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July 10, 2018 - The Ben Shapiro Show
52:14
Kavanaugh, Kava-yes! | Ep. 577
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President Trump makes his big Supreme Court pick and the left has a complete and utter meltdown.
I'm Ben Shapiro.
This is the Ben Shapiro Show.
There's certain days when this right here, it just keeps overflowing, overflowing and overflowing.
And today, we basically had a massive plumbing problem because the leftist tears that were in this tumbler just kept flowing upwards and outwards.
In fact, my feet are now underwater.
I mean, it's creeping up to my knees.
That's how much, that's how many tears are coming out of this leftist tears hierarchical tumbler.
We'll talk about all of that in just a second.
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Okay, so yesterday was quite a day.
Everybody waiting on tenterhooks to see who exactly President Trump would pick to replace Justice Anthony Kennedy on the Supreme Court.
And Trump did a great job of holding that secret all the way up until the last minute.
It was only about 45 minutes before the event that those of us in the know began to figure out that it was definitely Brett Kavanaugh.
That was when Judge Amy Coney Barrett was discovered back in Indiana, so she wasn't in Washington, D.C., and Kethledge had basically been ruled out.
And then there were rumors that Kavanaugh was headed over to the White House.
And that basically sealed the deal.
The White House pitched this thing like a reality show because that's what President Trump does best.
They actually put out a little 15-second clip of a camera moving toward the White House podium and then scrolling up toward the microphone before it cut to black.
And then it said, 9 p.m.
Eastern tonight.
And then the question was, who would get the robe?
Not the rose, the robe.
And it turned out to be Judge Brett Kavanaugh.
So President Trump announced the pick, obviously having a fantastic time doing it.
We'll talk about Kavanaugh, what he means for the court in just a second.
Here was President Trump suggesting that when he picks a Supreme Court justice, he does not ask that justice's opinions on the law.
In keeping with President Reagan's legacy, I do not ask about a nominee's personal opinions.
What matters is not a justice.
judges' political views, but whether they can set aside those views to do what the law and the Constitution require.
And of course, that's exactly true for a lot of people on the right.
There are a lot of rulings where it doesn't go the way you would want it to go politically, but it is the way that the Constitution protects things.
And Trump is exactly right to say that about Kavanaugh.
It's also smart to say that, obviously, because people think that Trump asked Kavanaugh if he'd overturn Roe v. Wade, and Kavanaugh said yes, and then Trump picked him.
There's also a rumor going around today, put out by, I believe it was ABC News, completely unverified, that Brett Kavanaugh was basically chosen by Anthony Kennedy.
That Anthony Kennedy, when he decided that he wanted to step down from the court, went to the Trump administration and said, I'm only going to step down while you're president, so long as you make Brett Kavanaugh my successor.
The mainstream media are pushing that like crazy today, suggesting that it was all a corrupt bargain, that Kennedy was appointing somebody who would continue to promulgate his legacy.
Even if that were true, I'm not sure why the left would be upset about that, considering that Kennedy was a left-leaning judge on a lot of the key issues, including same-sex marriage and abortion.
If he were appointing his own successor, you would think that the left would take solace in that fact.
But in fact, there is no evidence that any of this ever happened.
The reporter who originally repeated the story said she had no evidence that it happened.
She had just heard rumors to that effect.
Doesn't matter.
The left ran with it anyway.
Well, then Brett Kavanaugh gets up.
Brett Kavanaugh, of course, from the D.C.
Circuit Court of Appeals.
We've discussed his credentials in the past.
We've also discussed some of the shortcomings in his record.
We'll talk about what he's going to do for the Supreme Court in just a second.
He did a little speech.
The president ushered him up to the podium.
And then Brett Kavanaugh came forward and everybody went, oh my God, that's Brett Kavanaugh's music!
And then he sort of charged forward to the microphone and then he proceeded to give a speech about his background and his past and then his judicial philosophy.
Here's what he had to say about his judicial philosophy.
My judicial philosophy is straightforward.
A judge must be independent and must interpret the law, not make the law.
A judge must interpret statutes as written.
And a judge must interpret the Constitution as written.
Informed by history and tradition and precedent.
Okay, the reason that he adds precedent right there is because precedent is a fudge word.
If he had just said a judge must interpret the Constitution as written, informed by history and tradition, we'd all say, great, that's Thomas's standard, that's Scalia's standard.
By adding the word precedent, he allows himself a little bit of wiggle room, so when people on the left say, well, you'd overrule Roe v. Wade, wouldn't you?
He'd say, well, listen, precedent is still precedent.
Precedent is a legal fudge word, and Kavanaugh is fond of using it.
You know, I think that Kavanaugh is, in short, a stand-up double for the president.
I'm not sure that he's a homerun for the president.
I think there are a lot of good things about Kavanaugh.
I think that Trump could have gone for broke.
He decided not to.
But what Kavanaugh had to say in his speech last night was exactly right.
He talks about how he taught at Harvard Law School.
He was actually appointed while Elena Kagan was dean there.
She, of course, is on the Supreme Court now.
He's 53 years old.
He says that he teaches about the Constitution's separation of powers.
I teach that the Constitution's separation of powers protects individual liberty.
And I remain grateful to the dean who hired me, Justice Elena Kagan.
So he's dropping Elena Kagan's name right there because he's trying to win over some wavering Democrats.
Also, when he says that he teaches that the separation of powers protects individual liberty, that is him slapping at the so-called Chevron defense.
So as I've explained on the program before, there's a very famous Supreme Court case called Chevron, in which the Supreme Court essentially declared that administrative agencies ought to be given almost complete deference when it comes to the decisions that they make about individuals.
So the EPA decides that your toilet is now a protected federal waterway, and they decide to fine you based on that, and you sue the EPA.
And the EPA has an administrative procedure, you have to go through the administrative procedure, and then it comes out against you.
So you decide to go to the judiciary branch, right?
The EPA's in the executive branch.
You decide instead to sue in federal court.
