HH: That music means it’s time for the Hillsdale Dialogue. The reason I’m slow in introducing Dr. Larry Arnn is I’m involved in a Twitter exchange with Congressman Justin Amash, I’m not sure. Isn’t he one of yours, Dr. Larry Arnn?
LA: He’s a Michigan guy, yeah.
HH: Yeah, and so I’m, earlier today, I pointed out that later today, House Republicans face a choice. They can vote with the President, the Vice President, the Speaker and the Leader of the House, or they can vote with Nancy Pelosi. And libertarians, like Justin Amash, are upset with that. And I said look, it’s just the Constitutional form. You can’t move a bill to the Senate without a majority, and Justin Amash tweets at me, I certainly don’t find emotional and irrational arguments like yours persuasive. My job is to represent the people, not play partisan games. Is it in fact emotional and irrational, President Arnn, to appeal to the Constitutional forms?
LA: (laughing) Well, that’s a strange reply. Let’s just say that.
HH: It is a very strange reply, but I’m calling some of our friends, and many of them are my friends in the Freedom Caucus, so it is not a 100%…but they’re the Area 51 Republicans. I mean, I don’t get how you don’t send this to the Senate. Even if you don’t like it, it may die there, or it may come back improved. But it is the reconciliation rules. What is your advice? You’re friends with everybody. Hillsdale is friends with everyone, from the most conservative member of the Republican Caucus to the most liberal member. And indeed, you’re friends with Democrats. What’s your advice, at this point?
LA: Well, I think I’m going to be friends with everybody for about two more minutes.
LA: (laughing) You know, I mean, it’s obvious they need to pass a bill.
LA: And they need to pass the best bill they can pass. And you know, the forces that be are there now. We had an election. And so they, you know, what I think they ought to do, by the way, is I think they ought to get rid of the filibuster. I think that’s a high purpose. And I think that would change this situation significantly. But there isn’t anything that can be done about that in the Houses of Representatives. They’re going to have to pass some bill, and then they’re going to have to hope that the Senate will pass some bill, and then the Obamacare can get better. And nobody claims that I know that the current bill is worse than Obamacare. And so you run the risk of letting the best be the enemy of the good.
HH: And can we pause for a moment on something you just said, because you and I hate the filibuster, and you and I do not believe it’s an originalist belief to embrace it. But there is nothing that the House can do about that. Any pressure to bear on the Senate to break it has to be brought on the Senate. But if you follow the Constitutional forms, a bill affecting revenue must originate in the House.
HH: And so they can’t, we can’t actually make the argument about the filibuster until they send a bill about revenue to the [Senate].
LA: That’s it. And you know, the better the bill from the House, it’s true, the better the compromise, if they can get anything through the Senate. And the Senate, you know, attention is going to go to them next. And it’s time for them to perform. And there’s a whole lot of things needing doing, and doing something about Obamacare in a hurry is a good, you know, doing something about it sometime is a good idea.
HH: I just do not, now it may be, I’ve said to people, this could end up being a perfectly executed ballet of negotiations by everyone involved, or it could be a pileup in the Tule Fog, which you and I are familiar with that sometimes descends upon I-5 in California leading to 60-car pileups. I don’t know, but it’s possible. Last night, I was on with Brian Williams, and Brian relayed that the New York Times had a story reporting that four senior White House aides are reporting that President Trump is upset with Speaker Ryan because he’s been led down this path, even as the President and Speaker Ryan were talking for 45 minutes. And I thought that itself might be a negotiating tactic to say to the Charlie Dents and the left wing of the Republican Party do you really want to undermine Paul Ryan and end up with my friend, Jim Jordan, who’s a Freedom Caucus member, as the Speaker? I mean, do they really want to do that?
LA: Yeah, I don’t, yeah, first of all, Trump seems to me, you know, he’s a pretty artful guy, right? I mean, he said, for example, that outrageous thing that the Obama White House had tapped his phones. And of course, we all know there’s no evidence whatsoever for that. And it was proved last week there was no evidence when James Comey said that the FBI, under the Obama administration, had been investigating Donald Trump since sometime shortly after the election, right? And so, and then he went on, so they’re investigating him, but then he went on to say he had no information that there’d been any surveillance. How were they investigating him without surveillance?
HH: It is, to me, the most interesting, I’m laying way off this story, because I know what I don’t know, and I haven’t had a classification since 1989, but Devin Nunes is a smart man.
HH: And he does not walk down to the White House and say I’ve got something here that is important for me to tell the President about unless he’s got something to tell the President. And my friend, Adam Schiff, who is a Democrat, but with whom I am cordial, is really overselling his outrage. A lot of Democrats are overselling their outrage. So I think they want to shift the storyline back to that which cannot be proven away from whatever Devin Nunes is supposed to come up with, and I have no idea what’s going on. And nobody does who doesn’t have a classification.
