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March 23, 2017 - The Ben Shapiro Show
24:09
Ep. 274 - Trump's Judicial Pick Shines
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On Tuesday, renowned legal journal Cosmopolitan Magazine ran a piece titled, Nine Ways to Make Your Man Gasp in Bed.
No, actually they could have run that piece, but we know that they actually ran a piece titled, Nine Reasons Constitutional Originalism is Bull Bleep.
Written by NYU graduate Jill Filipovich, the article evidences all of the brilliant jurisprudential analyses we've come to expect from the journal that informs you which sex positions best tickle your significant other properly.
Here are Filipovich's nine critiques.
1.
No one is really an originalist.
Filipovic argues that judges don't actually pay attention to the original wording and meaning of the Constitution, instead substituting their own policy preferences.
As evidence, she chooses D.C.
v. Heller, a decision that re-enshrined the individual right to keep and bear arms.
Why isn't that originalist?
Because, Filipovic says, the founders meant to restrict arms ownership to militia members and didn't know what handguns were.
There's a direct quote.
Nor, of course, did handguns exist in the 18th century.
Both of these contentions are false.
Militia members were members of the community.
There were many state laws that required all able-bodied men of age to own a gun so as to be available for militia duty.
The Militia Clause is a justifying clause, not an operative one.
And handguns were in use as early as the 14th century.
Two.
Societies evolve, and that's a good thing.
Filipovich argues that scientific knowledge should impact how we interpret the Constitution.
For example, brain science should help determine what the founders meant by cruel and unusual punishment.
But we have legislatures for that.
The Constitution bans cruel and unusual punishment, but legislatures can outlaw certain tools.
She mixes up the role of the courts to apply the meaning of the law and that of the legislature to make policy.
She even says she hopes the courts would rule capital punishment unconstitutional on this basis, even though the Constitution clearly contemplates capital punishment multiple times.
Third, words evolve to reflect changing norms.
Filipovich says that words like equal meant something different in the 1790s than they mean now, particularly with regard to women and minorities.
She is right.
This is why America implemented constitutional amendments in order to enshrine those new meanings, as per the 14th Amendment for black folks and the 19th Amendment for female folks.
It is not the job of courts to rewrite meaning.
Four, technology evolves and the law has to keep up.
Filipovich argues it's difficult to apply constitutional principles to modern technology.
So, for example, the provisions of the Constitution guaranteeing liberty from unreasonable search and seizure, how would they apply to cars or wiretaps?
These are indeed controversial propositions in originalist circles, but that doesn't mean we ought to merely ignore what the framers intended, in principle, in order to reach our own policy preferences.
Fifth, originalism is a cover for legal discrimination.
Again, this ignores the fact that we have legislatures in this country.
You can't rewrite founding documents to implement your own version of utopia.
Filipovich says correctly that, quote, a lot of our laws originally allowed a lot of terrible acts.
This is true.
It is also the reason we have, you guessed it, legislatures and amendments.
She says that Plessy v. Ferguson, which said segregation was okay and was reversed by Brown v. Board of Education, is a good example of courts evolving.
She ignores the fact that Plessy was arguably wrongly decided on his merits at the time.
That's the case Justice Scalia made during his career, stating that quote, in my view, the 14th Amendment's requirements of equal protection of the laws, combined with the 13th Amendment's abolition of the institution of black slavery, leaves no room for doubt that laws treating people differently because of their race are invalid.
Even if Scalia was wrong on originalist grounds, that doesn't mean the legislature could not or should not have taken the proper measures.
Again, courts are not legislatures.
And just because history was full of bad stuff doesn't mean the Constitution doesn't provide mechanisms to fix that bad stuff outside of Jill Filipovich convincing Ruth Bader Ginsburg to run roughshod over the Republic.
Sixth contention, not even the founders were originalists.
This is just horse crap.
Filipovich says, quote, the framers of the Constitution didn't offer any instructions for how to interpret the document.
Actually, it's dubious whether the founders even agreed with judicial review.
But if they did, there's no doubt they would have hated the court's usurpation of legislative power.
See, for example, Alexander Hamilton in Federalist 78, quote, the courts must declare the sense of the law.