Chevron deference would suggest that the EPA could make the final decision on all of that.
The more conservative judges like Kavanaugh, people who believe in separation of powers, believe that Chevron deference is a mistake and that you can't give executive agencies the power to rule on the rules that they make themselves.
This is exactly right.
And finally, Kavanaugh says that he believes in an independent judiciary.
I believe that an independent judiciary is the crown jewel of our constitutional republic.
If confirmed by the Senate, I will keep an open mind in every case.
Okay, so, all of this sounds good, and he's saying all the right things to get through a confirmation hearing.
What does his record actually say?
So there are a couple of areas where he's really good.
One is on administrative law, and one is on guns.
He's excellent on guns.
There's an article over at Reason Magazine by Jacob Sullum, who follows this stuff, and he points out that in a 2011 decision in which a three-judge panel upheld the District of Columbia's ban on so-called assault weapons and its requirement that all guns be registered, Kavanaugh dissented.
And he said instead that an analysis based on text, history, and tradition is consistent with the Supreme Court's Second Amendment precedents.
He suggested that assault weapons bans should actually be forbidden by the Constitution of the United States.
This, of course, has the left up in arms, no pun intended.
He says that When the assault weapons ban was formulated, it included a bunch of different features of the guns that ought to be banned.
He says the list appears to be haphazard.
It bans certain semi-automatic rifles but not others, with no particular explanation or rationale for why some made the list and some did not.
And then he concluded that the assault weapons ban in DC was inconsistent with DC versus Heller.
He said in Heller the Supreme Court held that handguns, the vast majority of which today are semi-automatic, are constitutionally protected because they've not traditionally been banned, are in common use by law-abiding citizens.
There's no meaningful or persuasive constitutional distinction between semi-automatic handguns and semi-automatic rifles.
So he's good on that.
He also has ruled in favor of people being able to spend money in elections and corporations being able to spend money in elections.
In Citizens United vs. Federal Election Commissions, he wrote an opinion rejecting FEC rules that made it harder for advocacy groups to raise money.
He said because donations to these hard money accounts are capped at five grand annually for individual contributors, the FEC's allocation regulations substantially restrict the ability of nonprofits to spend money for election-related activities.
And he says that can't be reconciled with the First Amendment.
Now, where he's a little weaker is on Fourth Amendment rights.
So if you are a civil libertarian and you're deeply concerned with the government violating search and seizure and reasonable search and seizure, Kavanaugh is not a justice you're going to like very much.
In 2010, he dissented from the D.C.
Circuit's decision not to rehear a case in which a three-judge panel had ruled that police violated a suspected drug dealer's Fourth Amendment rights when they tracked his movements for a month by attaching a GPS device to his car without a warrant.
He said that tracking did not constitute a search, Because of the quality and quantity of information.
So putting a tracker on somebody's car doesn't require a warrants according to Brett Kavanaugh.
That rationale is interesting at the very least, but it shows that he is more of a law and order sort of William Rehnquist type judge.
Rehnquist, of course, was Chief Justice of the Supreme Court all the way up to the point at which Justice Roberts became Chief Justice of the Supreme Court, if I'm not getting that wrong.
In any case, Kavanaugh has been very pro-police.
He is not a big fan of Terry vs. Ohio.
He's not a big fan of a lot of these sort of civil libertarian decisions that some on the right are fond of.
He also is very anti-Chevron deference, as I mentioned.
He does not believe that the administrative agencies ought to have complete power over everything that you do.
He says Chevron has been criticized for many reasons.
There's a 2016 book review.
To begin with, it has no basis in the Administrative Procedure Act.
Chevron itself is an atextual invention by the courts.
In many ways, Chevron is nothing more than a judicially orchestrated shift of power from Congress to the executive branch.
Moreover, the question of when to apply Chevron has become its own separate difficulty.
So, Kavanaugh is very anti-Chevron deference.
So, on guns and on administrative state stuff, Kavanaugh is really, really good.
He's a little bit weaker when it comes to religious freedom stuff, maybe, although that's not completely clear.
In Priests for Life, for example, he said that the government had a compelling government interest in providing contraceptive care to people.
He said that even that compelling government interest could not overcome the religious presumption on behalf of priest groups, on behalf of religious groups.
They wanted to have health care done in coordination with their with their First Amendment rights.
But he said that the government did, in fact, have a compelling government interest when it comes to contraception.
And of course, in Seven Sky, he was the creator of the rationale that suggested that Obamacare was a tax and not a fine.
Now, in just a second, I want to talk about what Kavanaugh's impact on the actual court is going to be, because I don't think that he's going to be the kind of break-it-all-down, shatter-every-window, destroy-wholesale, the-left-view-of-the-law guy that some on the left fear and some on the right hope.
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Okay, so.
What does all of this mean for the court?
So I said at the very outset, I think that Kavanaugh is a double.
I do not think he's a home run.
On the political side, he's a double because the left is going to go nuts no matter whom Trump appoints.
It doesn't matter who Trump appoints.
Trump could appoint a chicken and the left would go completely insane.
Trump could have appointed Merrick Garland and the left would have said, there's some nefarious reason he's appointing Barack Obama's pick.
He really, it must be that Merrick Garland has secretly been body snatched and replaced with an evil right winger.
That's how much the left hates Trump.
The reality of the situation, however, suggests that Kavanaugh is not going to be this wild right-wing figure that everybody thinks he's going to be.
And that's why, if President Trump was going to get the flag anyway, he may as well have gone for Amy Coney Barrett.
I think he should have gone for Mike Lee, Amy Coney Barrett, someone you know is going to vote 100% of the time in the most robust fashion on constitutional issues.
I use the word robust advisedly there.
The reason I'm using the word robust is because I think Kavanaugh will vote the right way on a lot of these cases, but I think the opinions of which he will be part, the opinions that he will help write, the opinions that he'll write himself, I think those are going to be very narrowly tailored opinions.
And that makes a difference for the creation of precedent.
It makes a difference for the creation of the law.
