Totenberg: Kagan Appears Smarter and Tougher Than Gorsuch

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.

440px-Elena_Kagan_Official_SCOTUS_Portrait_(2013)440px-Associate_Justice_Neil_Gorsuch_Official_PortraitPutting 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.



309 thoughts on “Totenberg: Kagan Appears Smarter and Tougher Than Gorsuch”

  1. I think Ms. Totenberg’s comments were very insincere and borderline ridiculous.

    The purpose of judges/justices is not to change laws just because they have a strong personal view on what the law should say. Their duty is to recognize that they are a part of the balance of the national legal system, and that they are only to interpret what the law says.

    It is fundamental to the validity of any law to use the Constitutional test of whether it does or does not violate the scope of the types of laws permitted to be enacted by the legislature. There is a blanket declaration that the power to enact laws shall be granted to the legislative branch of government, exclusive of any other branch. In my personal opinion, any law that grants rule-making authority to the executive branch of government is illegal on its face; this is something that the legislative branch should not be permitted to delegate. But that’s an argument for another time and place.

    To state that a judge is “weak” because of relying upon the Constitution instead of their own thoughts and biases as to what the law says (or should say) is not the way to operate when a judge. A judge should be limited to applying the law as written, without bringing their own opinions of what the law should say, when making any decision from the bench.

  2. As for Von Totenberg as the socialist extremists of the progressively regressive are seeking to move their version of the center somewhere to the left of Lenin, Pelosi, Warren and Lopez-Castro and he left stream media and Fox AP has moved left to be the sole occupants of the center so has PBS abandoned any pretense of considering all things.

    But it does no good the real center in a Representative Constitutional Republic IS The Constitution and there’s nothing any of the socialist versions can do to change that. National, International, Democrat or Progressively regressive.

    For that our former citizens who rejected the social contract but failed to depart should be ejected, citing their own choice, to go find their non existent democracy somewhere else. Tina would make a suitable cheerleader

  3. Diane, I don’t think I was commenting on Nina rather I was commenting on your rhetoric.

    “Diane, your writing is very pretentious. Look at how clear and accurately mespo writes. He doesn’t try to impress and thereby is impressive while you are just confused and disjointed. “

  4. “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.” ”
    Gorsuch is completely right about this, and Totenberg reveals her political bias by not agreeing with him.

  5. It just might be that Tottenberg is on to something. It just might be true that Kagan is smarter and tougher than what’s-his-name.

    1. Not possible.Kagan is just one of a few awaiting the battle to be Losers Leader. I got to PBS programs the other day and damn if it didn’t remind me of Pacifica Network the original home of the snowflakes..

    2. “It just might be that Tottenberg is on to something. ” Or perhaps she is just ON something

  6. The high and mighty one wrote: “This is unsurprising. Interestingly, Totenberg has admitted in other venues that she’s intellectually mediocre (“I read a lot of mysteries”). Her audience indubitably has many people in it who would insult Sarah Palin. Both Palin and Totenberg enrolled in a J-school ensconced in a research university; Palin finished her degree, Totenberg didn’t.” -The Spinner

    “Doctor of Humane Letters to NPR’s Totenberg”

    “Legal reporter closes the circle decades after last class”


    Some four decades after her last semester at Boston University, veteran National Public Radio legal affairs reporter Nina Totenberg has at last capped off her educational journey.

    “I have more than a dozen honorary degrees, but this one is special because it finally closes the circle,” she says.

    Totenberg, daughter of famed violinist Roman Totenberg, a College of Fine Arts music professor emeritus, will receive an honorary Doctor of Humane Letters at the 138th Commencement exercises on Sunday, May 22. Totenberg (COM’65) studied journalism at Boston University, but left before graduating to begin her career at the Boston Record-American and the Peabody Times. She then worked in Washington, D.C., reporting for Roll Call, the National Observer, and New Times magazine before moving into broadcast journalism at National Public Radio in 1975. She has since become one of the most respected and recognized figures in American radio….

    BU Today: Why did you leave BU, and do you have any regrets?

    Totenberg: The truth is I really don’t have any regrets. I left early because I was just not a school person. I didn’t love going to classes, and I desperately wanted to be a reporter. My mother, God bless her late, great self, said, “Well, what are you waiting for? Make a try at it. The worst you can do is not succeed, in which case, you can always finish.”

