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Mining the brilliance of Prof. Richard Epstein: "Everything the progressive stands for is a repudiation of what the Constitution desires"

A colleague of Antonin Scalia when they were both at University of Chicago, renowned Law Professor Richard Epstein joined Dan & Amy this morning to reflect on Scalia's intellect, style and scholarship. Epstein also opined on President Obama's decision to skip Scalia's funeral mass saying, "This man (Obama) has bad taste beyond all limits on so many things," and added, "he's not a very good Constitutional lawyer."

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Dan Proft: Dan and Amy. Amy, Pres. Obama's making Republicans' job much easier in opposing any nominee that he would level up by deciding not to attend Justice Scalia's funeral on Saturday. Kind of a rather classless move, I think it's being perceived appropriately. And one that just fosters resentment and allows Republicans to dig in and–why should be accommodate this guy? Amy Jacobson: Well, it perpetuates the stereotype, too. Pres. Obama keeps saying we need unity, we need people to come together, and then he does this. And I want to know what is the pressing issue. What is so important that's happening on Saturday that he cannot attend his funeral? And the White House yesterday had no answer. They just said, "Well, he and Michelle will be attending–when he lies in repose on Friday, they'll attend the wake. And then Vice Pres. Joe Biden and Jill, his wife, will attend the services." Dan Proft: Yeah. Amy Jacobson: On Saturday. Like, "Everything's fine here, folks. Nothing to see here. Move on." Dan Proft: Well, to the mater of the politics of replacing a supreme court justice, filling that vacant seat–and it is, again, a political matter because politicians are involved. So the idea that one side or the other is playing politics and the other side is not is just silliness. Scalia actually wrote on this topic about the kind of person he would want as a successor. He wrote: "Avoid tall-building lawyers especially ones who work in skyscrapers in New York. Find someone who did not go to Law School at Harvard or Yale"–just a great thing for a Harvard grad to say. "Look for a candidate from the Southwest. Consider an evangelical Christian." Because, Scalia noted, there is not a single evangelical Christian on the court. That's coming from a Catholic. I don't think Scalia's bothered at all by the preening of politicians and the back-and-forth. He never was–as a supreme court justice, why would he be surprised that the politicians are behaving down to the level that he expected them to behave in his absence? But I love the fact that no Harvard or Yale grad. I think that's right. For more on this, we're joined by a colleague of Justice Scalia's when he was at the University of Chicago, and really, one of the most important legal thinkers in the country. I became familiar with Prof. Epstein like, right after I got out of school. Right before I went to law school. You remember his book, Simple Rules for a Complex World, of course, Amy. Amy Jacobson: Yes, of course. Dan Proft: Yeah. And Principles for a Free Society. He very much, like Scalia–deep, intellectual thinker, philosophical thinker, but also a practical thinker, too, in terms of Constitutional Law. We had him at the University of Chicago for nearly four decades before. Like everyone else from Illinois, he left. And now he is a professor– Amy Jacobson: Was it the high taxes? What was it? Dan Proft: No, no, no. We're going to ask him. Prof. Richard Epstein: All right. Dan Proft: Now he's a professor of law at NYU. Richard Epstein, thanks so much for joining us. Appreciate it. Prof. Richard Epstein: Well, I have not left Chicago. I still live there. Dan Proft: Oh. Prof. Richard Epstein: And I still teach every spring quarter at the law school. And I spend most of my summers in residence there. So. Dan Proft: Okay. Prof. Richard Epstein: I'm a man of divided loyalty. Maritis status at one place, basically to retire so as I like to joke about it, before I retired, I had two jobs. Now I have three. Dan Proft: Very good. Glad you're enjoying your golden years. Amy Jacobson: Yeah. Prof. Richard Epstein: Well, yes, I work hard. I'm–look. One of the things you'd discover is you get a little bit older and some of your friends aren’t so fortunate. They'd have illnesses and reversals of one kind or another that's just given up the ghost. Every morning I wake up, happy to go to work, and I say, "I just don't know how much longer this is going to continue so I have to take every possible advantage of it." Dan Proft: Absolutely. We need you around as long as possible with, providing your scholarship and your insights. So why don't we start with your relationship with Scalia, perhaps going back to the time you were–he was at University of Chicago during the –part of the time. You were there. Prof. Richard Epstein: Okay, sure. Well, I came to the University of Chicago before he did. I arrived in 1972 after teaching for four years at the University of Southern California. And Nino had a very different kind of career. He basically practiced for several years taught at the University of Virginia, then he worked in the Ford administration as the head of the Office of Legal Counsel which is an administrative job, the kind of thing I've never had. And then when the Ford administration was beaten by Jimmy Carter, he's looking for a job. And he's spent some time at the AEI and he comes through in grand style to the University of Chicago. They gave him job talk, and the first time I saw him was probably the spring of 1977, and he was still working in his own mind for the office of Legal Counsel because