirmative action.

Under U.S. Supreme Court case law, affirmative action in university admissions does not violate the Equal Protection Clause of the U.S. Constitution when it is done in a way that is narrowly tailored to the compelling interest in the benefits of classroom diversity. In Schuette, the question is not whether the university can choose not to have a policy of affirmative action, but whether the policy against affirmative action can be put in the state constitution — where, as a political matter, it becomes difficult to change. The idea is: 1. The political process has been restructured along racial lines, and 2. That restructuring violates Equal Protection.

It's a difficult argument to make, since it sounds like choosing equality imposes inequality, but there are a couple old cases upon which to build. I just want to focus here on Totenberg's (perhaps) careless adoption of the state's characterization of affirmative action as "racial preferences." Boldface added:

Students seeking to enact or get rid of other preferences can lobby the regents, [the ACLU's Mark] Rosenbaum observed. But racial minorities cannot lobby for reinstatement of consideration of race in college and university admissions decisions. Moreover, he said, to get back their preferences, minority students would have to embark on a difficult and multimillion-dollar campaign to re-amend the state constitution in a state that is more than three-quarters white.

Also arguing against the referendum was lawyer Shanta Driver. Justice Stephen Breyer posed this hypothetical to her: Most cities have "a vast number of administrators" of all kinds of programs. Suppose an administrator of one project decides to adopt a racial preference, for a good reason, but then the city council votes to abolish that preference. Would that be unlawful?

"No," replied Driver. Breyer pressed on, asking "Where's the line?" How do you avoid giving every individual administrator the power "to decide on his own whether to use racial preferences without a possibility of a higher-up veto?"

So there's Justice Breyer saying it too. Perhaps Totenberg picked up the cue from him. It seems to me, if you want affirmative action to be accepted as important, good, and — as we say in legal doctrine — compelling, you don't want to encourage the habit of thinking of it as preferences, which seem to be special benefits that some people get because of their race. You want people to think in terms of taking into account all of the many factors that play a role in the university's practicing of a subtle art of composing a student body with a marvelously fine-textured, beneficial-to-all diversity.

If that way of thinking is lost, affirmative action is doomed.

NPR's embarrassing headline: "In Voting Rights Arguments, Chief Justice Misconstrued Census Data."

The article is by Nina Totenberg, who presumably didn't write the headline, and it makes a somewhat abstruse point about the basis for a set of questions that the Chief Justice asked at oral argument.

Roberts' questions and conclusion appear to be taken from a census survey cited in a lower court dissent. 

"A lower court dissent" is a funny way to refer to the D.C. Circuit Court of Appeals case that is under review! Roberts pulled something out of the case that the Court is working on. Under the circumstances, it would be bizarre if the Solicitor General didn't get the reference. (Check the transcript PDF at page 32.) Tapping material in the lower court's opinion is predictable and perfectly mundane. Totenberg glosses over that to stress the data underlying the Court of Appeals judge's opinion, which, she tells us, comes from Census Bureau data that have such a wide margin of error that it doesn't really mean much. Well, if that's such an important point, why didn't the Solicitor General say that in the oral argument?! Here's what we got instead:

CHIEF JUSTICE ROBERTS: [D]o you know which State has the worst ratio of white voter turnout to African American voter turnout? 

GENERAL VERRILLI: I do not.

CHIEF JUSTICE ROBERTS: Massachusetts. Do you know what has the best, where African American turnout actually exceeds white turnout? Mississippi. 

GENERAL VERRILLI: Yes, Mr. Chief Justice. But Congress recognized that expressly in the findings when it reauthorized the act in 2006. It said that the first generation problems had been largely dealt with, but there persisted significant -­ 

CHIEF JUSTICE ROBERTS: Which State has the greatest disparity in registration between white and African American? 

GENERAL VERRILLI: I do not know that. 

CHIEF JUSTICE ROBERTS: Massachusetts. Third is Mississippi, where again the African American registration rate is higher than the white registration rate. 

Maybe saying "I do not know," Verrilli secretly meant that the Census data was so rough that no one could really "know" such facts, but the transcript shows a blank statement of lack of knowledge and an effort to shift away to the subject of what findings Congress relied on. If the statement in the dissenting opinion (written by Stephen F. Williams) was so unreliable, Verrilli should have shot it down neatly and quickly. 