LA: Yeah, and I just think Trump is just, he’s very, he gets up in the morning every morning, it seems to me like, ready to fight. And so enough of this, he thinks. My own little opinions, for what they’re worth, and they’re not worth much, about what you’d do about Obamacare, is I like the tactic that a few people have suggested of doing a catastrophic health insurance policy that’s means tested, so everybody’s got that. And that’s how you do universal health care. And then expand the health savings accounts. Do that. And then local, you know, the welfare payments, when somebody can’t afford ordinary health care, you know, well the point is just do that and don’t put everybody on Medicaid. Instead, let them go buy it with their catastrophic health insurance policy and their health savings account. Anyway, it looks to me like the thing should be simplified, and that would be a revolution.
LA: And there are reasons why they’re not going around about it that way, and I wish they would, but I don’t even know what the, because this, too, is infinitely complex, and you can’t just pass a bill. There’s no prospect unless Leader McConnell will say he is going to return the filibuster to its age-old meaning, which is that anybody who’s got something to say gets to talk, but about pertinent to the issue. But when we run out of that, then we’re going to vote. If they ran the Senate that way, which is how they’ve run it for most of their history, then you could design a really great bill between the leadership of the House and the Senate and the White House, and you could pass the darn thing through.
HH: Although I have to say I’m not sure about that. A) I hope he would do that. But B) I’m not sure they would pass it through, because there are only, every Democrat would be against it, and there are only 52 Republicans. And among those 52 Republicans are at least three, I am afraid, who would derail any really good bill. So I am back to the art of the possible. I’m thinking of, and perhaps you know this story better than I, of Hamilton and Jefferson meeting when one was oppressed by the prospect of the national debt being unresolved, and the other wanted the Capitol in Virginia. And they executed the first great compromise, right?
LA: Yeah. Yeah, and that’s, and see, that’s, you know, one of my wise friends and yours, Tom McClintock, you know, who used to work for me and wasn’t worth a flip, but gosh, he’s a good Congressman, he is the one who taught me about the filibuster. But he’s also the one who taught me about the reconciliation process and how it’s supposed to work. And it’s shocking how seldom we do that.
LA: But if you can just get a bill that’s got any good features at all in it through both the House and the Senate, then the reconciliation process exists to reconcile them. And what they do, according to Tom, is they take the elements that are common to both bills, and then they add new things in that didn’t pass both houses to the minimum extent necessary to make a functioning law. And then that passes both houses. And we should get there.
HH: And it begins, we’re going to talk about Judge Gorsuch after the break, but it begins with a bill. And I trust the Speaker, the Vice President, the President and the Leader on this. Get the train out of the station, or it will never go anywhere. Last thought on this, 30 second, Dr. Arnn.
LA: Yeah, that, you know, mostly, there’s a lot of really good positive stuff we should be doing, like a whacking, big tax cut, they say. They should get on with that, too.
HH: Thank you, my friend. We’ll come right back.
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HH: Before I go to Judge Gorsuch, Dr. Arnn, you are married to a fine woman, Penny, who is an English woman. And England was set upon this week, and I have been out of that underground Tube across from the Palace of Winchester many times, and I’ve walked that bridge many times, but not nearly as many times as I suspect you have, and certainly Penny. What were your reactions this week to yet another attack on the home of our common law?
LA: Well, that’s, you know, one of the prettiest places in the world. If you cross that bridge from the south bank of the Thames and turn to the right, then you go along a street, and so on your left, then, is Big Ben. And you go along a street called Whitehall past 10 Downing Street into Trafalgar Square, it’s one of the most historic and beautiful places on Earth.
LA: And one of the great political scenes produced by any people in the modern world. So of course, it’s terrible. You know, right there where the man was shot is close to the opening of the underground parking garage where members of the Parliament park. And it’s a steep ramp. And so back early in Margaret Thatcher’s days in 1980, if I remember the year right, her very dear and old friend, Airey Neave, who was a war hero, and who was the minister for Northern Ireland, they got a bomb in his car with a mercury switch that would go off when the car was at that angle. And they killed him right there in that tunnel coming out of the House of Commons. And that was more upsetting to her than the bomb that later nearly killed her in a hotel down on the south coast of Britain. So that part of the world has been, in recent decades, a target, and they keep hitting it. And I thought Theresa May’s remarks after it were very good.
HH: I wore my Churchill tie on NBC and MSNBC yesterday as a gesture of solidarity, but I thought she was as resolute as Margaret Thatcher after the Brighton Beach bombing, and as our mutual hero, Churchill, was after many assaults on Parliament, including the one that leveled it. What did he do after Parliament was leveled?