And if they should be disposed to exercise will instead of judgment, the consequence would be equally the substitution of their pleasure to that of the legislative body.
The observation, if it prove anything, would prove there ought not be any judges distinct from that body.
All laws are applied as written.
No judge would dare interpret the Sherman Antitrust Act the way leftists encourage judges to interpret the Constitution.
Seventh contention from Cosmo Magazine.
The founders weren't fortune tellers and couldn't predict every possible legal issue.
Here, Filippovich states that, quote, many of the realities of modern life didn't exist in the 18th century.
That's true.
You know who else knew that?
The founders.
Because they relied on legislatures to create law.
Filippovich makes the idiotic assessment that if you're an originalist, if the founders, quote, didn't specifically bar the government from doing something, the government is free to do it.
That's insane.
That looks only to the Bill of Rights, not to the Structural Constitution, which delegates powers.
The founders explicitly rejected Filippovich's logic and said so in the Ninth Amendment, which reserved rights to the states and to the people.
As for Filipovich's example of governments doing bad things at the state level, again, true.
The founders recognized that and relied on people not to be complete morons.
But they didn't trust the people completely, which is why they created some federal rights.
I do, if she means that legislators should legislate, and get this, judges should adjudicate.
She quotes UC Irvine law professor Erwin Chemerinsky for the proposition that if the court didn't impose its will, quote, this would mean the end of constitutional protection for liberties such as the right to marry, the right to procreate, the right to custody of one's children, and the list goes on.
Yet, magically, for decades, the court did not read its preferences into the Constitution, and yet the country didn't descend into chaos and anarchy.
That's because we elect people here.
Yes, legislatures exist.
Ninth and final point.
A constitution that doesn't reflect changing norms and realities is a constitution that would eventually prove itself ineffectual and irrelevant.
Filipovich says the judicial system cannot be neutered lest it fail to check the other branches.
Except that she wants the other branches to be incapable of checking the mystical wisdom of the judicial oligarchy.
A constitution that changes at the whim of nine unelected judges means a country ruled by a clique, not by the people or their elected representatives.
Even Filipovich has to admit, quote, of course the Constitution should be interpreted as it's written.
But she then says that what she means is that judges should interpret it as they wish it had been written.
The Constitution, in other words, should have more positions than Cosmo.
And they will all be less satisfying.
I'm Ben Shapiro.
This is The Ben Shapiro Show.
Okay, so that lengthy introduction was meant to illuminate you to the issues surrounding what the left thinks of what judges are supposed to do and what the right thinks of what judges are supposed to do.
And that means, as you can hear, all the logic, all of the decency is on the side of the right on this one.
When it comes to originalism, The decency in the judiciary is all on the side of the right, and we're about to go through what should be the best time of Trump's presidency so far, the Gorsuch hearings that happened yesterday, the day before, they're happening today as well.
Judge Gorsuch is doing a terrific job in front of the Judiciary Committee.
I'll talk about some problems with the system of judicial nominations and why they're a problem, why that system is crappy.
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OK, so.
The news yesterday and this week outside of the Gorsuch hearing has not been good for President Trump.
We'll talk about Trumpcare in a little while.
We'll also talk about some of the issues surrounding Russian connections.
There's a big story about Paul Manafort, who's the former Trump campaign manager.
Apparently, he was working very closely with Vladimir Putin's allies for a number of years.
We'll get to that in a little while.
But first, I want to talk about what should be the high watermark for Trump's presidency.
The reason I want to talk about this is because I want to point something out.
A lot of people have been saying that nationalist populism, this kind of new style Trumpism, that that is where the popularity of republicanism and conservatism are going to lie.
That if we change over to this nationalist populism, that's where conservatism is really going to be great.
That's where conservatism is really going to be able to do yeoman's work.
The Gorsuch hearing shows the opposite.
The Gorsuch hearing shows that traditional conservatism, and I mean small government traditional conservatism, with checks and balance and separation of powers, is still a more powerful idea than the idea of some great god-king on a hill deciding who gets to have a job and who doesn't get to have a job.
Gorsuch's hearing are the best thing that could have happened to Trump.
They were great.