Now, if you're going to get in the fight, you may as well go for broke.
And by the way, it would've been great to see Democrats attacking a 46-year-old mother of seven with two adopted children, including one from Africa, I believe, and attacking her as some sort of evil Okay, so what does this mean in terms of the actual decision making?
been delicious television and it would have really hurt Democrats in the midterm elections.
As it is, I think the Democrats will be jazzed up about Kavanaugh's appointment.
I think Republicans are sanguine with it and it'll go through no problem, but I don't think it'll necessarily fire up the base all that much.
I think a lot of Republicans are going to be satisfied now.
Okay.
So what does this mean in terms of the actual decision-making?
Well, why does it matter how a decision is written?
It matters how a decision is written because if you write a very broad decision, then that gives you the capacity to knock down a bunch of laws at one stroke.
If you write a very narrow decision, you can only knock down a certain narrow subset of laws at one stroke.
So to take a particular example, in the last...
The last judicial term, there's a case called Masterpiece Cake Shop.
We discussed it at length here on the program.
The Masterpiece Cake Shop case is a case where a religious baker in Colorado did not want to create a custom cake for a same-sex wedding.
And there's a law in the state of Colorado, created by the Colorado Civil Rights Commission, that said that you have to service anybody who comes into your restaurant or into your establishment And the ruling that came down from the Supreme Court said that that law was unconstitutional, but not because the law itself was unconstitutional.
It was only unconstitutional because the Colorado Civil Rights Commission had applied the law unequally.
In fact, they had targeted the religious person, but they had allowed seculars to go free, basically.
That if you were an atheist and you didn't want to cater a religious cake, then you didn't have to.
But if you're a religious person and you didn't want to cater a same-sex wedding, then you had to.
And they said that's discriminatory.
Well, that narrow grounds for ruling Well, in just a second I'm going to explain why I think Kavanaugh will be more of that.
law, basically forcing religious people to cater same-sex weddings, and that the Supreme Court would allow that to go forward.
That's the problem with the Masterpiece Cake Shop case.
Well, in just a second, I'm going to explain why I think Kavanaugh will be more of that.
So Kavanaugh is very much like Justice Roberts, in the sense that when you read his decisions, they're always very carefully tailored to the law that's in front of him, in the sense It's very rare that he uses a particular law in front of him in order to go after an entire body of law.
Now, maybe that's just because he's on the appeals court.
Because you're on an appeals court, that means that you're not at the Supreme Court level.
So you actually have to take into account what the Supreme Court says, and you have to use what the Supreme Court says as precedent.
Maybe now that he's on the Supreme Court, he'll be a little bit more audacious.
about striking down bad laws in the name of the Constitution.
But, if we're going to get a lot of masterpiece cake shop cases, if we're going to get a lot of cases that are very narrowly tailored, where he's very careful about how exactly those cases are decided, and he doesn't go to the root issue, what you're going to end up with is a lot of confusion at the court of appeals level.
And this is most obvious when it comes to abortion.
So a lot of folks on the right are very convinced that Kavanaugh, because Trump picked him, is going to step in and strike down Roe v. Wade tomorrow.
I am very, very skeptical that Kavanaugh and Roberts are going to strike down Roe v. Wade.
In fact, I'm very skeptical that a case even allowing them to strike down Roe v. Wade makes the Supreme Court.
The reason is because here is the process of how a case reaches the Supreme Court.
Let's say that the state of Montana decides that it wants to pass a law banning abortion except to save the life of the mother.
And that is appealed to the Circuit Court of Appeals.
And the Circuit Court of Appeals, applying Roe v. Wade, says this is unconstitutional, there's a right to an abortion, yadda yadda yadda.
Now, people on the right would say, well, good.
Let them do that.
Then it'll elevate to the Supreme Court.
And then the Supreme Court will knock down Roe v. Wade itself, and the law will be protected.
There's only one problem.
It takes four votes to actually determine whether a case reaches the Supreme Court.
So the way that the Supreme Court determines whether to take a case in the first place I don't think there are four justices that would vote to hear a case overturning Roe v. Wade.
In order for the Supreme Court to grant a hearing on the case, four justices have to vote to hear the case.
I don't think there are four justices that would vote to hear a case overturning Roe v. Wade.
I think that if it had been Coney Barrett, if it had been Mike Lee, I think there would have been four votes to hear the overturning of Roe v. Wade.
I think that because it is not, because it's Kavanaugh, I think Kavanaugh will work with Roberts to create a sort of new middle of the court— Now, that middle of the court is not going to be Justice Kennedy.
It's not going to be Justice Souter.
It's not going to be a wild left middle of the court where they're establishing rights to ridiculous nonsense just out of the box.
It's not going to be that.
What it is going to be is them refusing to take really big, broad, Huge cases.
And instead, it's going to be them gradually scaling back the application of Roe v. Wade.
So instead of them just striking down Roe v. Wade, letting the chips fall where they may, saying this is a bad decision, it's gone.
Instead, what they probably will do is they will look to a follow-up case to Roe v. Wade called Planned Parenthood v. Casey.
Planned Parenthood v. Casey.
It was a case in which Justice Kennedy wrote the decision.
It's a really crazy case because there were about 83 different opinions on the case.
The case was decided in 1992, and basically it was a plurality opinion, and it decided that Roe v. Wade is an opinion by O'Connor, Kennedy, and Souter.
Right, which is why it's a garbage opinion.
It basically decided that a state could pass a law that restricted abortion so long as it did not create an undue burden.
An undue burden for the woman attempting to get an abortion.
So the actual standard is the undue burden standard.
I'm finding the exact language.
They say, quote, we begin with the standard as described in Casey.
We recognize the state has legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that ensure maximum safety for the patient.
I say unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.
That's what Planned Parenthood v. Casey says.
Now, when that was decided, there were a lot of folks on the right who thought maybe this was the first step toward curbing Roe.
That basically, you'd get a bunch of laws that carved back the ability to get an abortion, and the court would just say, well yeah, it carves back the ability to get an abortion, but it's not an undue burden on the right.
