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supreme court

Smooth Sailing For Kavanaugh’s Confirmation

Will the sky fall if Brett Kavanaugh is approved? Has the left even dug up any actual dirt that would prevent Kavanaugh’s appointment? The Democrats’ focus on Obamacare suggests that they have nothing on Kavanaugh. Managing Editor for the Washington Examiner, Philip Klein joins Dan and Amy to react to Kavanaugh’s appointment.

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The Left Who Cried Wolf

The left continues to claim Supreme Court Justice nominee Brett Kavanaugh is an enormous threat to Americans’ way of life. Can we expect Kavanaugh to rule tyrannically? Is the media more concerned with spreading opinions on the new nominee rather than facts? Alberto Gonzales, former US Attorney General, joins Dan and Amy to discuss.

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America Owes Two Illinoisans A “Thank You”

You’re welcome, America.

That’s not a statement a resident of Illinois gets to make very often with sincerity.

But the nation owes a debt of gratitude to two Illinoisans who advanced the cause of liberty for millions more Americans through their courage to dissent.

Pam Harris and Mark Janus are their names.

Pam is the mother of a young man with developmental disabilities who resisted SEIU’s attempt to force parents of children with disabilities into its union, literally pitting parents against their children.

Pam took her case all the way to the Supreme Court which ruled in her favor in 2014.

That set the table for Mark Janus, a child support specialist for the State of Illinois, who challenged his forced membership in and financing of AFSCME.

Mark took his case all the way to the Supreme Court which ruled in his favor in June.

Without Harris there would’ve been no Janus.

Without Janus, public sector workers in 22 states would still be second-class citizens with respect to their First Amendment rights.

Courage begets courage. 

As I know them both, I can tell you what they would say about the history they’ve made: Don’t worry about remembering our names. Focus instead on emulating our example.

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Who Will Be The Next Supreme Court Justice?

Trump says he's sticking to the list and McConnell is sticking to the nuclear option and a fall vote. Are the never Trumpers biting their tongues after Trump will have the opportunity to nominate another Supreme Court Justice? Georgetown law professor, Randy Barnett joins Dan and Amy to discuss Justice Kennedy’s retirement.

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A Blow Against Bigotry

A big religious case adjudicated by the Supreme Court deals a blow against bigotry and for religious liberty. How does the Supreme Court view religious liberty and the right of free association in an individual's commercial life? Dan & Amy recap the Supreme Court's decision with Kerri Kupec, Legal Counsel for Alliance Defending Freedom.

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A Partial Victory

The SCOTUS handed a partial victory to the Trump Administration. Is Trump’s temporary travel restriction a Muslim ban? Can Trump's tweets be used to show his intent? What impact will yesterday's SCOTUS decision have on religious freedom? Dan & Amy posed these questions and more to Randy Barnett, Georgetown Law Professor& Author of “Our Republican Constitution: Securing the Liberty and Sovereignty of We the People”.

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Father Scalia On His Dad And His Faith

Dan & Amy are joined by Father Paul Scalia, the son of former Supreme Court Justice Antonin Scalia, to discuss the importance of faith and family in his dad's life. Father Scalia discusses his dad's legacy and shares his thoughts on the search for truth, as well as his new book “That Nothing May Be Lost: Reflections on Catholic Doctrine and Devotion.” And they dismantle the myth that just because something is legal, it is good.

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Georgetown Law Prof. Barnett: SCOTUS Nominee Should Be A Known Quantity

Earlier this morning Randy Barnett, Georgetown U. Law Professor, joined Dan Proft & Amy Jacobson to discuss the important SCOTUS nominee. He firmly believes that whomever Trump chooses will be an advocate of the constitution, and that this person will come from the already existing list of 21 candidates. 

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What SCOTUS' Decision In TX Abortion Law Case Means For Women's Health And Constitutional Rights

George Mason University Law Professor Helen Alvare joined Dan & Amy to discuss the most significant Supreme Court decision on abortion since Casey v. Planned Parenthood more than two decades ago.