Judge Gorsuch did a terrific job.
You can see it started off with Ted Cruz, the senator from Texas, asking Neil Gorsuch, It serves well to rebut the caricature that some on the left try to paint of originalism.
And so under the caricature that some of the Democrats have suggested, you would assume the originalists in the case.
Would all line up on the side of saying, well, gosh, the Fourth Amendment doesn't cover that.
And yet, the Kylo case, the majority opinion, 5-4, was written by Justice Scalia, perhaps the leading originalist on the court.
Okay, and he's right about that.
Gorsuch proved in this hearing that originalism is a hearty philosophy that makes perfect sense.
Again, the judiciary has a different role than the legislature.
Legislatures make law.
The judiciary applies the law according to the wording of the law.
When the judiciary starts doing its own thing, as Alexander Hamilton said, it loses its reason for existence.
And Gorsuch is very clear on this, which is why, you know, it's interesting.
I'm not sure that Trump is going to be all entirely happy with every decision Gorsuch makes.
So all credit to Trump for nominating somebody who may rule against him in certain cases.
Here is Judge Gorsuch talking about what it means to be a judge.
He says your personal views should not decide the law.
My personal views, I'd also tell you, Mr. Chairman, belong over here.
I leave those at home.
Mr. Kochel yesterday said that what he wants is a fair judge.
That's what I wanted as a lawyer.
I just wanted a judge to come in and decide on the facts and the law of my client's case and leave what he had for breakfast at the breakfast table.
And part of being a good judge is coming in and taking precedent as it stands.
And your personal views about the precedent have absolutely nothing to do with the good job of a judge.
Okay, so the last thing that he says there is actually somewhat troubling for conservatives, and I would like to see conservatives drill down on this.
So, there's something in judicial philosophy called stare decisis.
Stare decisis means a case has already been decided, it just means precedent.
There's always been a lot of controversy over how much respect to give to precedent.
If a case has already been decided, is it something that you should follow, or is it not?
So there are lots of cases in American history where the judiciary has decided that a case was wrongly decided 50 years before, and they overturn it.
Roe v. Wade would be a good one to do right now.
And we still don't know what Gorsuch would do about Roe v. Wade.
Cases in history where we overturn a judgment include things like Plessy v. Ferguson and Brown v. Board.
As I mentioned, Plessy v. Ferguson said segregation was okay.
Brown v. Board says it's not.
Another obvious case is Obergefell about gay marriage, which overturns a bunch, a whole string of cases at the Supreme Court level, Lawrence v. Texas, which said that there was no state capacity to criminalize homosexual activity.
That overturned a much earlier case called Bowers v. Hardwick in 1989.
So stare decisis is really a way for judges to pick and choose.
And this is why I hope that the conservatives in this committee drill down on Gorsuch and say, OK, how do you decide when precedent rules and when precedent does not?
The most consistent person philosophically on this at the court was not Scalia, actually, it's Clarence Thomas, who says stare decisis is stupid.
Basically, if the case was wrongly decided, I'm not going to pretend that it's a better decision just because it was decided 10 years ago or 20 years ago.
The reason that this matters is because here is, for example, Gorsuch talking about Roe v. Wade as precedent, this is clip 8.
One of the facts and one of the features of law that you have to decide it on is on the basis of precedent, as you point out.
And for a judge, precedent is a very important thing.
We don't go reinvent the wheel every day.
And that's the equivalent point of the law of precedent.
We have an entire law about precedent, a law of judicial precedent.
Precedent about precedent, if you will.
Those are all factors that a good judge will take into consideration when examining any precedent.
You start with a heavy, heavy presumption in favor of precedent.
Alexander Hamilton said that's one important feature, I think it was Hamilton, said one important feature of judges.
If we're going to give them life tenure, Allow them that extraordinary privilege.
They should be bound down by strict rules and precedents.
Okay, so here's the problem with some of this, and the reason I don't believe in precedents.
Again, it allows you to pick which precedents you choose to follow and which ones you don't.
What would be really great in these hearings, honestly, and the only reason to have these hearings, Democrats destroyed the notion of a judicial hearing.
It used to be that you could just say to a judge, okay, Roe v. Wade, bad case or good case.