You can still get an abortion in a variety of other ways.
That's not what happened.
It's not what happened, but now there's the suggestion that maybe that's what's going to happen.
Maybe the Supreme Court won't take a case overtly overruling Roe v. Wade, but the Supreme Court will take cases where, let's say, there's a fetal pain bill that says that you can't abort a baby after the 10th week.
And the Supreme Court takes that case, and they say, well, that doesn't present an undue burden.
A woman can still get an abortion.
She just has to do so in the first 10 weeks.
You could see that happening.
So would that mean that the right has lost?
That the Constitution has lost?
Well, the Constitution lost in the sense that the Constitution ought to be the guiding standard, and Roe v. Wade is a bad case, and you ought to just overrule it.
But the sort of circumspect way in which I think Kavanaugh and Roberts are going to approach the law jointly suggests that they will rule the right way, but they will do so slowly and gradually.
They're much more concerned with doing things slowly and gradually and incrementally than they are in simply overruling things outright.
Now, there's another problem with incrementalism that I'm going to explain in just a second.
So, the big problem with incrementalism is that once you create broad standards, right?
The left likes to create broad standards.
Obergefell saying that same-sex marriage is now legal across the country.
Abortion saying that it's not just legal, that states can't not perform same-sex marriages across the country.
Roe vs. Wade saying that abortion is legal across the country.
The left is never afraid to use a bat when it comes to creating judicial opinion.
They're never afraid to go as broad as humanly possible.
The right tends to pare that stuff back kind of gradually.
But that means that anytime the left gets control of the court, they immediately establish a new right that the right only tends to chip away at the edges regarding.
And that, to me, is always a net loss for the right over time.
Let's say that this court is solidly conservative, or at least solidly non-liberal, for the next 20 years.
Well, in that time, how much are they going to pare back Roe v. Wade?
They're not going to overrule it, I don't think.
How much are they going to pare back Roe v. Wade?
How much are they going to pare back challenges to religious freedom?
You really do have to make hay while the sun shines to a certain extent.
Remember, Justice Clarence Thomas, who's the best justice on the Supreme Court, bar none.
I love Clarence Thomas's reasoning.
I think he's a terrific judge.
Clarence Thomas is 70 years old.
He's going to be 72 when Donald Trump is up for re-election in 2020.
That means that if Donald Trump loses, he could be 80 by the time a Democrat serves two terms, God forbid.
So that means that Thomas is now going to have to make some decisions because you've got four votes on the Supreme Court that are solidly originalist, maybe if you count Kavanaugh, and then you got Roberts, who's kind of a swing vote.
If Thomas goes and he's replaced by somebody on the left, well, that means that you've now got five solid leftist votes to do anything that they want to do.
So all the people on the right who are saying, well, we're going to rule the court for a generation, Not quite so fast.
Not quite so fast, right?
Depends what Clarence Thomas does, because Clarence Thomas is right at that weird age where he's still got probably five to ten years in him, but at the same time, you never know, right?
Justice Scalia died prematurely at 76, so you never know.
And the court has become sort of this ghoulish death watch with regard to all this sort of stuff.
You know, we'll see how Kavanaugh rules.
I don't think that Kavanaugh is going to be the gung-ho Gorsuch figure that so many people wanted.
But is it a win for President Trump?
Certainly a political win for President Trump, because Kavanaugh is widely respected.
He's somebody who's going to pass through pretty easily.
He's more reminiscent of Justice Roberts than he is of Clarence Thomas in this respect.
The Democrats, who are going nuts over this whole thing, are demonstrating just how radical they are.
Now, the Democrats didn't even wait to attack.
That's the part of this that's hilarious.
So Mitch McConnell, yesterday, came out before Trump had picked Kavanaugh.
And he said, in his inimitably boring fashion, that Democrats are going to attack no matter what.
He's of course right.
But decades later, our Democratic colleagues still haven't tired of crying wolf whenever a Republican president nominates anyone, anyone, to the Supreme Court.
Tonight, President Trump will announce his nominee to fill the current Supreme Court vacancy.
We don't know who he will name.
But we already know exactly what unfair tactics the nominee will face.
And the left is already jumping into unfair tactics with regard to Kavanaugh.
Cocaine Mitch, exactly on point right there.
The fact is that they've already started accusing Kavanaugh of wanting to prevent Trump's impeachment.
There's no legal basis for this.
Number one, if Trump's impeached by a Congress, he's going to stay impeached.
Number two, all Kavanaugh said is that in 2009, Congress should pass a law preventing the active prosecution of the president while he's in office.
Because the impeachment process is the way that the president ought to be impeached.
It shouldn't be done through legal means, basically.
Through suing the president or through a prosecution of the president.
But that's not a Supreme Court issue.
And they're also going after Kavanaugh for his involvement in the Ken Starr case.
There's a piece from a David Brock book.
You can't believe David Brock on anything.
David Brock, of course, is a liar who worked for sort of Republican constituencies until he flipped and started working for Hillary Clinton.
He suggested that at one point in the late 90s, Brett Kavanaugh mailed the word, bitch, about Hillary Clinton.
If that's a reason to, if that's a reason to bar somebody from the Supreme Court, there won't be a judge left in America.
I mean, seriously, that's ridiculous stuff.
But this is the level to which the left has sunk on all this.
And you knew the left was going to go nuts no matter what.
So Jimmy Kimmel, of course, he didn't know who was going to be picked, and he films before the pick.
So he suggested that Trump was going to pick Voldemort, because no matter who Trump's pick, it had to be evil.
In fact, it turns out to be a Catholic father of two who volunteers at a soup kitchen.
But he's actually Voldemort.
None of the experts predicted this.
Today, I'm keeping another promise to the American people.
by nominating Lord Voldemort to the United States Supreme Court.
So was that a surprise?
Yeah, that was actually a surprise, I will give you that.
Okay, so, yeah, there it is.
Anybody that Trump nominates is gonna be Voldemort.
