October 30, 2003, 8:57 a.m.
Inaccurate Radio
NPR on Janice Rogers Brown.

By Sean Rushton

Whether conservatives like National Public Radio or not (mostly not), it is a key information source, especially among elites. NPR has long been known for its liberal slant, but last week's coverage of D.C. Court of Appeals nominee Janice Rogers Brown's hearing before the Senate Judiciary Committee was remarkable for its bias.

Bob Edwards, NPR's Morning Edition anchor, set the tone with his introduction: "Yet another controversial Bush administration judicial nomination seems to be headed for trouble." The use of "yet another" establishes the angle — this nominee, rather than a worthwhile individual with a great career and an important story, is just the latest in a lengthy list of Republican partisans with whom the Bush administration is trying to pack the courts. His description of Brown as "controversial," with no caveat or modifier, seeks to establish as fact that she is, objectively, radical or alarming. Her detractors' motives in opposing her are not discussed, nor is it mentioned that the "trouble" she is headed for is the latest threatened Democratic filibuster.

Then comes Nina Totenberg, NPR's longtime legal-affairs analyst, best known for her relentlessly negative reporting on Clarence Thomas during the Anita Hill dustup.

Totenberg skews the report right off the mark: "'Bizarre' is the only word to describe yesterday's hearing." Why bizarre? Because, she explains, outraged Republicans brought to the hearing a blown-up cartoon that depicted Brown — drawn to look like a fat Clarence Thomas wearing a women's wig — entering a room where Colin Powell and Condoleezza Rice stood clapping. Totenberg believes the cartoon's presentation was bizarre because the Democratic senators said they too found the cartoon offensive.

But rather than bizarre, the cartoon highlights issues central to the liberal attacks on Brown. Brown is opposed with particular passion and zeal (the Congressional Black Caucus called her a "female Clarence Thomas" days earlier — searing shorthand for race-traitor, Uncle Tom, sellout) not because she has written provocatively on law and government, but because she is a conservative black woman. Delegate Eleanor Holmes Norton (D., D.C.) expressed similar disdain, saying that Brown was "cut from the same cloth as Clarence Thomas." U.S. Rep. Diane Watson (D., Calif.) said that next to Brown, "Clarence Thomas would look like Thurgood Marshall." Blackcommentator.com, the website that printed the cartoon, went even further, saying, "Janice Brown is a Jim Crow-era judge, in natural blackface." This undercurrent of racialist criticism escapes Totenberg's analysis.

Next, Totenberg throws a compliment Brown's way-saying she might be a "dream judicial candidate for President Bush" — but then counterpunches with "at least on paper." While mentioning Brown's compelling life story — born to sharecroppers, raised in the South, worked her way through law school — Totenberg quickly returns to negatives: She has been a "lightning rod for controversy"; "she was often the lone dissenter" (yet in 2001-02, Justice Brown's colleagues relied on her to write the majority opinion for the Court more times than any other Justice); "the American Bar Association gave her its lowest passing grade" (a standard Democrats only cite when they think it favors them).

Totenberg then turns to Brown's speeches, which are mostly conservative boilerplate — that the Constitution's framers valued property rights as highly as free speech, that the New Deal represented a regrettable surge of socialism in America, that big government can negatively impact the nation's culture and character. But to the liberal mind these ideas are "flamboyant" (Totenberg) or "intemperate" (Sen. Dianne Feinstein, D., Calif.) or "despicable" (Sen. Ted Kennedy, D., Mass.). An honest assessment would reveal Brown's skepticism of unrestrained government to be well within the American tradition, and cast Feinstein and Kennedy as the radicals.

Analysis of the nominee's speeches — a standard method for attacking conservatives — makes up a substantial part of Totenberg's report. This approach, rather than focusing on the more than 700 cases Brown has worked on during her nine years on the California supreme court, puts the emphasis on her "extracurricular" statements to students or lawyers. Totenberg thus lets Democrats portray Brown as dangerous — Didn't she know the Occupational Safety and Health Administration had cut work-related deaths in half?, Sen. Kennedy ludicrously wonders at one point — while ignoring the salient fact that Brown was confirmed to the California court by a whopping 76 percent of California voters. How's that for "mainstream"?

Perhaps most outrageously, Totenberg not only slants the story, but actually gets it wrong — predictably, to Justice Brown's detriment. Totenberg describes an exchange between Sen. Arlen Specter (R., Penn.) and Brown, in which, she says, Brown "seemed at times confused." The exchange supposedly confirms that Justice Brown is intellectually unprepared, perhaps even unfamiliar with basic constitutional law:

Specter: Well, doesn't the Supremacy Clause of the Constitution mean that the equal protection of the 14th Amendment trumps California Proposition 209?
Brown: Doesn't the Supremacy Clause mean that?
Specter: Yes.
Brown: Well, the U.S. Supreme Court has not said that.
Specter: Well, the state cannot have a constitutional provision which conflicts with a U.S. constitutional provision, can it?
Brown: This is not an issue that I have looked at in detail.

But if Brown is confused, it is only because Specter has his facts wrong. In fact, the U.S. Court of Appeals for the Ninth Circuit has ruled that the California constitution's prohibition of public race and gender preferences does not violate the Equal Protection Clause of the United States Constitution, so Brown's confusion was warranted. Presumably Totenberg's clarification, including this detail, is forthcoming.

Ultimately, a journalist's portrayal of a subject is shaped not only by what she reports, but by what she omits. Absent from Totenberg's report are the many examples of Justice Brown's intellect, grace, and wit as she batted back challenge after challenge from Democratic questioners. Gone are several excellent exchanges between her and Judiciary Committee chairman Orrin Hatch (R., Utah), in which he dismantled the allegations against her with a defense lawyer's deftness. And gone is Brown's heartfelt response to the ugly, racist cartoon depiction of her: "[People say] it's just politics, it's not personal," she said. "That's not true, because it is personal, to the nominee and to the supporters of the nominee."

— Sean Rushton is executive director of the Committee for Justice.