LA: Well, that’s, you know, they moved, of course, and had to operate for three years, I think, somewhere else nearby. But he gave this wonderful speech, and everybody should read this speech. My daughter is about to finish architecture school, and she’s getting job offers right now, so all this, this subject is on my mind. Churchill gave a speech called a Sense of Crowd and Urgency. And he describes, you see, we’ve just been talking about politics in the Congress, and it’s exciting what they’re doing and important what they’re doing, right? Churchill says the features of the House of Commons that matter the most are two. The first is it’s a rectangle, and one party sits on one side of the government, and on the right hand side as you face the Speaker sits the opposition. And they face each other. And so they’re arguing to each other. They’re talking to each other. And the second is there aren’t enough seats. And that means that there’s always a sense of crowd and urgency. When there’s a big thing going on, for example, typically when Winston Churchill was giving a speech, word passes around, and they all come streaming in. And so that makes, that means that what they say in there seems important as it is important. And you know, we don’t have that in America, and it’s too bad. It would be better if we contracted the House of Representatives, and if we, you know, if we got the government back within bounds again so that everything is not done in committees…
HH: Or by agencies.
LA: Yeah, that’s right. Then the big laws, you know, Congress passes, you know, a hundred laws, two hundred laws a year. Well, that’s about how many it’s always passed. And what if thirty of those, one a week, was important? And what if they all got in there and we, and you were playing clips from things that were said on the floor, right? That would be what the House of Commons is like, and Churchill understood that.
HH: I’ll be right back with Dr. Larry Arnn. We continue then talking about Neil Gorsuch when we return. Stay tuned.
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HH: And it is time for us to talk about Judge Gorsuch. In this context, Dr. Larry Arnn, Antonin Scalia’s hearings were in August of 1986. He was confirmed in September of 1986. No matter what happens in the House today, or in Washington, D.C. in the next month, the Republicans and the Constitution have won a huge victory this week, because they had an able representative of its original approach and understanding of it talk about that for two straight days, and utterly embarrass the opponents of that approach.
LA: Yeah, he was, he’s witty and a gentleman, and clear. That’s not fair.
HH: (laughing) I was just drinking coffee.
HH: Don’t do that. And let me play you an example. This is my favorite moment of the hearings. It involves Al Franken, bad comedian, and Judge, soon-to-be Justice Gorsuch, legal scholar. Here is Al Franken.
AF: But the plain meaning rule has an exception. When using the plain meaning rule would create an absurd result, courts should depart from the plain meaning. It is absurd to say this company is in its rights to fire him because he made the choice of possibly dying from freezing to death or causing other people to die possibly by driving an unsafe vehicle. That’s absurd.
HH: All right, and then after some more theatrics, the Judge is allowed to answer, and he responds thusly.
NG: There are a couple of things in response to that, if I might. Going back, the absurdity doctrine argument was never presented to the court. And it usually applies in cases where there’s a scrivener’s error, not when we just disagree with the policy of the statute. So I appreciate the opportunity to respond there.
AF: When there’s a scribner there?
NG: Scrivener’s error.
NG: Error, yeah.
AF: Okay, I’m sorry.
HH: (laughing) And so Larry Arnn, in that exchange, Al Franken, not a lawyer, gets on a high horse about a doctrine he does not understand, and then his rebuke subtly, but graciously, by a judge, who then also refuses to bring the hammer down on the fact that he had no clue what a scrivener’s error means.
LA: I was excited. I can remember Justice Thomas’ confirmation hearings where he was, to my impression, laboring not to embarrass the justices.
HH: You mean the senators?
LA: I mean the Senators, right?
LA: And they would say things like where’d you get this odd idea of the natural law, right? Well, it’s in the first sentence of the Declaration of Independence.
LA: (laughing) And he didn’t say that, right? And this guy, you know, he can’t lay a glove on him. Also, it takes Al Franken a long time not to lay a glove on him.
HH: Oh, it went on, and there were many times, and I explained to my law students, I watched every minute of the hearings except when I departed to teach the Takings Clause for an hour and a half, and then when I departed to teach the Free Exercise Clause for an hour. And there were many times when Judge Gorsuch didn’t, that he took dumb senators by the hand and led them out of the corners into which they had painted themselves with great graciousness. I was, I am so enthusiastic about this fellow, and he’s going to be confirmed, and I’m even more happy that we’re going to have to use the Reid Rule to confirm him.
LA: So that’s, I have questions about that. I was reading the news this morning, and Bob Casey of Pennsylvania, according to the Washington Post, not the best source, maybe, but they say that Casey from Pennsylvania, which Trump carried, has agreed to join a filibuster.