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Dan Proft: Dan and Amy, so a couple of important decisions chanted on by the Supreme Court yesterday. The most impactful of which is striking down a Texas law, that was signed in the law by Governor Rick Perry, that would do two things: require abortionist to have admitting privileges at a hospital within 30 miles of the abortion facility in which they work; number one, and number two, it would require that abortion facilities comply to the same standards, in terms of safety and cleanliness and the like, of ambulatory surgical centers. Is that extreme? Amy Jacobson: So it’s the same standards if you’re getting elective surgery, such as augmentations or facelifts. That’s the same level of standard. Dan Proft: Right, so would you want medical facilities like that inspected to ensure that they were safe. Would you want somebody that engages invasive surgery to have admitting privileges at the hospital, to say something about their competence at their job? Apparently not; apparently that is an undue burden, so said a majority of the court in a 5-3 decision – thanks Anthony Kennedy once again. He’s more of an op-ed writer than a Supreme Court Justice, who engages in legal opinions, but at least we weren’t treated to his thinking on the topic; he just signed onto the majority. And this is being hailed as the most important decision on the topic since Roe v. Wade. It’s being celebrated. It’s odd, it’s morbid the way that it’s celebrated on the left. Let me give you an example. The Daily Show tweet, after the decision was rendered: “Celebrate the #SCOTUS ruling! Go knock someone up in Texas!” Now I know that purports to be a comedy show, but I think it also is an unintentional insight into the attitude of the left. Once upon of time I thought that pro-choice people just wanted safe, legal and rare. Now they don’t want safe and they don’t want rare, they just want legal underneath circumstances. And by the way, let’s have a reminder of who we’re talking about here, particularly with respect to Planned Parenthood, the nation’s largest abortion service provider. Dispense even even with the whole illegally trafficking in baby body parts for a minute. Remember what happened to Susan G. Komen Foundation a few years ago? They have been giving a lot of money to Planned Parenthood. Amy Jacobson: Right. Dan Proft: Susan G. Komen Foundation; you know, pink, ribbons and all the marathons. Amy Jacobson: I’m very familiar with the month of October. Dan Proft: Everyone knows this is one of the highest profile breast cancer research non for profits, right? So they decide to stop providing funding for Planned Parenthood for breast cancer research because Planned Parenthood wasn’t doing any breast cancer research. Seemed like a good reason. The reaction was Susan G. Komen was treated by Cecile the Lion just like I would be; as the enemy. And they went on the offence, they attacked the Susan G. Komen Foundation, they dried up funding. Susan G. Komen Foundation saw a 22% decline in their revenue that year because of Planned Parenthood’s assault. Tells you something about Planned Parenthood; tells you something about the motifs underlying this issue. But for more on the legal reasoning behind the Supreme Court’s decision, we’re happy to be joined again by Helen Alvare; she is professor of law at George Mason University school of law. Helen, thanks for joining us again, appreciate it. Helen Alvare: Thanks for having me. Dan Proft: So explain to us the undue burden standard that was set forward in the Planned Parenthood v. Casey case in 1992, which is the standard the court used, and they said, “Yes, the Texas law presents an undue burden”. Helen Alvare: Here’s the thing; nobody could actually explain the undue burden standard to you, because the court changes its meaning from time to time. Dan Proft: There you. Helen Alvare: The language of it on itself – undue burden – and another way they refrained it is a substantial obstacle to a woman receiving an abortion. Even in its first iteration, which is the 1992 Supreme Court decision, which was Planned Parenthood versus Casey, then the governor of Pennsylvania, the descent said “What does this mean? Nobody really knows what it means”. What the court said yesterday, and this is Whole Woman's Health v. Hellerstedt case, was that if clinics closed as a result of being required to conform to the standards of other surgery centers, if they were being required to conform to the standards that, by the way, other surgery centers also have for their doctors, they want to know that the doctors that they have during abortions are the kind of doctors who a hospital would give an accreditation within 30 miles, because those would be doctors that people would judge to be good doctors, doctors who would be familiar with others in the medical community, such that if something terrible happened to one of their patients, they could quickly be in touch with the local hospital, know who to refer the woman to or themselves be able to take care of her. So these regulations the court held yesterday are an undue burden or substantial obstacle, why? Well, the court claimed without actually having the proof that the regulations that Texas passed were responsible for the closing of a bunch of Texas clinics. It’s quite possible, but it’s also possible that the drastic decline over the last number of years in abortion providers, and the drastic ramping up of the size of Planned Parenthood facilities was responsible for that. We don’t know. But the court just assumed it was responsible. Number two, they said that the existing clinics probably wouldn’t have enough capacity to handle the number of women in Texas who want abortions. Couple problems with that; again the court did not require Planned Parenthood and the other complainants to actually prove that, and it turns out Justice Aleto in his descent actually went and did the numbers and showed that the clinics that existed very likely had the capacity to do the high number of abortions that Texas still has, because Planned Parenthood is now building these mega-clinics to handle higher capacity. They set longer wait times, maybe less attention, this in itself constitutes a constitutional undue burden to women receiving abortions. What they didn’t countenance at all – and this is the underlying rationale for these regulations – is this: we know there are moral hazards in the abortion industry. And it’s not just that Dr. Gosnell in Philadelphia was basically killing newborns and also killing their moms through negligence in medical practice. We