He didn't. Totenberg is doing cleanup work. She went out and talked to "Census officials" who told her that "these numbers are simply not reliable for state-by-state comparisons because of the high margins of error in some states." That's useful to know, as the issue in the case has to do with how closely the Voting Right Act tracks the actual problem of voting rights violations in the states.

But "Chief Justice Misconstrued Census Data"?! Why doesn't NPR care about its reputation for journalism? What an embarrassing display of eagerness to discredit Roberts! Totenberg's article isn't about Roberts misconstruing anything. It's about the relatively low value of Census data that Judge Williams used in his dissenting opinion. If that material was so terrible, Verrilli fell short at oral argument.
 
ADDED: Pepperdine lawprof Derek T. Muller emails noting Totenberg's focus on 2010 census data, when the relevant data — in the Court of Appeals case and for the purposes of the 2006 reenactment — is the 2004 data:

Massachusetts SOS miffed that John Roberts said Massachusetts has "the worst ratio of white voter turnout to African-American voter turnout."

The Chief Justice was questioning  Solicitor General Donald Verrilli in the oral argument about the federal Voting Rights Act (which treats some states differently from others based on voting statistics from 1972). The Chief also pointed out that Mississippi has the "best" ratio.

Massachusetts Secretary of State William Galvin defends his state:

“It’s just disturbing that the chief justice of the United States would spew this kind of misinformation.... He’s wrong, and in fact what’s truly disturbing is not just the doctrinaire way he presented by the assertion, but when we went searching for an data that could substantiate what he was saying, the only thing we could find was a census survey pulled from 2010 … which speaks of noncitizen blacks...We have an immigrant population of black folks and many other folks. Mississippi has no noncitizen blacks, so to reach his conclusion, you have to rely on clearly flawed information.”

The 2010 tables show that Massachusetts does have a high discrepancy between turnout of white and black voters, but is in line with several other states, including Minnesota, Kansas and Washington, which actually has a wider ratio. The states are also similar on registration numbers. Additionally, the margin of error on each of these states’ data is over 10 percentage points, and many states on the list had populations of blacks so small, data wasn’t even available.

I'm sure the Chief was relying on something. Anyone know what it was? In any case, the basic point is intact: There's a disconnect between the problem the act seeks to rectify and the conditions among the states today. 

ADDED: Roberts was apparently referring to material in the dissenting opinion in the court below (the D.C. Circuit Court of Appeals).  The underlying data is from the Census Bureau. Nina Totenberg having talked to "Census officials" who explain why their data is unreliable, writes an article that I critique here.

"Supreme Court Weighs Future Of Voting Rights Act."

Nina Totenberg reports on the case that is up for oral argument this morning.

The provision at issue in Wednesday's case applies only to specific parts of the country where discriminatory voting procedures were once rampant. It covers all of nine states, mainly in the South, plus parts of seven other states. To head off discriminatory voting procedures before they happen, the law requires covered areas to get approval from federal officials before changes can take place. So, for example, if an Alabama town wants to change polling places, or to change from an elected board to an appointed board, or to annex another part of the county, it has to first get permission from the Justice Department or a federal court in Washington, D.C.

Congress came up with the formula in 1965 to cover areas of the country that had a history of blatant, even violent, discrimination in voting; but the formula has not been changed since 1975, and it still relies on election data from 1972. That's the crux of the issue before the court now: Whether times have changed so much that Congress, in reauthorizing the law in 2006 without updating the formula, violated the Constitution.

The congressional vote in 2006 was overwhelmingly and astonishingly bipartisan, with the Senate voting unanimously to extend the law and the House voting 390-to-33.

Are you so easily astonished? Politically, it's hard to vote against this law, with its dramatic historic momentum. But the Court needs to address problem of treating some states differently from others, relying on a formula that uses statistics from 1972.

Under the law, any jurisdiction with a clean record for 10 years could bail out, and some have done just that. There is also a provision to bail in jurisdictions that can be shown in court to have consistently misbehaved. But basically the law was unchanged — all the areas that had been subject to preclearance before 2006 still were — and Congress simply extended it for another 25 years.

"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.