NPR's Totenberg: Kagan, Sotomayor 'Not Nearly as Liberal' as Predecessors

June 28th, 2011 9:28 AM

NPR's Nina Totenberg strangely cast doubt on the liberal credentials of Supreme Court Justices Elena Kagan and Sonia Sotomayor on Saturday's Early Show on CBS, claiming that "they're not nearly as liberal as justices were...thirty years ago." Totenberg also hinted that the other members of the Court were right-wing radicals: "Compared to the much more conservative members of the Court, they are liberal."

Anchor Russ Mitchell brought on the journalist for her take of the most recent term of the Supreme Court. Near the end of the interview, Mitchell noted how "this was the first full term for President Obama's two appointees, Elena Kagan and Sonia Sotomayor" and asked, "What do you think? Did we see a shift in the Court's philosophy this year at all?"

Totenberg replied, "Not really," and then skeptically claimed, as she made quote marks with her fingers, that "both of these justices were, quote, 'liberal' nominees replacing, quote, 'liberal' justices." She then made her "not nearly as liberal" label about the two female justices."

This isn't the first time in the past year that the NPR correspondent has questioned a liberal Supreme Court justice's ideological purity. On November 26, 2010, Totenberg claimed on All Things Considered that William Brennan, who served on the Court from 1956 until 1990, was "far more conservative" than his decisions let on, and portrayed him as a "devout Catholic," despite being part of the majority that legalized abortion in 1973 with Roe v. Wade.

After a final question about the possibility of retirement from the Supreme Court before the 2012 election, Mitchell referred to his guest as "the legendary Nina Totenberg" as he thanked her for her time.

Earlier in the segment, when the CBS anchor asked Totenberg what were "the most significant cases in her mind" of the recent term, she first named the Dukes v. Walmart Stores, Inc. case. This isn't surprising, as the journalist touted the same argument as the attorney representing the million-plus women suing the big box chain almost three months ago on the March 29, 2011 edition of NPR's Morning Edition:

The full transcript of Russ Mitchell's interview of Nina Totenberg on Saturday's Early Show, which aired at the bottom of the 9 am Eastern hour:

RUSS MITCHELL: First this morning, the Supreme Court wraps up its term on Monday. The Court settled some monumental cases this year, and for the first time ever, three women sat on the bench.

Here with a look ahead to Monday's final rulings, and a look back at a historical year is NPR legal affairs correspondent Nina Totenberg. Nina, good morning to you.


MITCHELL: What decisions can we expect to come down on Monday?

TOTENBERG: Well, I think the one that will interest most people is California has a ban on the sale of violent video games to minors, and the constitutionality of that is at issue. And the Court will decide that, and about ten other states have passed similar laws. We'll see what they have to say, whether that's a violation of the First Amendment guarantee of free speech. And there's a campaign finance case as well, big- testing public funding in Arizona.

MITCHELL: Got you. So, still a lot of work to do, big cases on Monday. When you look at this term so far, what are the most significant cases in your mind?

TOTENBERG: Well, I think probably we'll look back and say that the Walmart case is the most significant. That was the case where one-and-a-half million women had brought a class action against Walmart for sex discrimination. And the Court, on the key question, said- threw the case out, and said that all of the women couldn't sue as that big of a group.

Now, all nine justices said the lower courts used the wrong standard. It's going to make bringing big class-action cases very difficult. That coupled with another case- it was a consumer class action, where the court again 5-4 said the consumers couldn't sue. It's going to make them very difficult.

MITCHELL: Yeah. The funeral protest case also got a lot of attention this year as well.

TOTENBERG: That's right. That was a case where a group protested at military funerals, and the family of the dead soldiers sued and said it was a violation of their rights. And the Court said, no, you're allowed to protest at a funeral as long as you do it legally, you go where the police tell you to go, you don't protest so loudly that you invade the funeral in any way. And, as a result, I think that a lot of states will pass some sort of laws, which the Court applied would be constitutional, laws that will allow protests to be separated from the funeral by a certain number of feet, 300 feet, 500 feet, something like that-

MITCHELL: I see. This was the first full term for President Obama's two appointees, Elena Kagan and Sonia Sotomayor. Nina, what do you think? Did we see a shift in the Court's philosophy this year at all?

TOTENBERG: Not really. Both of these justices were, quote, 'liberal' nominees replacing, quote, 'liberal' justices. They're not nearly as liberal as justices were, let's say, twenty, thirty years ago. But they're still, compared to the much more conservative members of the Court, they are liberal. So the court is still split five to four on a lot of big issues.

MITCHELL: There are three justices on the Court who are over the age of 70. Now, President Obama has- what are we- about a year and a half to go in this term. Do you expect him to have the opportunity to make any other appointments this go?

TOTENBERG: Barring somebody getting sick, I doubt it. We didn't even hear a hint of- a scintilla of the idea that anybody was going to retire this year. This, you know, as the Court- tomorrow will be the last day of the Court. So, we would have- I think we would have heard it. I have no reason to believe that anybody's retiring.

MITCHELL: Okay. Nina Totenberg- the legendary Nina Totenberg (Totenberg laughs)- we thank you so much for joining us this morning. It's a pleasure to talk to you.

TOTENBERG: Thank you so much, Russ.

MITCHELL: All right, you take care.