know many clinics, many have been cited, for pretty drastic failures in healthcare. There’s a moral hazard in the situation where desperate women, in an industry that’s often cash, are coming into clinics where doctors stand to make an enormous amount of money in the situation of these desperate women. There’s a moral hazard that and it makes a lot of sense that a state would say, “In the interest of protecting the women, and frankly, very frankly, in the interest of making you doctors who we don’t really trust” – by the way, the vast majority are not even OBGYN’s; they don’t know what they’re doing with a mother that is pregnant – “We’re going to set high standards for you. They’re not going to be higher than other surgery, but you’re going to have to at least meet those standards, because the moral hazards at your place are so high”. But the Supreme Court acting very much like a legislature in the abortion arena is basically scrutinizing every state’s response to this. I don’t think the court would do the same if there were severe regulations with banks or pharmaceutical companies that have injured their clients, but abortion is always treated as the exception. Amy Jacobson: So Helen, before this Texas state law passed, there were 32 abortion clinics, then it would drop down to 19. What happens now? Did those abortion clinics reopen, or is it a process? What do they have to go through? Helen Alvare: Well, isn’t that an interesting question, because in fact, probably many of those abortions clinics won’t open at all because already the numbers of abortions in the United States were declining. People are just having fewer abortions in the first place. The case for abortion has gone done. It’s wonderful, and the pro-life movement can take a lot of credit for that. The second reason is because those clinics were losing business in a drastic fashion to these Planned Parenthood mega-clinics, which could take, really, not just hundreds, but thousands more clients a year. So I think what you’re going to see – and this is something we should check in on six months from now – will these clinics reopen, now that they don’t have to obey commonsense medical standards. I think you’re going to find that they won’t, because these laws may not have been the reason for their closure in the first place. One other thing I think I just have to point out, Planned Parenthood bellyached in the case and afterwards that they were going to have to spend this extraordinary amount of money to bring their clinics up to these standards. Number one, that should kind of freak out your average female clients at Planned Parenthood, but number two, contrast that with Planned Parenthood’s willingness to spend, I think it was 6 million dollars on the last election cycle and 12 million on this one, I think for Hillary Clinton and other candidates like her. So they’ll be able to spend money on political races, but not on health and safety race. I think that tells the whole story. Dan Proft: I want to refer to something that Richard Posner, of course, on the 7th circuit court of appeals wrote recently – and it speaks to this issue; it even goes beyond the matter of abortion, to legislators in robes, which is what your suggestion occurred here as seems to be a recurring problem – he writes, “I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation. Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century. Which means that the original Constitution, the Bill of Rights, and the post–Civil War amendments (including the 14th), do not speak to today.” That’s a rather startling statement to make from somebody who’s otherwise, in some circles, a well regarded court of appeals jurist, and I wonder, as a professor of law at a university, what your response to that is. Helen Alvare: For me, I regard the attempt to follow the Constitution as it’s written as respect for democracy. If judges want to make stuff up out of whole cloth, this is disrespectful for democracy. If we have a constitution, it’s not unamendable. If what you want as a right is not in the Constitution, it doesn’t mean you can’t get the thing done. It means you can pass a piece of legislation on it, which requires actual democracy and influent and electing particular legislators, and convincing your fellow men and women citizens to pass the law. Just because the Constitution doesn’t give you the candy that you want, doesn’t mean you don’t have good democratic possibilities for passing good laws. And if you go to the Supreme Court and say, “I want to find X in the Constitution”, and they say it’s not there, you still, if you want it, as a constitutional right, have the opportunity to amend the constitution. I think where we are now , I hate to be talking about what everyone’s talking, BREXIT, but they’re coming out today saying “The disconnect between the elite”, people who have the kinds of educations that we’re seeing on the Supreme Court, right, Harvard and Yale put a period on it, “The disconnect between people with dramatic money, the disconnect between corporations who are threatening states with loss of jobs if they don’t obey the corporation’s opinion on gender or marriage, etc., the disconnect between the well-off and the poor, between the privileged and the less privileged, the elitely educated and the working man and woman, it’s creating some very serious social effects”. The Supreme Court continuing to find what five people want in the Constitution is only going to fuel a kind of populist anger, and a kind of almost irrational revolt; in some cases it will be just rational commonsense being attempted to be put into the public debate. It’s a very scary pattern for five human beings to be able to tell 360 million Americans that something they have invented out of whole cloth is the last word. That’s what we have in abortion law, that’s what we have in marriage law, it’s what we have in cases of deciding about federal power to pass certain laws in the Constitution. What Posner is saying, I think, is fundamentally problematic. We should know what we think the founders meant by the Constitution, and how Americans have actually abided by. It’s not that we can’t say the country has lived in a particular way for 200 and some years and people understand the Constitution this way, okay, so be it. But five justices making stuff up, I really think that’s going to lead in an even greater risk in a democratic culture than you’ve seen so far. Dan Proft: She is Helen Alvare, professor of law at George Mason University school of law. Helen, thanks for joining us again, appreciate it. Helen Alvare: Thanks for having me.