the talk he gave was on executive privilege and why is it important that the president preserves his prerogatives from everybody else. But it's actually a very interesting and very memorable talk. Anything that he did was memorable because he always worked on kind of a grand scaffold. He didn't paint little pointless drawings, he covered the entire sides of walls. And what he did is he simply said that you can't run the system in separation of powers. If the Congress could always reduce the president to some kind of an errand boy by forcing him to testify. And what he made so clear in his own mind was he said, "Every Republican president, every Democratic president has always taken this position. And the Congress or the Democratic or Republican tends to go the other way." And he became deeply convinced of the rightness of his position and defended it with the kind of a litigator's passion that you rarely see in job's talks. I mean, my profession at the academic level has no obligation to make decisions so many people say we're on the one hand or on the other hand and then decide which hand is stronger. But Justice Scalia did not come to the world that way. I mean, he was a man who had very strong visions. They were heavily influenced by the three years he had at the Harvard Law School. And they would basically make much more solid by working in the administration. As a matter of fact, I used to tease him. I still think it's, to some extent, true. Justice Scalia was too comfortable with the administrative state because he had been part of it. Folks like myself who've never worked in government tend to be even more suspicious of it. He sees some good guys and some bad guys, I tend to see a lot of very dubious characters on both sides. Amy Jacobson: But Justice Scalia was such a vivid writer in his opinions and his decents. Is there anything that he wrote that will stick with you that you remember? Prof. Richard Epstein: Oh, everybody remembers him. I mean, well, let me put it this way. I think the phrase that's the most famous is the one where he starts talking about cost benefit analysis and administrative law. And Breyer’s a very different kind of writer also. Harvard graduate, two years later than Scalia. And he is a jurist of happy endings. He knows what it is that he wants, he loves the administrative state, and he thinks cost benefit analysis are rational and they're always required under the statute. And Justice Scalia views this very complicated statutes on admissions and he makes a little remark. He says, "Nobody used secretes elephants in mouse holes." Meaning–it's such a great line. I mean, because it captures what he believed in our statutory interpretation. This was not a situation in which–when you're talking about this huge apparatus because to do a cost-benefit analysis requires eons of information. They don't use it expressly and somehow they want to do it. Now, one of the reasons why Justice Breyer wanted to do it is you start looking at these [inaudible] standard and you discover that there's no cost benefit analysis. Then when do you stop? I mean, because if you assume that various kinds of pollutions, like benzene, are bad, less is always better. But each time you go down another notch, oh, it turns out the cost of doing it is just huge. I mean, you want to go from 100 to 10, it's going to cost you, say 20. You want to go from 10 to 1, it's going to cost you another 40. You want to go from 1 to 0.1, it's going to cost you 60. But where do you quit? And it can't be when the firm is bankrupt because at that point, you couldn't regulate pollutant. You have a fundamentally irrational statute and Justice Scalia's attitude is–I'm not going to save these guys from their stupidity. Let them redraft it. But what was interesting about it is he and I are actually different on this: my own attitude would be I would strike many of these statutes down. On the grounds as their rationality rises and trying to make sense of it. Indeed, if you just simply had a rule which says, "We will set a schedule for the amount of pollutions that you admit or that people start to breathe and you figure out where on the schedule you want to be, you would get a vastly cheaper and a vastly more efficient system. But that's the difference between the two of us. I don't come to law as an inside man. I'm basically an institutional arrangements and structural guy. I'm much more influenced by law and economics than he was. As I like to say sometimes, he went to law school eight years before I did but there was an intellectual revolution in the middle and he was never really committed to the modern techniques of analysis. He was much more traditional. He did not like the new deals, he did not like the earlier, pre-new deal, judicial decisions. And so what happened is he was a much more of a traditionalist on his willingness to upset things than somebody like myself. We used to argue about that and debate it and the most famous of these debates took place by accident at the Cato Institute when he was still on the Court of Appeals in which he gave a speech–great speech it was, in fact on the merits of the Fine papers. Instead of big people like Richard Ebstein diving over the edge and getting themselves really burnt, he said–what was so good about this speech, the one he did on originalism in 1989 for the Taft lecture in Cincinnati . Is then he realized that there were weaknesses to his own intellectual position. But it just goes that they were weaker than those on the other side. Dan Proft: But the talk at Cato, the debate at Cato, the frying pan, I remember Scalia talking about the need to establish a constitutional ethos for economic liberty. And that differs a little bit from the law on economic