  7. SIDEBAR –


    “McCain Linked to Russian Oligarch in Mueller’s Probe”

    WASHINGTON, D.C. – Before Special Counselor Mueller hinges his investigation on emails Paul Manafort sent to Russian oligarch Oleg Deripaska, a billionaire aluminum magnet, he should investigate former Sen. John McCain’s ties to Deripaska in 2006, when McCain was preparing to run for president.

    Deripaska, often cited as one of Russia’s most wealthy billionaires, established his political credentials by marrying the granddaughter of Russia’s late President Boris Yeltsin in 2001, about a year after Russian President Putin signed a decree granting legal immunity to Yeltsin’s family.

    A staunch supporter of Putin, Deripaska built his fortune as an aluminum magnet, using the immunity and power he derived from marrying Yeltsin’s granddaughter to leverage Moscow’s organized crime mafia into supporting business deals favorable to Moscow both in Russia and in Eastern European countries that were part of the former Soviet Union.

    The complexity of understanding Russian and Ukrainian politics will make Mueller’s case against Manafort beyond the capability of any judge or jury to sort out fully, especially if Mueller intends to hang Manafort over his relationship with Deripaska.

    McCain’s ties to Deripaska

    On January 25, 2008, Jeffrey Birnbaum and John Solomon reported in the Washington Post that Rick Davis, then Sen. John McCain’s campaign manager, helped arrange two meetings between McCain and Deripaska in 2006 when McCain was overseas on official congressional trips.

    When the first meeting was arranged, in January 2006, Davis was a partner with Manafort in Davis Manafort, then a Washington-based lobbying firm that was being paid to provide political advice to pro-Russian and oligarch-funded candidates in Ukraine, according to the Washington Post report. Davis was McCain’s campaign manager for both his serious presidential runs, in 2000 and again in 2008.

    Birnbaum and Solomon also noted that at the time of the meeting with Deripaska, McCain was publicly supporting Viktor Yuschenko in Ukraine, a pro-Western reformer who led the 2004 Orange Revolution and was poisoned by dioxin during the campaign. In 2004, Manafort and Davis worked for Yuschencko’s opponent, Viktor Yanukovych, who was backed by Putin, and his Party of Regions.

    The Washington Post described the January 2006 meeting between McCain and Deripaska as follows:

    The first gathering that brought McCain and Deripaska together occurred in January 2006, when McCain was part of a congressional delegation trip. He and a small group of senators, including Saxby Chambliss (R-Ga.) and John E. Sununu (R-N.H.), met for a drink near Davos, Switzerland, at an apartment where they were greeted by Davis and Deripaska. The group then went to a dinner at the ski chalet of Peter Munk, founder of Barrick Gold, the world’s largest gold-mining company, based in Toronto. Participants at the buffet dinner said Munk complimented his sometime business partner Deripaska during his brief remarks to the 40 or so guests.

    The Washington Post noted the second meeting took place even months later, in August 2006, Davis attended a social gathering attended by McCain and Deripaska in Montenegro, another Eastern European country Davis and Manafort were representing at that time.

    Birnbaum and Solomon noted Davis was a paid consultant to the governing party in Montenegro. Following the dinner, a group from the dinner took boats out to a nearby yacht in the Adriatic Sea, where champagne and pastry were served, celebrating McCain’s 70th birthday, though neither McCain nor Davis subsequently recalled Deripaska being on the yacht for the birthday celebration.

    The yacht party was hosted by Italian con-man Rafaello Follieri and his movie-star girlfriend Anne Hathaway, at the time when Follieri, represented by Doug Band’s Teneo consulting firm had committed a $1 million-dollar contribution to the Clinton Foundation.

    In 2008, Follieri was convicted of defrauding investors of up to $6 million dollars by posing as an agent of the Vatican.

    Follieri pled guilty to fourteen counts of conspiracy, money laundering, and fraud, and served almost five years in a Pennsylvania prison before he was deported back to Italy.

    “Moscow on the Mediterranean”

    Reporting on the McCain meeting with Deripaska in Montenegro in August 2006, the Nation noted that Davis and Manafort had obtained a several-million-dollar contract to help run Montenegro’s independence referendum campaign in 2006.