Ron Perlman, who is just an idiot and was also a terrible bike gang leader on Sons of Anarchy, just really didn't fulfill his responsibilities on that show.
In any case, he tweeted out, Okay, ladies and gentlemen who care for and respect ladies, it is official.
The move back to medieval values, Sharia law even, where old, bitter men get to tell women what is best for their bodies lives and well-being is as done a deal as this is Twitter.
Unless we say no!
No!
Those are all caps, the no and the no.
So, a few problems with this tweet, besides the fact that we're reading a Ron Perlman tweet on air.
So, there are a few problems.
Number one, under Sharia law, he would be jailed for this tweet, I assume.
Second of all, I love it when people say things like, bitter old men are going to decide what women get to do with their bodies.
Roe v. Wade was decided 7-2.
The seven who voted in favor of Roe v. Wade were all men.
So there's that.
And then also, I like when he says that women's bodies are going to be controlled.
You see all these idiots who are walking around in the red cloak and the potato chip hat and the bonnet from Hadmaid's Tale.
And I really think that I'm going to go into business.
I need to go into business.
I want a government contract to be the sole provider of red cloaks and bonnets.
For the rest of this term and hopefully for the next term as well.
I think if I get a monopoly on that, I could become very wealthy indeed.
And, you know, I may as well make this into a capitalistic enterprise as well as an evil patriarchal one, if we're going to go this far.
I also love when Ron Perlman says, all this is going to happen unless we say, no, no!
Well, guess what, Ron?
You just said no, no.
It's going to happen anyway, because bah ha ha ha ha ha ha!
OK, that's why.
Because you lose.
OK, you lose.
Trump drinks your milkshake.
That's what just happened right there.
And the entire left cannot accept any of this.
I mean, no, no.
Millions will die.
Terry McAuliffe, former governor of Virginia.
Who now wants to run for president of the United States after being Hillary Clinton's water boy for most of his career.
He tweeted out the nomination of Judge Brett Kavanaugh will threaten the lives of millions of Americans for decades to come and will morph our Supreme Court into a political arm of the right wing Republican Party.
And I woke up this morning and I was driving around and I thought for a second Terry McAuliffe was right because there was no one on the roads.
I thought maybe everybody had been raptured and they left me behind.
And then it turns out it was just like 4.45 in the morning because I was on Fox & Friends.
So it wasn't that.
But I have been told that I'm going to die because of the Paris Accords.
I survived.
I have a t-shirt that says this.
I survived the renegotiation of the Paris Accords.
I survived net neutrality.
I mean, look at me, man.
I survived the tax cuts.
I survived.
I survived night one of the Kavanaugh-calypse.
I survived night one, this purge-like state in which we all live, where a D.C.
white-shoe lawyer went to Harvard Law School and has worked with a bunch of lefties on the court for years and years and years.
I survived it, and you did too.
It's just the most hardy of us, just the bravest of us.
So I don't know whether I've just developed an immunity to all of these horrible things happening in our country because I've been working out or something and really taking my meds, or maybe it's that the left has completely lost their mind on all of this stupid garbage.
But it's, whatever it is, really, you're gonna get exercise over Brett Kavanaugh?
Like, I get it, honestly, I understood when the left was getting all mad about Charlottesville, I got it, because I think that Trump was wrong about Charlottesville, but when they go, like, nuts over a guy who was endorsed by Akhil Reed Amar in the pages of the New York Times, Akhil Reed Amar is a left-wing legal scholar from Yale, Give me a break.
Just give me a freaking break.
We'll get to more of Left Wing Reaction in just a second.
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So Senator Chuck Schumer says that it's all at stake.
We're all going to die.
This is Chuck Schumer's routine.
Now, what's hilarious about this is that Chuck Schumer, as you'll recall, tried to filibuster Neil Gorsuch because that was going to end the world, too.
That failed.
And now he's going to try and filibuster and fail Brett Kavanaugh.
That's going to fail, too.
Here is Chuck Schumer saying the freedom of women is at stake.
Women are about to be arrested.
They're about to be made handmaidens.
They're about to be enslaved.
Like, really?
Are they?
Because, weird, I'm not seeing any of those things happening.
But here's Chuck Schumer.
Everyone ought to understand what it means for the freedom of women to make their own health care decisions and for the protection for Americans with pre-existing conditions.
Those rights will be gravely threatened.
Gravely threatened by the fact that people can vote on them.
Ooh.
Ooh, people might vote.
Better not have that.
Let's get some justices on there who will ensure that we can never vote on any of the crucial issues of our time.
And then Schumer says, in precise contravention of what Trump said about personal views on the judiciary, Trump had said, I don't care about personal views.
I care about enforcement of the Constitution.
Schumer says, we need to know your personal views.
Your personal views are all that matters.
And this is because the left believes the personal is political.
They believe that any opinion you hold as a judge actually comes out in how you rule.
So if you're anti-abortion, But you believe Roe v. Wade is rightly decided, it matters more that you're personally anti-abortion.
This is nonsensical, of course, and the left doesn't even believe that.
What they really want is a guarantee that the right is not going to rule according to the Constitution.
They're not going to get that guarantee.
The left was so all-fired angry over this, preemptively.
So, protesters arrived early last night at the Supreme Court.
Trump had not even appointed his guy.
They were out there protesting, and they didn't know who had been appointed yet.
Okay, here's some audio of them making fools of themselves.
And then the weird, and there's always that one weird guy who's got like the anti-circumcision sign, which is like, I didn't even realize that was something being appealed to the Supreme Court.
That's that's good to know.
Good to know that the chop chop is definitely going to be is going to be at the tip of everybody's mind.
I'm just I'm I'm so confused.
But the left is now so they've done denial.
Now they are in the middle of anger.
So anger involves conspiratorial thinking.
So Cory Booker, who is just a wild man, Cory Booker, the senator from New Jersey and the man with a fictional best friend who is a gang member.
So Cory Booker, he says that Trump is choosing Brett Kavanaugh not because Brett Kavanaugh is a well-established legal mind inside the D.C.
