Nina Totenberg’s conflict of interest

Nina Totenberg’s new memoir, “Dinners with Ruth: A Memoir on the Power of Friendships,” is the beautifully touching story of an enduring friendship between two exceptional women. Ruth, of course, is the late Supreme Court Justice Ruth Bader Ginsburg, whose relationship with National Public Radio (NPR) reporter Totenberg began in 1971, long before either woman achieved national prominence. It continued, often over dinner, until Ginsburg’s death in 2020. The barely acknowledged subtext in the book is a conflict of interest between Totenberg’s obligations as a reporter and devotion to her friend.

Totenberg covered the Supreme Court for NPR during Ginsburg’s entire 27-year tenure, while the two of them socialized and supported one another “through great personal joys and also deep personal sadness.” It was the sort of relationship that objective journalists do not maintain with the subjects of their reporting, but Totenberg shrugs it off.

“I never got a scoop from her,” she explains, without evident recognition that loyalty to Ginsburg likely kept her from following up on stories that another reporter might have doggedly pursued. The conflict lay in the scoops Totenberg didn’t even seek.

Ginsburg’s health began to deteriorate in 1999, when she was diagnosed with kidney cancer, becoming progressively worse with bouts of pancreatic and lung cancer and other serious illnesses. Although Ginsburg’s surgeries were reported – they could not be concealed – Totenberg was aware of other health issues that were not made public, including debilitating intestinal blockages due to Ginsburg’s colon surgery and episodes of shingles so painful that they interfered with her work.

Ginsburg’s health was a matter of public concern, and President Obama surely would have wanted to know about it in 2013, when he gently attempted to persuade her to resign. Totenberg kept mum, however, in no small part because her husband Dr. David Reines was among Ginsburg’s physicians. That was another conflict; a reporter without personal relationships to Ginsburg or Reines would have pressed the doctors for details.

Even if Reines was totally tightlipped, Totenberg may have at least been aware of how often Ginsburg consulted him about her cancers. In a 2016 interview, she asked Ginsburg about her health, but accepted “It’s very good” for an answer without any follow-up. When Ginsburg volunteered that she planned to remain on the court “as long as I can stay on the job full steam,” Totenberg apparently didn’t inquire about medical obstacles, although Ginsburg was already a double cancer survivor.

Totenberg’s many public interviews with Ginsburg, beginning in the early 2000s and continuing until 2020, present another potential problem. If Totenberg was paid for her appearances (she doesn’t say if she was), it would have created a financial interest in remaining on Ginsburg’s good side. She assumes that “people certainly didn’t go to the trouble of getting tickets to watch Ruth be skewered,” so the questions were mostly softballs about her early life or events in the news.

To protect Ginsburg from surprises, Totenberg routinely alerted her in advance to the topics she intended to cover, which is generally prohibited by NPR’s Ethics Handbook. The rule against “previewing” questions does not apply to side jobs, but even then the handbook cautions against “entanglements that conflict with our journalistic independence.”

Totenberg recounts one occasion on which her friendship with Ginsburg might have affected her reporting. In the summer before the 2016 presidential election, Ginsburg made several disparaging statements about then-candidate Donald Trump, calling him a “faker” and suggesting that she would move to New Zealand if he were elected.

Following an uproar about her flagrant breach of judicial ethics, Ginsburg issued a tepid statement of regret, calling her remarks “ill-advised” and promising to “be more circumspect” in the future.

Totenberg was scheduled to interview Ginsburg a few days later. Following her “usual practice,” she told the justice that “I was going to ask her about what she had said.”

Ginsburg was dismayed. “Oh, please don’t do that,” she asked. Totenberg held firm. “That’s my job,” she explained, “I’m going to ask you about it as I would anybody else,” telling Ginsburg, “she could get mad at me” if she wanted to.

The interview was not much to get mad at. Totenberg asked Ginsburg why she decided to “say you were sorry,” rather than why she’d made the remarks in the first place. Ginsberg gave her prepared answer: “Because it was incautious.” Totenberg did not raise the ethics issue, suggesting instead that the justice had merely “goofed.” Even that was too much for Ginsburg. “It’s over and done with, and I don’t want to discuss it anymore.”  

Totenberg accepted the stonewalling. The obvious next question – to anyone not tiptoeing around a friend’s embarrassment – was whether Ginsburg would recuse herself from cases challenging the election. That would have put Ginsburg on the spot – and any answer would have been extremely meaningful in light of later events – but Totenberg let it drop.

Totenberg’s deep friendship with Ginsburg was known to her editors, who kept her on the Supreme Court beat. The relationship was mentioned in some of their joint appearances, but it was seldom disclosed in Totenberg’s hundreds of reports on the Supreme Court, and never in detail. The extent of their bond became public only when Totenberg broadcast a nine-minute appreciation of Ginsburg after her death, drawing the attention media ethicists.

A Washington Post columnist cautiously observed that the “traditional journalistic practice is to avoid such entanglements, or at least disclose them so that readers can judge for themselves.” A media writer for the Poynter Institute went further, stating that “Totenberg should have recused herself from covering Ginsburg or the Supreme Court.”

NPR’s public editor (responsible for “independent accountability”) was also troubled, writing that NPR had failed to be sufficiently transparent about the relationship.

NPR’S decisionmaking has remained shrouded to this day. Although unmentioned in “Dinners with Ruth,” Totenberg twice refused the public editor’s interview requests. NPR higher-ups declined to specify whatever “editing measures . . . were in place to ensure independent and fair news judgment around stories concerning Ginsburg and the rest of the Supreme Court.”

Totenberg has been unapologetic. In 2020 she said, “I have never shaded my reporting because of my friendship with Justice Ginsburg…” Expanding slightly in her memoir, she described their “ground rules,” which prohibited discussion of “current cases.” “Our roles were obvious to each of us,” she added, “and they were entirely separate.”

Thus are conflicts of interest always rationalized. The late Justice Antonin Scalia defended his infamous duck hunt with Vice President Dick Cheney, held weeks before he voted decisively in Cheney’s favor, in similar words.  “Washington officials know the rules,” he said, and never discuss “pending cases.”

Virginia Thomas has insisted that her efforts to overturn the 2020 presidential election don’t present a conflict of interest for her husband, Justice Clarence Thomas, who didn’t recuse himself from related cases before the Supreme Court. “Clarence doesn’t discuss his work with me, and I don’t involve him in my work,” she said.

Totenberg’s sympathetic reporting continued in “Dinners with Ruth,” which is understandable in a memoir. Regarding Ginsburg’s decision not to resign at President Obama’s urging, when Democrats controlled the Senate, Totenberg says “It was a gamble, and she lost.” Yes, Ginsburg gambled, but Totenberg omits the consequences. American women lost a constitutional right when Ginsburg’s Trump-appointed successor cast the deciding vote to overrule Roe v. Wade.

Conflicts of interest are insidious because those who are most affected are least likely to recognize the problem. NPR’s management evidently decided that Totenberg’s star quality justified the risk.

As a decades-long NPR listener, I have always been an admirer of Totenberg’s work. But after reading “Dinners with Ruth,” l wonder which secrets were kept, which questions went unasked and what stories a more objective journalist might have reported.

Steven Lubet is Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law and a long-time supporter of his local NPR affiliate. He is the author of “Interrogating Ethnography: Why Evidence Matters” and many other books.