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.”
In raising questions about whether Totenberg’s coverage was influenced by her relationship, Lubet focuses on the controversy surrounding Justice RBG’s comments about then-candidate Donald Trump (which I coveredextensively on this blog).
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.” “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.