Beltway and was pushed by Leonard Leo and Don McGahn, the White House counsel.
No, the reason That Trump is choosing Brett Kavanaugh is because Brett Kavanaugh is going to help Trump avoid impeachment by, what, hijacking the marshal of the U.S.
Supreme Court and arresting Cory Booker?
Or Brett Kavanaugh actually is Voldemort and he's going to take out his magic wand and lose his nose and somehow save President Trump?
Here's Cory Booker being a complete whack job.
He has a lot of other legal trouble, and the challenges that this president could have caused for himself, now he's got that insurance policy.
He's got this get-out-of-jail-free card, if you will.
Brett Kavanaugh has to get out of jail.
What's their legal theory?
Is that there's an impeachment hearing?
Trump gets impeached and it goes to the Supreme Court and the Supreme Court overrules that because of Kavanaugh?
Yeah, that's going to happen.
Or is his legal theory that Mueller will come down with an indictment and then Kavanaugh will rule and no indictment can move forward?
Except that there aren't the votes on the Supreme Court for that, and Kavanaugh doesn't even agree with that.
And the piece that he wrote in 2009 about prosecution of presidents suggested that Congress should make a law protecting the president, not that the judiciary could protect the president from such prosecution.
But never mind, the conspiracies have to rule.
So Blumenthal, Richard Blumenthal, the senator from Connecticut, he says the same thing, right?
Trump is going to let the next justice pardon himself.
Rudy Giuliani raising the possibility of a pardon.
This next justice will sit on the issue of whether or not the president can pardon himself or others.
Okay, so it's going to be that Trump's going to pardon himself and Kavanaugh will uphold this stuff.
The conspiracy theories from the left are just out of control.
My favorite conspiracy theory is this one from Neera Tanden.
Neera Tanden is one of the foolish leaders of the Women's March and the head of the Center for American Progress.
And she tweeted out, Justice Kennedy's son made a billion dollars in loans to Trump from the Russia-infested and sanctioned Deutsche Bank.
So now I'm not even I'm so confused about what this conspiracy theory even is.
The conspiracy theory is that Justice Kennedy's son made a loan to Trump and therefore Trump leveraged Kennedy into leaving so that he could bring on Brett Kavanaugh.
When I loan you money, you don't then get to leverage me into anything because I loaned you the money.
And also, if I were going to loan you money and then you were going to exercise leverage over me, wouldn't the leverage mostly involve you telling me how to decide cases, not to resign?
Why would you give up that?
None of this makes any sense, but the left is not interested in making sense.
They're interested in screaming as loudly as possible at the moon, convinced that in doing so, they will somehow transform themselves into werewolves, and thereby bring about the thwarting of the Kavanachalypse.
So, it's all insanity.
Meanwhile, to show how extreme the left is, Michelle Wolf continues to make a fool of herself.
So this, of course, is the comedian from Netflix.
Alleged comedian, I should say, because I don't want to be sued for libel by calling her a comedian.
I don't think that she fits the bill.
So Michelle Wolf, the only person in America with a more annoying voice than mine, she goes on Netflix and she's talking about abortion.
Remember, she already said abortion was a sacrament yesterday.
She said, God bless abortion.
Now she says that abortion is not killing a baby.
Don't you understand?
Abortion doesn't kill babies.
Abortion merely stops a baby from happening.
Access to abortion is good and important.
Some people say abortion is killing a baby.
It's not.
It's stopping a baby from happening.
Okay, some people say that Michelle Wolf is killing comedy.
She's not.
She's just stopping comedy from happening.
She's prematurely terminating comedy.
That comedy was never alive, that comedy.
It was just a cluster of words before.
And she got rid of it before it could ever form itself into an actual joke.
She actually just terminated the joke a little bit early to prevent it from ever taking full form.
And you can't really accuse her of killing the joke, per se.
She really just stopped the formation of the joke.
Now, you may say, Michelle Wolf, why weren't you just abstinent from comedy?
Why didn't you just use a little bit of protection?
Why did you wait until the joke started to be formed before you carved it apart in the womb and flushed it down a toilet?
Why didn't you just do that?
But that would be patriarchal to suggest that you are in control of Michelle Wolf's comedic decisions.
Michelle Wolf gets to be as promiscuous with comedy as she could possibly want to be, and then she gets to terminate the results of that comedy before it forms into comedy, because after all, it's just the same as a polyp.
It's basically the same as any other sentence, that comedic joke.
OK, so Michelle Wolf, but she is indicative of a mindset that is set in among people on the left, which is that abortion is the ultimate good.
And that's why they're so mad today.
The reason they're so mad today is because for folks on the left, abortion has taken on an actual morally positive hue.
It's not just that abortion is something we need in cases of something going wrong.
It's something we need in terrible, horrible cases.
That's an old fashioned argument.
You know, there used to be people who argued that abortion It was necessary because of rape and incest, right?
This was always the argument that was used.
Now, as a pro-life person, I don't believe that rape and incest are actually an excuse for an abortion.
I believe that rape ought to be punishable by castration, death, life imprisonment.
And I believe that incest ought to be punishable by force of law.
But that doesn't mean that you get to actually kill a baby because the creation of the baby was something horrible and evil.
That said, it used to be the left used those as the excuses.
They said, well, you know, there are really hard moral situations where you have to make compromises.
Now, the left says, if you have not had an abortion, then you are doing something wrong.
You are living by the stereotype that you ought to be pregnant.
And by doing so, you are reinforcing the patriarchy.
It's men making decisions over your body.
The best kind of woman, the most empowered kind of woman, is the woman who's had an abortion.
The woman who's had an abortion is better, a better version of the woman, than the woman who's never had an abortion.
Because the woman who's never had an abortion, you know, she really has not accepted that her body is under her own control.
It's a sign of female empowerment, just the same way that the left has decided that women who participate in pornography or prostitutes are actually avatars of female empowerment because they are empowered with their own body.
