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Nina Totenberg is the exception, not the rule, and NPR leaders should say so

Illustration by Carlos Carmonamedina
Carlos Carmonamedina for NPR Public Editor

Nina Totenberg is a rarity in journalism, a reporter who has spent more than 40 years covering one beat: the Supreme Court. Her tenure is longer than that of any of the current justices sitting on the bench. Her memoir, Dinners with Ruth, chronicles the many close friendships she has cultivated over almost five decades of work, including most famously with Justice Ruth Bader Ginsburg.

The book documents Totenberg's unique career and connections not only with Ginsburg but with several other justices and powerful public servants. This history makes Totenberg both an exceptional asset and an exception to the conventions that govern reporter-source boundaries.

This dynamic has not been lost on the audience of NPR. Listeners and readers (and quite a few book reviewers) are asking whether Totenberg's relationships with her sources divide her loyalties. The NPR leaders interviewed for this column universally stand behind their ace reporter and say there's no problem at all.

Audience questions go beyond dinners with Ginsburg

Totenberg, NPR's legal affairs correspondent, wasn't close just to Ginsburg. After Justice Antonin Scalia died in 2016, Totenberg disclosed her long friendship with him on an episode of the NPR Politics Podcast. The book offers further details about the development of tight friendships with Solicitor General Ted Olson and Justice Lewis Powell Jr. For years, Justice William Brennan Jr. rebuffed her invitations. Totenberg describes her persistence in developing that relationship. He finally relents and comes to her home for dinner with Totenberg's sister, Amy Totenberg, a lawyer and later a judge.

This coziness with sources is perplexing to other professional journalists and most importantly, to many NPR listeners and readers. In the weeks after Totenberg's book was released, seven thoughtful letters arrived in the Public Editor's official inbox, three more arrived in my personal email, and many people tweeted their questions and criticisms. Here's a sample:

Anne Tomlin wrote: I was listening to Nina Totenberg promote her book on Here & Now yesterday, and it is clear that her personal opinions of the Supreme Court Justices are clouding her ability to impartially report on the court. When she went on and on about how lovely Brett Kavanaugh is personally and how close she was to RBG, it became obvious that she cannot be impartial when reporting on matters that affect millions of citizens. Her personal friendships and warm feelings are fine to have personally, but that closeness prevents her from viewing the court and its decisions from a purely political/news lens.

Adam Marshall wrote: I've appreciated the public editor's discussions of Nina Totenberg's ethics issues in the past, after the death of Justice Scalia and again after the death of Justice Ginsburg. I was struck, though, by Ms. Totenberg's recent publication of what appears to be a book essentially reveling in the same ethical violations that your column has discussed on multiple occasions. I recognize that Nina Totenberg is a trailblazer and an NPR institution, but it seems very clear that no junior staffer at NPR would be permitted to flout ethics in this manner.

These types of source relationships were more common and maybe less problematic in an earlier era when Supreme Court justices were viewed as apolitical, and the court was not at the center of America's partisan divide.

NPR leadership's response

NPR's brass has heard the concerns but is steadfast in defending their Supreme Court insider. Totenberg, they say, is the preeminent journalist on the court beat and navigates her friendships with her sources without compromise.

Managing Editor for Standards and Practices Tony Cavin told me he wished more reporters would develop similar ties with their sources so that they could garner insights to share with their listeners.

"As with any serious reporter who covers a beat for many years, it is to be expected that Totenberg would become friendly with some of her sources. Not all became Supreme Court justices," he wrote in an email. "Her relationships with her sources have given NPR's audiences a front row seat on developments at the nation's highest court, an institution not known for transparency. We've heard the criticisms but we've yet to hear specifics of a story that Totenberg allegedly didn't cover, slanted or changed in some way as a result of her relationships with her sources."

CEO John Lansing also defends Totenberg's work.

"Nina Totenberg has covered the Supreme Court for four decades, and her knowledge of the Court and her expertise are unparalleled. Her work has won numerous awards for editorial excellence over the years and provided NPR listeners with thoughtful and insightful coverage of one of the nation's most insular institutions," Lansing wrote to me in an email. "As President and CEO, I respect the firewall that protects our editorial integrity and leave decisions about our journalism to our journalists. I have full confidence in the editors who have worked with Nina over the years and to this day oversee her work for the Washington Desk. I trust them and NPR's rigorous editing process."

Outgoing Senior Vice President for News and Editorial Director Nancy Barnes was the most nuanced in her analysis.

"In many ways, this is a unique situation. Ginsburg and Totenberg met and developed a friendship years before Ginsburg was nominated for the Supreme Court," Barnes wrote in an email. "Totenberg has always disclosed that relationship with her editors through the years, and they discussed how to handle her coverage. Nina also disclosed it publicly many times. Her book is an honest and open accounting of that relationship."

