June 30, 2014

NPR’s Hysterical Totenberg Thinks Only Anthony Kennedy Stands in Way of Sex and ‘Foreign Origin’ Discrimination

In an MSNBC interview today, Nina Totenberg, National Public Radio’s longtime Supreme Court watcher, attempted to portray the Supreme Court’s Hobby Lobby decision as possibly wide-ranging, and even advised viewers that Anthony Kennedy’s presence on the court may be the only thing preventing it from bringing in an era of sex and “foreign origin” discrimination by “hundreds and hundreds and thousands and thousands of companies.”

Video follows the jump (HT Hot Air). Be sure to hang in there until the end, where Totenberg stammers as she appears to be grasping for more fuel to throw onto the fire, and ends up ridiculously claiming that a person’s “foreign origin” may become a basis upon which employers can discriminate (bolds are mine throughout this post):


MSNBC HOST: Give us a sense of the consequences. What are the ramifications? Where is the next page in this chapter?

NINA TOTENBERG: Well, I-I-I’m not sure. I think the court did seem to try to, uh, umm, make this as narrow as possible so it wouldn’t be opening the floodgates. But it’s not 100% clear whether it has done that or not.

I think— What is pretty clear is that there’s at least one justice, in the majority, Justice Kennedy, who wrote a separate opinion. He signed on in full to this opinion. But he wrote a separate opinion that said, essentially, “Don’t worry. As long as I’m here, this— the floodgates won’t open, and it won’t be, uh, hundreds and hundreds and thousands and thousands of companies saying: “Why me? Why should I have to do this? Or why should I have to do that?”

But he is the fifth vote. It’s not at all clear where the majority will lie, for example, in challenges to, um, certain sex discrimination practices that may occur. That somebody will say, “That’s against my religious beliefs, to—” Or cases involving gays and lesbians. Or cases involving, uh, uh, people from different foreign origins.

Eh, It’s just not clear!

It shouldn’t surprise anyone that Totenberg’s take is at variance with reality. Kennedy opens his concurring opinion (begins at Page 56 at the link) writing that:

At the outset it should be said that the Court’s opinion does not have the breadth and sweep ascribed to it by the respectful and powerful dissent.

Kennedy is referring to Justice Ruth Bader Ginsburg’s dissenting 35-page exercise in hysteria which all but contends that the world as we know it will end because the government couldn’t impose its will on the consciences of Hobby Lobby’s owners.

Later, Kennedy writes:

the Government has not made the second showing required by RFRA, that the means it uses to regulate is the least restrictive way to further its interest. As the Court’s opinion explains, the record in these cases shows that there is an existing, recognized, workable, and already-implemented framework to provide coverage. That framework is one that HHS has itself devised, that the plaintiffs have not criticized with a specific objection that has been considered in detail by the courts in this litigation, and that is less restrictive than the means challenged by the plaintiffs in these cases.

If there’s a way the court’s ruling can be extended beyond the dispute litigated, I don’t see it.

In my view, neither does Ginsburg or Totenberg — which is why they had to engage in overwrought histrionics and make things up out of thin air, respectively.

I also don’t see anything in the text of Kennedy’s concurrence — or in its penumbras — that Totenberg could have construed as, “As long as I’m here, the floodgates won’t open.”

Orchestrating lies and myths about this ruling would now appear to be the left’s highest priority, from President Obama and the White House on down.

Cross-posted at NewsBusters.org.


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