Every law student, every person basically has an opinion on whether Roe v. Wade is a bad case or a good case.
Certainly anyone who's ever read the decision with any sort of legal head understands it's a bad decision legally, even if you like the outcome.
It shouldn't be out of balance to say, Roe v. Wade, bad decision or good decision?
These are questions we should want to have answered before we actually get to put somebody on the Supreme Court.
And Democrats don't have any qualms about asking these questions.
They say openly that they have litmus tests with regard to their own people, that they issue these litmus tests.
If people would uphold Roe v. Wade, then they're appropriate for the court.
If not, then they wouldn't.
But because Democrats have vowed to basically shut down any justice who has a clear-cut opinion about important cases, well, you end up with these very milquetoast hearings.
In any case, Gorsuch does a good job with the milquetoast hearings.
You wouldn't expect him to come out and say Roe v. Wade is a crappy case, because if he did, then presumably a bunch of Democrats would attempt to filibuster him, and some Republicans would break off and join because they're weaklings.
That said, Gorsuch does a very good job of navigating smoothly what these hearings are, which is basically an opportunity for him to explain his philosophy in the most general possible terms and smack down allegations against him.
So here's an exchange that was pretty great where Dick Durbin from Illinois, who's just an idiot, claims that Gorsuch is anti-woman because he once taught an ethics class in which he talked about the law regarding sexual harassment.
And here's Gorsuch just smacking Durbin around like a piñata.
Senator, those are not my words and I would never have said them.
I didn't say that.
I asked you if you agreed with this statement.
And I'm telling you, I don't.
Owie!
And here's the thing about Gorsuch that I do like, is that he seems like somebody who is not going to be beholden to political interests.
So he was asked specifically about President Trump's attacks on the judiciary, and here was his answer.
This is Thive.
I know these people, and I know how decent they are.
And when anyone criticizes the honesty or integrity, the motives of a federal judge, well, I find that disheartening.
I find that demoralizing, because I know the truth.
Anyone, including the President of the United States?
Anyone is anyone.
Okay, and this speaks well of Trump that he nominates a guy who's willing to go out and say stuff like this.
Gorsuch really smacked around a bunch of Democrats yesterday.
Al Franken was criticizing the confirmation process, and Gorsuch smacks around Franken as well.
Senator, there's a lot about this process I'm uncomfortable with.
A lot.
But I'm not God.
No one asked me to fix it.
I'm here as a witness, trying to faithfully answer your questions as best I can, consistent with the constraints I have as a sitting judge.
Okay, and again, that's, I think, good stuff.
The fact that Al Franken, Stuart Smalley, is out there quizzing him is just insane.
Okay, the fact that Stuart Smalley is on the Judiciary Committee quizzing him about cases he knows nothing about.
I mean, he knows nothing about Chevron deference, he knows nothing about any of these issues.
It's just completely crazy.
But, you know, that's the way the system works.
The biggest problem, as I say, with these judicial hearings is you never get any good answers.
You never get the answers that you actually want and that you actually care about.
So, for example, Gorsuch is asked again about Roe v. Wade by Lindsey Graham.
This time he's asked if Trump asked him to overturn Roe v. Wade, and here's Gorsuch's answer.
In that interview, did he ever ask you to overrule Roe v. Wade?
No, Senator.
What would he have done if he'd asked?
Senator, I would have walked out the door.
It's not what judges do.
They don't do it at that end of Pennsylvania Avenue, and they shouldn't do it at this end either.
So he's objecting to the idea that Trump would ask him to overturn a ruling.
The fact is that Trump, I hope, asked him, how would you rule on Roe v.
Wade?
Not you have to rule to overturn it, but how would you rule?
I would ask that if I were president.
I would ask any judicial appointee how they would rule on controversial cases, because this is stupid.
The only reason you appoint a judge is if you know if they have a good long history of ruling in a certain way.
Now, the reason I like Gorsuch as a nominee is because he does have a pretty good judicial history of ruling on some controversial issues, and he has generally ruled the correct way, but What we've ended up with is a judicial confirmation process that actually makes the system more vague, not less vague.
And that's a real problem.