Barnes defended NPR's internal processes: "We ask all of our reporters to discuss with us close relationships which might weigh on their reporting, and handle these on a case-by-case basis. Would we handle a modern-day equivalent of the Ginsburg-Totenberg relationship differently than we did with Nina? That would depend on the circumstances that presented themselves."

The problem with the perception of competing loyalties

It's clear from her book that Totenberg at one time understood the nature of such competing loyalties. "I actually distanced myself from my old friend," she wrote of Ginsburg's nomination and Senate confirmation. "I had no role to play, except as a reporter. It would be inappropriate to celebrate the moment with her or to advise her in any way. Even to spend time with her."

I asked Totenberg what had changed. Why be deliberately distant during the confirmation process, but resume dinners with a friend after the lifetime appointment to the bench has been secured? She did not directly answer the question. Through NPR's chief communications officer, Totenberg wrote:

"I believe I have answered just about every question about my friendship with RBG in my book. I have always been transparent about that friendship, repeatedly reminding listeners and audiences that we had been friends a very long time. I have covered the courts in one way or another for most of my professional life and have been lucky enough to know and count as friends many judges and justices—both conservative and liberal. From the day I became a reporter, I understood that getting to know people is an essential part of the job. I stand by the quality of my decades of legal coverage as the best proof of my fairness."

Even so, with public opinion becoming increasingly concerned with the politicization of the Supreme Court, news consumers are likely to look for journalism that holds the justices accountable for their own conflicts of interest and political motives.

Many listeners made exactly this point. Claire McInerny tweeted: Anyone else find it so bizarre that @npr is heavily promoting the @NinaTotenberg book where she talks about her close personal relationships with Supreme Court justices? In THIS ENVIRONMENT????

Just as the public is questioning the court, they have been questioning the trustworthiness of the American news media for some time.

Suggesting that Totenberg's approach is standard for Washington journalism, which Totenberg herself hinted at in other interviews about her book and NPR Standards Editor Cavin also describes as common, causes some news consumers to be skeptical.

The perception of journalistic independence is as critical as the existence of journalistic independence. Many in the American public are looking for reasons to trust or distrust journalists. Armed with knowledge of Totenberg's friendships, some will doubt her work, some will question all of NPR and others will extend their distrust to all journalists.

Steven W. Thrasher tweeted, "Everything about the Nina Totenberg book proves how there's a Big Club, and you ain't in it. You and I are not in the Big Club. Meanwhile, top paid journalists are yukking it up with the people who will take everything from you."

Hamilton Nolan tweeted, "Nina Totenberg is emblematic of a Washington where media/ politics/ business all worked together with a consensus worldview. The outcome of that: historic inequality, Trump, discredited American institutions and worse to come. You all broke it together," adding a link to Politico's dismissive review of the book.

Not hard to fix

Totenberg has a lot to offer NPR audiences; why not acknowledge that more directly? I believe she deserves to be in a category all her own. Change her job title to legal commentator, bring her historic personal experiences into the storytelling, and create transparency markers that convey the significance of her history. In short, send signals that inform the audience that Totenberg's insights draw on her personal experiences, similar to that of a news columnist like Ezra Klein at The New York Times or NBC Sports' Tony Dungy, both of whom explore the news, but do so from a distinctive position or point of view.

News consumers shouldn't have to hunt down relevant information to judge whether a journalist is neutral and independent or not. The further distance from Washington, D.C. — both geographically and culturally — the less likely it is that news consumers are in the know, putting member stations in the awkward position of defending insider access journalism to a local audience.

After Scalia's death in 2016 and Ginsburg's death in 2020, Totenberg offered up touching tributes based on her personal friendship. Before those specific radio pieces aired, I can find no mentions on NPR of Totenberg's closeness to her sources. It was transparent to those in the audience at live events where Totenberg appeared on stage with one or both justices. But that is hardly a disclosure to the NPR audience.

In her own way, Totenberg is a friend of the court. That brings with it the assets of deep insight and the liability of competing loyalties. Although it would have been more effective had it happened years ago, giving her a title that conveys her history and gives her the liberty to talk more frequently about the knowledge she has gained from her extensive network of relationships would not diminish her work or NPR's reputation. Instead, it would set both apart.

Researchers Kayla Randall, Amaris Castillo and Emily Barske contributed to this report.

Copyright 2022 NPR. To see more, visit https://www.npr.org.

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Kelly McBride is a writer, teacher and one of the country's leading voices on media ethics. Since 2002, she has been on the faculty of The Poynter Institute, a global nonprofit dedicated to excellence in journalism, where she now serves as its senior vice president. She is also the chair of the Craig Newmark Center for Ethics and Leadership at Poynter, which advances the quality of journalism and improves fact-based expression by training journalists and working with news organizations to hone and adopt meaningful and transparent ethics practices. Under McBride's leadership, the center serves as the journalism industry's ombudsman — a place where journalists, ethicists and citizens convene to elevate American discourse and battle disinformation and bias.