Well, being pregnant and then killing the baby, that is another way of feeling proud of your own body, because after all, the baby is not an independent human being.
That's just a part of your body.
And so when you kill it, you're not actually killing it.
You're just stopping it from happening.
And I love the euphemisms the left uses.
Stopping it from happening.
OJ Simpson didn't kill Nicole Brown Simpson.
He just stopped her from happening.
He just stopped her.
I mean, she was there and then she wasn't, but it was mostly that she was happening and then suddenly she just stopped happening.
It was the thing that wasn't happening anymore was Nicole Brown.
It's just the levels of lie that the left will tell about abortion in order to maintain it as a sacrament are truly astonishing.
And that's why when I see people, you know, on the right who continue to maintain that the right should not engage in this particular battle, I say, This may be the only important moral battle that's going to matter a thousand years from now.
A thousand years from now, people aren't going to care about what the tax rate was in the United States in 2018.
A thousand years from now, people are not truly going to care very much about environmental policy in the United States and the minor differentiations between CAFE standards.
What people are definitely going to care about is whether we as a society decided to greenlight and not only greenlight, celebrate the murder of the unborn.
And this is why I think that I wish Kavanaugh would overrule Roe v. Wade.
I think that we're going to move in the direction of curbing Roe v. Wade, which is better than nothing.
But I think it would be better if we just got rid of it and stopped killing 3,500 babies a day in the United States.
It seems to me that that should have been the end goal here.
I hope that Kavanaugh proves me wrong.
Maybe he will.
We'll find out.
OK, time for some things I like and then some things that I hate.
Things that I like today.
Speaking of the Supreme Court, William Rehnquist was Chief Justice of the Supreme Court until Justice John Roberts was appointed back in 2005.
He wrote, this is the first book I ever read on the Supreme Court.
I actually bought it at the Supreme Court.
It's called The Supreme Court by William Rehnquist.
And it is a good guide to how everything works at the Supreme Court.
It also has some good content on the history of the Supreme Court and what it's like to work at the Supreme Court.
And it's a really good kind of primer for anybody who's interested in the basics of how the Supreme Court operates.
Rehnquist himself was an interesting judge.
He wasn't an originalist.
He wasn't really a textualist.
He was more of a conservative.
You were going to say that he was politically oriented and sort of law and order conservative who believed that all of the attempts to undermine law and order via liberal interpretation of the Constitution were misguided.
He tended to vote consistently, you know, with conservative positions on the court, but his opinions were never Scalia or Thomas rooted in the history and context of the Constitution per se.
But he did move the court in a more conservative direction.
I think that if you were going to find a somebody who you're going to liken to Kavanaugh, I think the Rehnquist is probably the best comp.
In baseball or basketball, you say, OK, you have a draft pick.
Who does that draft pick?
Well, when it comes to Justice Roberts, I said that he was going to pencil out a lot more like Souter.
He penciled out somewhere between Souter and Rehnquist.
I think that the chances are pretty good that Kavanaugh ends up as a Rehnquist figure, which is something conservatives should be happy with.
I wouldn't say ecstatic about.
Oh, one more thing that I like.
I don't know why it is that Colton has decided to bring me a weird story today, but he's decided to bring me a weird story every day.
This is a story from WNGO ABC in New Orleans.
Renard Matthews was killed in New Orleans two weeks ago.
He was young, 18 years old, and while the tragedy of losing him so young weighs heavily on his family, they chose to have his body prepared for Sunday's afternoon's wake in a way that they want to remember him.
At the Charbonnet-Labott-Glapion funeral home in Treme, Matthews was sitting in a chair, video game controller in hand, surrounded by his favorite snacks and his beloved Boston Celtics on the television screen.
And if you can't see this, folks, this is literally a dead guy who is sitting in a chair with a game controller on his lap and a box of Chip Crunch beneath his chair and a video of the Golden State Warriors playing the Boston Celtics on television.
And it's a video game.
Is it a video game of the Warriors playing the Celtics?
Well, the Celtics are losing because, presumably, he can't actually move the controller.
So that's a game he's destined to lose right there.
He seems rather unenthusiastic about the game.
Perhaps that is because he is dead.
I will give it to the family.
At least he was posed doing what he loved.
So that's exciting.
It's full weekend at Bernie's over there.
In New Orleans.
And it does make you think, like, if this were Bill Clinton, you probably couldn't pose him in public doing what he loved.
It'd be a real problem.
Just be Bill Clinton with his zipper down holding a cigar and just sitting in a chair and then Hillary, presumably Hillary Clinton, screaming at him, screaming at his corpse.
I mean, imagine the various public figures.
What would you do at Kevin Spacey's funeral?
Just doing what you loved.
Harvey Weinstein's funeral.
I think we should probably not do this.
I think that just as a general rule, societally, we probably should not do this.
We probably should just stick you in a box and leave you there.
Well, it's a move.
It's a move.
I'll give him that.
It's a thing that happened in the United States.
Yep.
And it's gotta be kind of weird because you walk into that funeral and you're like, do I go over and say hello?
Like, do I congratulate him on how the game is going?
And I like that they have velvet ropes that actually block off the crowd from the body to make sure that people don't go there and like repose him.
They're going to go there and put his hand on his crotch or something.
Or they're going to put a pom-pom in his hand because he's rooting for the team.
Yeah, this seems like not a great thing.
Okay, so time for some things that I hate.
The thing that I hate today is the Louvre.
The Louvre, what are you doing?
Okay, first of all, you're a barn.
Second of all, I don't understand why it is that you are paying homage to Jay-Z and Beyonce.
So, a couple of weeks ago, I did a Deconstructing the Culture, in which I went through the ape bleep video.
Ape crap video, ape poop video, right?
Because it's apesh video.
Okay, so, we went through that a couple of weeks ago, because it's ridiculous.
Rolling Stone did a whole analysis of why Beyonce thrashing about in her undergarments in the middle of the Louvre somehow outclasses the work of Leonardo da Vinci and how Western art had been completely put to shame by Jay-Z standing there like a catatonic idiot while his wife Flounces about in these giant drapes that look like they were bought at the Bed Bath & Beyond from next door.