For example, Gorsuch's Ist asked how he would rule on the Muslim ban.
Same sort of thing.
Here's what he says.
Now, does the First Amendment allow the use of a religious litmus test for entry into the United States?
Senator, that's an issue that's currently being litigated actively, as you know.
I'm not asking about the litigation in the Ninth Circuit or anything else.
I'm asking about the fact, is a blanket religious test, is that consistent with the First Amendment?
Senator, we have a free exercise clause that protects the free exercise of religious liberties by all persons in this country.
If this feels clearer to you, then somebody let me know.
Just a minute ago, Gorsuch in the hearings was asked whether he accepted that Roe v. Wade was the law of the land.
He said, yes, I accept that it's the law of the land.
That doesn't mean he wouldn't overturn it, right?
He could still overturn it and accept that it is currently the law of the land.
These confirmation hearings don't do anybody any favors because they actually make the answers more vague, not less vague.
And that's the fault of the Democrats who have politicized these hearings to the point where anybody who disagrees with them about a case must immediately be ruled out of line because they actually want to use the judiciary as a way of cramming down their own policy preferences.
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Okay, so Gorsuch does a really good job.
And Gorsuch is very solid in these hearings.
He navigates all the shoals well.
The Democrats make fools of themselves.
They just keep saying stupid things over and over and over again, just repeatedly.
And it's a great moment for Trump, right?
This would be the best moment for Trump if we weren't all distracted with Russia stuff and Trumpcare stuff and all the other things that Trump is busy shooting himself in the foot with.
So Democrats have been struggling.
Because they don't actually know what to do with this.
So what they've decided is that they're going to come up with an alternative strategy.
They can't actually lay a glove on Gorsuch, so what do they do?
So Brian Williams, the fake news anchor at MSNBC, he says that it is obviously tough to lay a glove on Gorsuch, who knows what he's doing.
It's tough to lay a glove on this guy.
I didn't see a single glove laid on him.
This has been a slam dunk in terms of his initial cues and A's.
You're going to see some of the more intensive questioning, but they have not, as you put it, laid a glove on him.
And, you know, they're upset about this.
What do they do?
Chris Matthews, you're always safe.
Guys in the morning, come to the show.
They're coming out here, talking about Bill Gorsuch.
Why?
I don't know.
Who's Bill Gorsuch?
Ah, let's talk about it.
Go.
It's about starting to fix the system.
Our president nominates a Supreme Court justice.
The Senate deliberates on the nomination.
We will not get back to such respect if we let Trump exploit the vacancy Mitch McConnell created.
We cannot allow these two opportunists to complete what we call in basketball The alley-oop play.
One guy throws the ball high up there above the basket and the guy standing there right underneath jams it in.
I don't want to see Donald Trump stuff his nominee through the hoop.
Why?
Because it's not his turn.
It's Merrick Garland's turn and everyone knows it.
Vote nay on Gorsuch.
Demand the 60 votes and don't give them to Trump.
It's not this guy's turn.
It's not his guy's turn.
And all the charm and dancing and Mr. Nice Guy is not going to change it.
It's not about Gorsuch or even Trump.
It's about Mitch McConnell.
And the brand of low-level politics he stands for.
Get it?
Don't let him.
Don't let him.
Please.
Don't let him take a three-pointer and then there's a rebound out to the free-throw line and Jordan goes up and then he alley-oops to Scottie Pippen and jams it through.
You shouldn't do that with judges because judges don't fit through hoops.
That's the thing.
That's the thing that I'm trying to explain to you right now.
It's good to know you have a seat.
Come have a shoot.
Talk about basketball.
Little Showtime Lakers, huh?
They're new cases, basically.
Gorsuch is a great nominee, but he can't be put through because the Republicans refused to vote on Merrick Garland, who is President Obama's nominee to fill Scalia's slot.
This isn't going anywhere.
Let the Democrats blow themselves up on this one.
It should be a great moment for Trump now.
As we continue, we're going to talk about some not-so-great moments for Trump.
Plus, there is a breaking news story that I have to tell you about.
A couple of stories that are, I think, going to... I'll talk about the political fallout from them, but they're pretty incredible stories.
We'll talk about them.
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