NPR's Nina Totenberg Distorts Conservative Legal Scholar to Cast Clarence Thomas as a Radical

Lachlan Markay
April 22nd, 2010 11:41 AM
National Public Radio correspondent Nina Totenberg severely misquoted a conservative legal scholar to make it seems as if he considered Clarence Thomas a radical Supreme Court justice. An examination of his full statement clearly demonstrates that this was not what he actually said.

In an April 16 NPR segment, Totenberg, picture right in a file photo, sought to paint radical Berkeley law professor, and Obama nominee to the Ninth Circuit U.S. Court of Appeals, as the left's equivalent to Justice Thomas. She quoted Curt Levey, executive director of the conservative Committee for Justice as saying "Goodwin Liu is not your typical liberal. He’s very far out on the left wing, even in academia. So I think you could think of Liu as the Democratic Clarence Thomas." (Audio embedded below the fold.)

But the spliced audio in Totenberg's segment actually mis-represented what Levey said. He was not comparing Liu's and Thomas's stances on constitutional law. Here is his full statement, according to Big Journalism's Matthew Vadum (italicized portions quoted by Totenberg):
Everybody expected Obama to nominate liberals to the federal courts, and that’s what he’s done, but Goodwin Liu is not your typical liberal. He’s very far out on the left wing, even in academia. He is an unabashed defender, really advocate, of judicial activism, and add on top of that, the fact that I think everyone knows that Obama would love to groom him for a spot on the Supreme Court. Obama would love to, you know, be able to say that he nominated the first Asian to the Supreme Court. As you know, it’s been almost forty years since somebody who was not a judge was appointed to the Supreme Court. So I think you could think of Liu as the Democratic Clarence Thomas. I think everyone knows that he’s being groomed to be on the Supreme Court, and you know, that scares people because he’s to the left of even Justice Ginsburg.
Totenberg spliced two portions of that statement to misrepresent Levey's comparison. Reporting on Liu's nomination, she stated (relevant portion around the 2:13 mark):

There's considerable debate about Liu's writings, with his critics citing some passages to claim that he supports welfare as a right guaranteed under the Constitution, and his defenders citing other passages to show that Liu has ruled that out.

While Liu has an eclectic record -- he is, for example, a supporter of school vouchers and charter schools -- there's no doubt that he's also supported many liberal positions, from affirmative action in education, to gay marriage.

Curt Levey is director of the conservative Committee for Justice: "Goodwin Liu is not your typical liberal. He’s very far out on the left wing, even in academia. So I think you could think of Liu as the Democratic Clarence Thomas."
Totenberg made it sound as if Levey considered Thomas to be as far outside of the mainstream as Liu -- in the opposite political direction, of course. But Levey was actually comparing Liu to Thomas in that the latter was appointed to a lower court in an attempt to groom him for a Supreme Court nomination -- a move that Levey speculated the Obama administration is undertaking in Liu's case.

Levey told Vadum,
Thomas’s liberal detractors like to characterize him as extreme and would love to hear such a description coming from a conservative Supreme Court observer like me. But it’s an inaccurate characterization and it’s not what I said or believe. Thomas is committed to interpreting the Constitution according to its plain meaning and original intent. If that’s extreme, then so were the Founding Fathers who wrote the Constitution.
Liu, on the other hand, is extreme to, well, the extreme. His positions are archetypal of the far-left judicial activist. According to the Wall Street Journal,
Mr. Liu opined that words like "'free enterprise,' 'private ownership of property,' and 'limited government'" are "code words for an ideological agenda hostile to environmental, workplace, and consumer protections."

On the nomination of now-Justice Samuel Alito, Professor Liu was even nastier. In a statement reminiscent of Ted Kennedy's slur against Robert Bork, Mr. Liu wrote that "Judge Alito's record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse; where federal agents may point guns at ordinary citizens during a raid, even after no sign of resistance . . . where a black man may be sentenced to death by an all-white jury for killing a white man . . . and where police may search what a warrant permits, and then some."
By painting Thomas as simply Liu's political inverse, Totenberg suggested that a strict adherence to the Constitution's written word is just as radical as a total disregard for it.

Though she may agree with that sentiment, Levey does not.