Right, so it's a really bad music video.
The Louvre has decided that they are going to actually now do a tour of the Louvre based on a video called Ape Poop.
About, have you ever heard a crowd going ape poop?
And a bunch of half-naked people doing gyrating motions in front of great art.
The Louvre.
You suck.
So here is the New York Post.
Here's what they say.
say everything is love between the carters and the louvre beyonce and jay-z's ape leap video has racked up 61 million views and counting in just the past three weeks because in large part because the music video showing the power couple dancing among masterpieces such as da vinci's mona lisa and the venus de milo in the parisian fine arts museum is a visual feast a visual feast really More like a visual Last Supper.
Because afterward, somebody is going to get it.
Now the Lube is capitalizing on its new street cred by offering a free self-guided tour of 17 paintings and statues featured prominently in the first video off of the Carter's new album, Everything is Love.
Including the Winged Victory of Samothrace statue that Beyoncé vogues in front of while wearing a $140,000 Stéphane Rolland wedding dress.
That sucker cost $140,000?
I have a question.
These are the people of the people?
Is this what the people want?
The lady thrashing about in front of Winged Victory of Samothrace wearing a $140,000 wedding dress?
She's already been married for several years.
You couldn't have given that to charity and just gone to the Salvation Army and picked up a tablecloth lady?
My goodness.
And apparently also Marie Benoist's Portrait of a Negress.
The 90-minute self-guided audio tour, J'ai dit et bien c'est en Louvre, is currently only in French, but other languages will eventually be available.
Or you can translate the tour in your internet browser using plugins like Chrome's Translate feature.
The guide identifies each work of art and gives its historical context.
Well, I'm sure that Jay-Z and Beyonce knew the full historical context, and I'm sure that when they were screaming about going ape-leep amongst the half-nude bodies gyrating in front of these paintings, they were really thinking about, how can I get more tourists to see the winged victory of Samothrace?
By the way, Forget, like, a hundred years.
In five minutes, when no one cares about this video, that statue will still be there, because that's what statues are made for.
Permanence, and it's an amazing piece of art.
The Louvre wasn't hurting for attention.
Eight million people visited the world-class cultural institution last year.
One million of them came from the US.
More than half were under the age of 30.
But the Carters are one of the world's most powerful couples, says the New York Post.
With a $1.6 billion combined net worth last year, So why can't they afford better clothes?
I mean, they spent $140,000.
I'm not gonna get over the fact that that dress cost $140,000.
I'm just not.
It looks like she was swamped by an opaque jellyfish.
Beyoncé boasts more than 113 million Instagram followers, and one social media post from her is worth $1 million in advertising because everything is not love.
Everything is stupid.
So their celebrity endorsement inspires their fans who haven't crossed the Atlantic to consider making the trek to the Louvre.
And the video also showcases works of art apart from the Mona Lisa, which those who have visited the museum already may have missed, so this can encourage them to return.
Syracuse University professor and pop culture expert Robert Thompson told Moneyish, Beyonce and Jay-Z have essentially become backdoor curators of one of the world's greatest art collections because they've taken those 17 works and suddenly escalated them to the top.
Yeah.
It turns out that eight million people a year saw those things, because they're in the world's most famous museum.
Yeah, it turns out that 8 million people a year saw those things because they're in the world's most famous museum.
Yeah, the Louvre's 17 must-see pieces are now the ones that they chose, their own greatest hits.
Mark.
I want more idiot millennials taking selfies in their sunglasses while gyrating in front of great statues.
That's what Western art is all about.
It's a massive tourist attraction.
Now it is an Instagram attraction for all pop culture junkies.
Great.
I want more idiot millennials taking selfies in their sunglasses while gyrating in front of great statues.
That's what Western art is all about.
It says, The Carters are the new fromers.
That would be the series of guidebooks.
With their songs acting as travel guides to must-see cultural experiences.
Well, technically, it's not a song acting as a travel guide.
It's more the music video.
The song itself acts only as a travel guide to actual ape crap.
So there's that.
And they are apparently making the museum accessible to a wider audience, because no one had heard of the Louvre before.
They've made it accessible.
It says the Carters could potentially bring in a whole new audience of people.
By the way, I don't know that...
That would actually be what the Carters intended, considering that I thought, according to Rolling Stone, the whole thing was supposed to be mocking the insularity and archaic nature of Western art.
That all this Western art was based on white people, but here are brown and black bodies in front of the art, and therefore drawing a contrast between the live bodies and the dead portrayals of those bodies on the walls of the Louvre.
That was Rolling Stone's take, so I guess this is a different take, which is that apparently Beyonce and Gigi love Western art.
The Louvre has benefited from star power before.
Of course, it was featured in the Da Vinci Code.
And of course, it was in Night at the Museum.
Museum of Natural History was in Night at the Museum.
Right.
The difference is that none of it was really about, like, mocking the art itself.
The Brooklyn Museum is in the middle of a David Bowie is exhibit of an exhibition of 400 objects, including 60 custom-made performance costumes, handwritten lyric sheets and drawings from the late music icon's personal archive.
Okay.
I guess all advance tickets are sold out.
Like, people have nothing to do.
I think this is the conclusion I've come to.
People have nothing to do.
You gotta go see David Bowie's costumes.
You know what?
Honey, I've got nothing to do.
It's a Sunday morning.
Let's go see David Bowie's costumes.
OK.
Or I could shoot myself in the face.
I mean, what?
OK.
OK.
I get it.
Some of you are David Bowie fans.
All right.
All I'm saying is that the attempt to turn great art into a backdrop for bad art and then use that bad art as, oh, look at them.
They're patrons of the arts.
Oh, Louvre.
Louvre.
Ah, the French.
What can you do with them?
All right.
We'll be back here tomorrow with all the latest.
I'm Ben Shapiro.
This is The Ben Shapiro Show.
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