school. Distinguish that. Prof. Richard Epstein: Well, what happened is that ethos means that you try to do is to get comedy and understanding but you don't have any judicial constraints which shuts everybody down. And if you'll take my view that private property receives explicit protection, that one of the elements of private property is the ability to dispose of it in voluntary transaction, all of a sudden, the state has to show good reasons to why it's going to shut this operation down. So it's not just a matter of ethos and preference, it's a matter of law. Now, in a decent society, the ethos should do 90% of the work and the law should do 10% of the work. One of the reasons why the constitutional issues have gotten larger today is the polarization inside Washington is enormous and essentially everything that progressive stands for is a repudiation of everything that the constitution desires. So you really have to turn cartwheels in order to get rid of this stuff. And the great rival of Justice Scalia although they only overlapped for four years was Justice William J. Brennan. He was so clever that he could always find a way to rule a statute constitutional. There was always some kind of an exception to it. And indeed, I agree with Scalia on this–on everytime I see Justice Brennan maim a constitutional provision, I say, "That's not the way it is." Scalia would never do that. I mean, his attitude, if Congress is going to send me down the road to perdition, my job is to judge–to accurately construe their intentions and to give their words their full effect whereas there was no statute that Bill Brennan by a little slide of hand. Dan Proft: On the politics of this, do you agree with Scalia? As he reflected on a possible successor, avoid the Harvard Law graduates and the Yale Law graduates. Avoid the tall building lawyers, especially in New York? Prof. Richard Epstein: Well, in New York, I'm on the 4th floor so I certainly agree with it. Dan Proft: Yes, exactly. Prof. Richard Epstein: But I mean, look. What's interesting, I think you're quoting from Obergefell. That was the gay rights case. Dan Proft: Yes. Prof. Richard Epstein: And he didn't quite say that. He said, "Look, if we were just looking at legal text and trying to solve it, essentially, political difference should melt away and it wouldn’t matter where you came from. But if you look at this particular world and you realize that everything is a matter of hard politics and balancing and trading, he says, "I don't want to overtrade to come out of New Haven and Cambridge." And on that fold, I think he's absolutely right. The one point I would differ with him is, he came out of Harvard. Dan Proft: Right. Amy Jacobson: Yeah. Dan Proft: So he knows what he speaks. Prof. Richard Epstein: Yes. What happens is it's not that he came out of Harvard, this is a class difference. If you want to figure out where he came from, he came from Elmhurst and he came from a Catholic school tradition. Dan Proft: Yeah. Prof. Richard Epstein: And so he goes to Harvard. The man when he's younger's an absolute whiz–I actually took a moment to reflect on a picture of a 1960 Harvard Law Review with 59 men and 1 woman and then you looked at their list of guys who are actually on that class–many of them went on extraordinary distinction and I think–they came from all sorts of backgrounds and different kinds of places and Scalia was one of them. He was, I think, extremely pugnacious and very strongly opinionated–and the word is passionate–one of the things that you knew about Nino that when you got into an argument with him is that sometimes, you were uncomfortable about what he said even though you agreed with him because your passions could never quite rise to the level of his and the sort of curious rate of verbal eloquence that came out of this man's mouth was really quite astonishing. But he want, at his best, a truly great kind of stylist. On the institutional issues, sometimes, they'd correct this decision on the special prosecutor case. The lone descent in Morrison v. Olson. And was one of the great opinions of all time–prophetic in his implications and passionate in its conclusion and he understood that there's lots of different things– Amy Jacobson: Professor Epstein? Prof. Richard Epstein: Yeah? Amy Jacobson: Real quick, before we have to go. Were you offended, or are you offended that Pres. Obama is not going to be attending his funeral? Prof. Richard Epstein: No. I mean, the Obamas also in Chicago. This man has bad taste beyond all limits on so many things. I mean, it's not just bad- everything he does has the following habit. I think he mentioned it in the lead into the show. "I will pat you with one hand," he says, "and then stab you in the back with another." It's inappropriate, this particular point to raise. What the Republicans should do what the president should do is not a very good constitutional lawyer, I have to say. He's a pretty effective politician. I wish you would understand the difference and stop constantly reminding us that he always speaks ex cathedras. Everything he says is a matter of anointed truth whether it'd be on economics or on law. It's pretty hard to take at this particular point in time. His skills do not wear well. Dan Proft: Prof. Richard Epstein, a real pleasure. You should get–your latest book, I think, is Classical Liberal Constitution. Prof. Richard Epstein: Yep! Dan Proft: That's worth reading. Principles for a Free Society, Simple Rules for a Complex World. Prof. Richard Epstein, New York University School of Law, University of Chicago for 40 years, thanks so much for joining us. Appreciate it. Prof. Richard Epstein: Oh, my pleasure, Dan.

 

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