As H.L. Post 55 made clear, this hopeless liberal bids good riddance to Justice Anthony Kennedy. Among liberals that point of view is not widely shared and the laments keep coming, stoked by press on the left. Among the foremost and most knowledgeable in that camp is NPR’s Nina Totenberg, who upon Kennedy’s announcement commented “it’s the end of the world as we know it.” Immediately and repeatedly followed by her false history of the context of Kennedy’s nomination, the falsity of which is known better by Totenberg than anyone. She recites that in 1987 Kennedy was nominated by President Reagan, in the wake of the Senate’s rejection of Reagan’s nomination of Judge Robert Bork. Half true enough. Reagan in fact nominated Kennedy in the wake of another intervening nomination, of D.C. Circuit Judge Douglas Ginsburg. A nomination that Totenberg single handedly torpedoed.
After Ginsburg was nominated, Totenberg travelled to Cambridge, Mass. where Doug had taught law. She interviewed a host of his faculty “friends” and found that he had been the law school’s pharmacist, supplying his pals and Harvard parties with pot. In 1987, on the Republican side, that quickly was that. But for Totenberg’s research and revelation Doug would have sailed through. He was the type of guy Trump and the Federalist Society are mulling right now. Doug was very young, very right-wing doctrinaire and on a mission to destroy a pillar of American law – in Doug’s case, antitrust law. He had modestly advanced that objective of reducing the antitrust laws’ scope and vitality during a short tenure as head of the DOJ’s Antitrust Division. His deeds there and in just one year on the D.C. Circuit bench would have made it hard for the Democratic-controlled Senate to lay a glove on him.
On November 10, 1987, three days after Doug’s nomination to SCOTUS was withdrawn, Totenberg and H.L. were the luncheon and keynote speakers at a meeting of the general counsel of all the major American insurance companies. Hard to conceive of a more conservative group of guys, all guys. I was the keynote to tell them that a group of state attorneys general soon would sue many of them for a conspiracy that had increased basic business insurance premiums by 1000% in two years. Nina was there to entertain their lunch with tips about dealing with the press. The insurance boys would have none of her advice and began to interrupt her with nasty comments about her treatment of Doug Ginsburg for marijuana use, that even then seemed trivial and likely hypocritical. By then everyone had smoked – even these tightly wound insurance lawyers. As these guys started screaming at her, she at the podium and with the microphone, shut them up with “wait a minute, wait a minute, Judge Ginsburg is a scumbag. In my research about him, I found he knowingly had four serious conflicts of interests that each separately disqualify him from serving on the Supreme Court.”
The boys quickly shut up except this one who asked “Don’t you now need to say what those four disqualifying conflicts are? Judge Ginsburg sits on the country’s second highest court. If these conflicts disqualify him from the Supreme Court they also disqualify him from continuing to serve on the D.C. Court of Appeals, don’t they? You’ve publicly smeared him with no ability on his part to defend himself. You have a responsibility here, or does the press just go after a person when they’re about to move up a notch?” Totenberg responded that “you make a valid point, maybe I will and maybe I won’t [reveal what I found out].”
Almost 31 years later, she never has explained those four serious and disqualifying conflicts. Doug was later investigated and cleared of one conflict of interest that may or may not have been among Totenberg’s four. He has served on the D.C. Circuit all these years, continuing the assault on antitrust law, most notably shrinking the analysis and remedies employed by the district court in the landmark monopolization case against Microsoft. That case and precedent might otherwise have served the nation well as our economy shifted from making physical objects in America to one dominated by companies like Alphabet, Amazon, Apple, Facebook and yes, Microsoft.
As is clear, H.L. holds neither Justice Kennedy nor Judge Ginsburg in high esteem. Before Totenberg killed his nomination, I had already accepted Senator Biden’s invitation to testify against Doug’s confirmation. And whether Doug would have proved even worse or slightly less bad than Kennedy over the last 30 years is rank speculation. I will rankly speculate that Doug would have been slightly better and in the very areas, such as LGBTQ rights and abortion rights, that cause liberals to lose their minds and memories in discussing Kennedy’s retirement.
In addition to its consistent critique of political and social “conservatives” H.L. preaches that the left must heal itself. Recent events resurrect the fact that one journalist played a central role in creating a SCOTUS seat for Anthony Kennedy and keeping Doug Ginsburg on the D.C. Circuit for a generation. We keep hearing that a free press has a crucial role in preserving our democracy. We keep hearing that because the press keeps repeating it. In this case the press failed.