Legal affairs correspondent Nina Totenberg recently drew media attention when an article she published incorrectly announced the retirement of Supreme Court Justice Samuel Alito. While the story, initially titled "Justice Samuel Alito, who wrote the opinion overturning Roe v. Wade, retires," was quickly replaced with an editor's note stating it was "erroneously published," this incident marks another in a series of notable controversies throughout the veteran journalist's five-decade career.
Totenberg, 82, has frequently found herself at the center of professional disputes and ethical discussions, reflecting a long history of scrutiny over her reporting practices and personal conduct.
Early Career Missteps and Attribution Issues
One of Totenberg's earliest professional setbacks occurred in 1972 when she was dismissed from her role as a staff writer for the National Observer due to plagiarism. The Columbia Journalism Review detailed this incident in a 1995 article, explaining that Totenberg had incorporated several paragraphs and direct quotations from a Washington Post report about then-House Speaker Thomas P. O'Neill into her own story without providing proper attribution.
Reflecting on the event two decades later, Totenberg acknowledged her error. "I was in a hurry. I used terrible judgment," she told the Columbia Journalism Review at the time. "The fact I used so many direct quotes obligated me morally to credit the Post. I should have been punished. I have a strong feeling that a young reporter is entitled to one mistake and to have the holy bejeezus scared out of her to never do it again."
Years later, in 1987, Totenberg faced criticism from Legal Times reporter Aaron Freiwald. Freiwald alleged that a story Totenberg published about then-Supreme Court nominee Douglas Ginsburg exaggerating his resume bore a strong resemblance to information he had provided her, yet she failed to credit his work. Freiwald expressed his significant displeasure to Vanity Fair at the time.
High-Profile Ethical Questions and Public Scrutiny
Totenberg's reporting came under intense scrutiny in 1992 during the contentious Supreme Court nomination of Clarence Thomas. Vanity Fair reported that she experienced a "terrible week" after facing widespread criticism from prominent Republicans for publicly reading portions of Anita Hill's confidential affidavit to listeners. Hill had accused Thomas of sexual harassment, and critics suggested Totenberg's actions nearly derailed the nomination.
The controversy escalated into a heated confrontation between Totenberg and Republican Senator Alan Simpson of Wyoming. Vanity Fair recounted that after an appearance on Nightline where Simpson assailed her methods and ethics, the two engaged in an "epithet-strewn melée" on the street. Simpson reportedly stated it would be "absurd" to consider Totenberg an "objective" reporter. Vanity Fair added that Totenberg found herself at the "bull's-eye center of a media catfight among the Washington press corps" following these events.
In 1995, Totenberg again drew criticism for a remark regarding Republican Senator Jesse Helms, who had proposed reducing funding for AIDS research. She suggested Helms might "get AIDS from a transfusion or one of his grandchildren will get it" as a form of "retributive justice." She later expressed regret for the statement, telling a news outlet in 2010, "It was a stupid remark. I'll pay for it for the rest of my life."
Journalistic Ethics and Personal Relationships
A new wave of scrutiny emerged in 2020 following the death of Justice Ruth Bader Ginsburg. In an obituary she authored, Totenberg disclosed that she had maintained a close friendship with Ginsburg throughout the Justice's entire tenure on the Supreme Court. This revelation, made after Ginsburg's passing, raised questions because Totenberg had covered the Supreme Court, including Ginsburg, for many years without publicly disclosing the extent of their personal relationship.
Totenberg detailed in her piece how Ginsburg and her husband would frequently "scoop me up" for social outings or "dinner at their apartment," describing these evenings as "a kind of embrace."
The Washington Post subsequently published an article by media reporter Paul Farhi, exploring whether Totenberg's relationship with Ginsburg constituted a "conflict for NPR." Farhi's reporting highlighted that traditional journalistic practice advises against such entanglements or, at minimum, requires disclosure to allow audiences to assess potential bias. He noted that Totenberg and her employer rarely disclosed the friendship in her extensive coverage of the court, though she dismissed concerns that the relationship compromised her journalism.
Media writer Tom Jones of the Poynter Institute echoed these concerns, stating it was "a close friendship that a journalist really should not have with someone they cover." Jones contended that such a friendship should not have developed, or if it was significant, Totenberg should have recused herself from covering Ginsburg or the Supreme Court entirely.
Disputed Reporting on the Supreme Court
In 2022, Totenberg's reporting again sparked controversy with a story claiming that Justice Neil Gorsuch refused to wear a mask on the Supreme Court bench despite requests from Justice Sonia Sotomayor. The story, titled "Gorsuch didn't mask despite Sotomayor's COVID worries, leading her to telework," asserted that Chief Justice John Roberts had instructed the justices to wear masks due to the Omicron surge, particularly given Justice Sotomayor's diabetes. Citing "court sources," Totenberg reported that Sotomayor had expressed feeling unsafe near unmasked individuals before Roberts' decision.
Totenberg's article stated, "They all did. Except Gorsuch, who, as it happens, sits next to Sotomayor on the bench. His continued refusal since then has also meant that Sotomayor has not attended the justices' weekly conference in person, joining instead by telephone." The report further characterized Gorsuch as a "prickly justice, not exactly beloved even by his conservative soulmates on the court."
However, these claims were disputed by Supreme Court sources and a law clerk for Justice Gorsuch. A source at the Supreme Court stated there had been no blanket admonition from Chief Justice Roberts for justices to wear masks, nor did Justice Sotomayor make such a request to Gorsuch. Consequently, the source affirmed there was "also no refusal by Justice Gorsuch." Despite Sotomayor and Gorsuch issuing a joint statement denying that Sotomayor had asked Gorsuch to wear a mask, the news outlet stood by Totenberg's reporting.