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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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Scalia Law Clerk Discusses the Justice's Life & Legacy

Ed Whelan, the President of the Ethics and Public Policy Center, joined Dan & Amy to discuss his time as a law clerk for the recently departed U.S. Supreme Court Justice Antonin Scalia, what Scalia would say about the process to replace him, and the enduring importance of Scalia's three decades of jurisprudence on the high court.

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Dan Proft: Dan and Amy. So still a lot of tributes pouring in for Justice Antonin Scalia, appropriately so. The most important constitutional scholar on the bench since John Jay, in my humble opinion. And coming from a lot of quarters and not just colleagues like Ruth Bader Ginsburg who came from a different ideological perspective. Piece in The Atlantic today why Scalia was so great. And so reflections on his importance in the history of our country and the history of jurisprudence in this country. That's number one, and then number two, of course, is importance going forward in terms of the seat that he held and the political fallout from it. Pres. Obama saying yesterday, according to an aid, that he is not going to try and force-feed a recess appointment while the Senate is in recess until February 22nd. So this sets up for whoever the president puts forward as his nominee to be a bit of a political football between now and November. For more on Scalia's life and legacy and impact as well as the dynamic going forward, we're now happy to be joined by Ed Whelan, who clerked for Justice Scalia, and now is the president of the Ethics & Public Policy Center. Ed, thanks so much for joining us. Appreciate it. Ed Whelan: And thank you, Dan. Dan Proft: Well, before we reflect on Scalia and your time with him, I wonder what you think Scalia would say about the back and forth between McConnell and Republican candidate for president and the incumbent president of the United States about his vacancy. Ed Whelan: Well, he would say a number of things. That some of them he did say in the past. He said that the less pollicization of the Constitutional Law has politicized the confirmation process. If justices aren't doing law but instead are doing politics, then people want them to just do politics. Then of course, the confirmation process becomes a huge spectacle. He would say more than that, though, that of course, the confirmation process is inherently political. It's the very means by which we put–the justice is on the court, and it will often involve grand clashes between the two branches. Justice Scalia was a great proponent on the separation of powers and of the clashes that were left to the political realm, and he would understand that of course, the president has the power to nominate and of course, the Senate has the power to confirm or reject a nominee and to do so by any means it should including just sitting on a nomination if it cares to. So none of these would surprise him. He would be–and was of course, saddened by the turn that the court has made into policy making over the last several decades and with this is, in many ways, the natural product of that. Amy Jacobson: What do you think was his biggest victory and possibly his most stinging defeat? Ed Whelan: Well, his biggest victory was the advance of the cause of originalism and texualism. That is the notion that law has an object of meaning that is to be discerned by judges. This is a notion that, believe it or not, had been largely abandoned in the Warren Court or the justices are pretty clear that they were just making it up. So there's always been a general re-embrace of that. Unfortunately, many folks abandoned that when it's inconvenient to adhere to it. And so he was seeing major cases including so-called substantive due process cases. The court's just making it up again rather than leaving matters to the political processes to the side. One great example of that, we can point to a number of loses, but would certainly be Planned Parenthood v. Casey in 1993. I'm sorry, 1992. The Supreme Court had the opportunity to overturn Roe v. Wade. And Justices Kennedy, Suter, and O'Connor blinked and wrote a ridiculous opinion that said that they were going to resolve this issue once and for all, of course that didn't turn out that way. Let me be clear. Justice Scalia, whatever his own personal opinions on abortion were, his constitutional position–was is a matter that's left to the political process used to decide. He wasn't going to entrench his prolife views, assuming those were what they were, into the constitution. He would go, "Leave that where the constitution left it." And I think he sees a lot of the ugliness and divisiveness around the court resulting from the court's failure to abide by that general rule that contentious issues that are left by the Constitution to the Democratic processes should be left there, not seized by the court. Abortion is one example, obviously, there are plenty of others. Dan Proft: Yeah, the constitution clarity is really