As many on this blog are aware, I testified in favor of the confirmation of Associate Justice Neil Gorsuch at his Senate hearing. I believe him to be a jurist with a deep commitment to first principles of constitutional interpretation. It was for that reason that I was taken aback the the dismissive and careless comments on Gorsuch by National Public Radio Legal Affairs correspondent Nina Totenberg. Totenberg used the Supreme Court podcast “First Mondays” to launch into Gorsuch for what Totenberg described as pedantic and annoying conduct in conferences and oral arguments. Gorsuch’s colleagues on the Tenth Circuit as well as the broader appellate bench uniformly described him as a collegial, civil, and respectful colleague.
Totenberg bizarrely claims that she hears Gorsuch “doesn’t believe in precedent.” This may be a reference to the possibility that Gorsuch might reverse existing cases. However, all of the justices have voted to overturn prior rules. They are entitled to do so even under the narrowest contemporary view of stare decisis. As I discussed in my testimony at the confirmation hearing, Gorsuch continued to apply cases with which he disagreed as an appellate judge, particularly cases following the Chevron doctrine.
Totenberg also chastised Gorsuch for starting statements in oral argument with “Let’s look at what the Constitution says about this … It’s always a good place to start.” He is described by Totenberg as divisive and opinionated. She added:
My surmise, from what I’m hearing, is that Justice Kagan really has taken [Gorsuch] on in conference. And that it’s a pretty tough battle and it’s going to get tougher. And she is about as tough as they come, and I am not sure he’s as tough—or dare I say it, maybe not as smart. I always thought he was very smart, but he has a tin ear somehow, and he doesn’t seem to bring anything new to the conversation.
Putting aside Totenberg’s knowledge of internal deliberations, it is not clear how she gauges the relative toughness of Kagan as opposed to Gorsuch. However, Totenburg’s analysis on this and other Supreme Court issues has been challenged as revealing a strong liberal bias. What is incredible in this case is her statement that Kagan is not only tougher but likely smarter. Of course, it is not hard to imagine the response to a male legal analyst saying that Gorsuch is “smarter” or “tougher” than Kagan. Moreover, this is not some cage match in a test of toughness. It is a test of jurisprudence, not endurance.
This is not the first time that Totenberg has given Kagan a heroic, avenging image. When she was nominated, Totenberg was breathless. She heralded President Barack Obama’s nomination: “In some ways, the descriptions of Elena Kagan as dean [at Harvard University] sound a little bit like the beginning of the old Superman’ TV series. Superman, who can change the course of mighty rivers, bend steel in his bare hands!”
Totenberg has made other statements that reflect a strong bias against conservatives, including the outrageous statement in 1995 to Reason Magazine that Senator Jesse Helms deserves “retributive justice” where he would “get AIDS from a transfusion, or one of his grandchildren would get it.”
I will leave my assessment of Gorsuch’s demeanor and intellect to my earlier testimony. However, it is highly disconcerting to see this type of argumentum ad hominem from NPR.