    McCain also supported Montenegro independence, endorsing what the Nation described as a “simplistic notion of ‘independence’ from a country America had been at war with, in the late 1990s was all that mattered.”

    The Nation noted that Putin and the Kremlin were agreeable, noting that Russia had generally sided with Serbia against the West during the Balkans wars of the 1990s, but “for the Kremlin, cutting Montenegro free from Serbia meant dealing with a Montenegro that could be more easily controlled.”

    The Nation observed that the Kremlin had nicknamed Montenegro as “Moscow by the Mediterranean,” largely because “Russian oligarchs (including Deripaska) control huge chunks of the country’s industry and prized coastline – and Russian exert a powerful influence over the country’s political culture.”

    The Nation commented that “Russia’s virtual takeover of Montenegro was well underway in January 2006, when Rick Davis introduced Deripaska to McCain at a villa in Davos, Switzerland.”

    The Nation also reported that when Rick Davis arranged the meeting in Montenegro between McCain and Deripaska, Davis was lobbying hard for Davis Manafort to run the Montenegro referendum campaign, and Bob Dole’s lobbying firm had been paid $1.38 million by the Montenegro government since 2001 to lobby for it in Washington.

    “Whether it was because of Dole or, as some speculate, the Russians, Davis got his deal,” the Nation concluded.

    U.S. intelligence gets into the act

    Reporting in 2017 on the McCain meeting with Deripaska that happened in 2006, investigative reporter Sara Carter noted the McCain story is “a poignant reminder the Putin’s allies have long sought U.S. political influence, and that U.S. counterintelligence often focuses on keeping Americans from being compromised by foreigners.”

    Carter noted that in 2006, U.S. intelligence officials were concerned about McCain’s contacts with the meetings Rick Davis arranged with Deripaska, noting that in 2006 the administration of President George W. Bush opposed Yanukovych, “fearing he was anti-democratic and aligned with Putin after Yanukovych’s party ousted the pro-democratic and Western-friendly prime minister Yuschenko.’

    Carter stressed that McCain backed Yuschenko, even though his campaign manager’s firm, Davis Manafort, supported the pro-Russian opposition leader Yanukovych.

    1. It seems the wackjobs and wingnuts are responding to the Pravda Faux News ruling that McCain is verboten for pointing out the emperor-wannabe was no brain.

      1. Marky Mark Mark – McCain has always spoken out of both sides of his mouth simultaneously. He has a Russian problem of his own right now, besides being a dead man walking.

        1. McCain should be replaced by the Arizona governor for incompetence and diminishing capacity. There must be something similar to the 25th amendment in Arizona.

          1. George – we did put in term limits for ALL officeholders but the SC decided it did not apply to federal officeholders. Arizona does have recall though, but by the time they got enough signatures and got it on the ballot, McCain would probably be dead. It is just waiting him out. He is a dead man walking.

            1. Presumably Arizonans see the light regarding the frauds and liars, McCain and Flake. 8 years of voting for repeal of the ACA then reversing their votes when Trump will make them effective. They should have been tarred and feathered and run out of town on a rail, metaphorically speaking. Career politicians are worse than used car salesmen. Absolute power corrupts absolutely. There are innumerable aspects of decency that the Founders “understood” and intended but failed to codify unfortunately.

          2. Wouldn’t be allowed under the Supreme Court ruling denying the use of recall which is what you are talking about and what most States do not have. Personally I’m in favor of it under the rule of the States being in charge of their own elections but the wrong party was in power.which is to say the Socialist Left and their RINO right wing. that came about when Sen. Packwood of Oregon was put under Oregon’s recall law. Never been challenged so it would take an Amendment to the Constitution and not some rogue in a long black shirt from Hawaii. The other part of the question is the Governor might nominate but would the Arizona legislature support AND would the majority of the Senate agree to seat the newbie. Since McCain is doing the left more good than harm no help from them especially to set a new precedent which almost happened with Adam Clayton Powell.

            Giving it some thought it should not be something similar for the federal level unless their was an agreement to remove any federal block to the slave states without recall using it for their elected delegates.

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