important. I remember a piece that he wrote for first things about 12 or 13 years ago where he made the point explicit–if there was a move to ban abortion at the federal level, I would also hold that to be unconstitutional because the constitution is silent on it so it's a matter for the states. So to your point about not imposing his personal view and kind of bootstrapping where he would like the country to be into the constitution. Ed Whelan: Right. You see, likewise on issues of same-sex marriage, the death penalty, and so on where his supposed arch conservative position was simply that this is a matter that's left to Democratic processes. Not one I in which he or other justice’s kind of pose their own moral or policy preferences. Dan Proft: In his epilogue in his book, Dissents, from about a decade ago, he writes about what Scalia's America would look like. And I thought this was an interesting few pages of Scalia's kind of vision for, if you could wave a wand and what this would be like. And even in that kind of hypothetical world of Scalia's America, he's still more to the constitution which is pretty interesting. He writes, “In Scalia's America, the expansions of freedom, democracy, and diversity would be ably protected by, among other institutions, courts, that respect the rule of law. Judges charge with interpreting laws would give words their ordinary meaning, they would moor their solutions of constitutional disputes of the text of the charter and the meaning of its framers. America would be reborn as a nation of loss and not of men.” It seems to me despite Scalia's best efforts, we're a bit unmoored and we look more today like a nation of men and not law than we did when he was confirmed in '86. Ed Whelan: Well, things will get far, far worse if Pres. Obama has the ability to entrench a liberal majority on the court for the next generation. At that point, any pretenses and moderation are part of the liberal justices will disappear. They'll be, "Anything goes." You'll see a severe restriction of First Amendment Free Speech Rights in the name of so-called hate speech which turns out out to be any speech the leftist disagrees with. You'll see a repeal of Second Amendment Rights, you'll see property rights severely diminished, and the constitution, as we know it, we will–it becomes something very, very different. So that's why this battle over the coming months is so important. And those who respect Scalia's legacy ought to do their best to fight, to make sure that his seat isn’t handed over to someone who rejects it. More importantly, I suppose, the American people can decide how things are crystalized, they can decide in November. If they want to take this anti-constitutional route, well, at least give them the opportunity to vote that in by selecting the president who'll do that in November with the issue clearly before them rather than claiming that somehow, this is a result of their votes in 2008 and 2012, ignoring of course the senate votes in 2014. So I hope very much that this seat remains vacant for the next president and that would be one way of honoring Justice Scalia's legacy. Amy Jacobson: Now, during your time when you were clerking for Justice Scalia, what value did he instill in you? Or bring out in you as a man? Ed Whelan: Well, he deeply saved my legal thinking and the need for rigor. Always trying to test one's own views against policy preferences. Lawyers should be trained to do this. But this was his way, if you advance a principle is change the fact and see if you still adhere to the principle. If not, you're just advancing your own policy position. So he loved vigorous and rigorous debate. He, of course, is a brilliant writer. It was just wonderful to see how he would take what we all thought were good clerk-written drafts and make them so much better and make them distinctively his own. So it was just a wonderful experience. Dan Proft: Some of the scuttlebutt on Scalia is that clerks, his secretaries, anybody that was under his employ or even colleagues, even if they disagreed with them, they really enjoyed being around him. He was an affable, entertaining, fun guy to be around. Was that your experience? Is that a fair characterization? Ed Whelan: Absolutely. Of course, work was work. So I'm not going to say he was the singing showtunes. Dan Proft: Right. [cross-talk] Ed Whelan: Though he would occasionally break into a Diddy. But no, he had a wonderful laugh, great story-teller, really enjoyed the company of people. Again, you could see how his friendships crossed ideological lines. He could see the good qualities in people with whom he disagreed vigorously on legal, moral issues. So he was a great man and someone he respects. Dan Proft: Did you ever get to go hunting with him? Ed Whelan: I never did go hunting with him. No, no, I missed out on that. Dan Proft: All right. All right. Ed Whelan, he was a former clerk for Justice Antonin Scalia, as we've been discussing. And he is the current president of the Ethics & Public Policy Center. Ed, thanks so much for joining us. Appreciate it. Ed Whelan: Thank you, Dan and Amy.

 

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