LA: And so that’s like nuclear weapons, you know. No Supreme Court judge, justice nominee, has ever been filibustered, I don’t think.
HH: Well, there was one filibuster in 1968 when Abe Fortas was, had been nominated. Earl Warren stepped down early in an attempt to replace himself with a Johnson appointment. Johnson appointed Abe Fortas. It was discovered that Fortas was corrupt, and Republicans and Democrats both filibustered him in order to produce the evidence which led to his resignation.
HH: But that was a bipartisan delay in the old form of which you have referred.
LA: Yeah, okay, so thank you. Good. And that means that they had, and see, the Reid Rule, which is what Reid contrived to break the filibuster for lower court nominees, would then be applied to the Supreme Court for the first time.
HH: Yes, yes.
LA: And I’m a little mystified why the Democrats would want that.
HH: It makes no sense at all.
LA: And I’m a little mystified about Casey, and what is that telling us? I guess Casey was, when it Casey up again?
HH: He is up in two years. He is up in November of ’18. And so is Sherrod Brown, and so are 25 Democrats as opposed to 8 Republicans. And they are being pushed by their radical, progressive base.
LA: There you go. Yeah.
HH: …to go further to the left, even to the point of self-destruction. People think the Republicans are having a bad week, and in fact, the Democrats are going Thelma and Louise.
LA: I, you know, especially if Trump, if there’s evidence that they actually did wiretap Trump’s telephone before he, after he was elected and before he was inaugurated, if that comes out, and there’s all these rumors about that, and it’s implied by Comey this week in his testimony, if all that comes out, Trump has laid a trap for a bunch of people.
HH: I do not believe they will find evidence of a wiretap of his telephone, largely because the technology has been abandoned for years. But I do believe they may find surveillance of Trump Tower of the sort that was manipulated wrongly by political operatives in order to lay traps for a president they did not anticipate, and therefore maybe rushed quickly into very ill-advised decisions about how to cripple him.
LA: Yeah, there you go, and so thank you for the correction, because yeah, there are no wiretaps anymore.
HH: Yeah, you’re dating yourself, Dr. Arnn. Shall we talk about mood rings and pet rocks next?
LA: Yeah, let’s do that. Let’s do that. But see, Gorsuch is so presentable, right? He’s a hoot. I don’t generally advise our listeners to go and read Supreme Court opinions, but go read a couple of his. They’re easy to find. Read the one that’s got Reintz, did I get that spelling right, in it, because in that one, that’s the one where he diagrams an English sentence.
HH: It’s a beautiful thing. Let me play a few of his quotes.
LA: And the English department at Hillsdale loves it.
HH: I want to play three of his quotes, or four of them back to back, get your comment. Cut number one:
NG: You know, the Supreme Court of the United States isn’t final because it’s infallible, as Justice Jackson reminds us. It’s infallible because it’s final. And Judge Wilkinson had his view, and the Supreme Court has spoken. And Heller is the law of the land. And Justice, Judge Wilkinson may disagree with it, and I understand that. And he may, but he will follow the law no less than any other judge in America, I am confident of that. He’s a very fine judge who takes his oath seriously.
HH: Then he spoke about clerking for Whizzer Byron White.
NG: You know, as I said, he really was my childhood hero. And to actually get picked out of the pile to spend a year with him as Senator Lee’s dad did, that’s something we share in common, too, was and remains the privilege of a lifetime. And it has everything to do with why I am here. I wouldn’t have become a judge but from watching his example.
HH: Then he speaks about no man and being, as we know, above the law, cut number three:
PL: Let me ask it a different way. If Congress passed a specific law on surveillance, and if a president said I’m going to violate that law because I’m president, does he have that power?
NG: No man is above the law, Senator.
HH: And then one more with Amy Klobuchar, who is allegedly a lawyer, cut number four:
NG: Senator, a lot of people say a lot of silly things. My grandfather…
PL: Well, that’s more than silly. That’s a, he wants, this congressman wants you on the Court so they can uphold a Muslim ban.
NG: Senator, he has no idea how I’d rule in that case. And Senator, I’m not going to say anything here that would give anybody any idea how I’d rule in any case like that, that could come before the Supreme Court or my court of the 10th Circuit. It would be grossly improper of a judge to do that. It would be a violation of the Separation of Powers and judicial independence if someone sitting at this table, in order to get confirmed, had to make promises or commitments about how they’d rule in a case that’s currently pending and likely to make its way to the Supreme Court.
HH: I have to apologize to Amy Klobuchar. He was responding to Patrick Leahy who was, clearly has gone by his sell date. What did you make of those clips generally, Dr. Arnn?
LA: Well, they’re, you know, first of all, they reveal a deep understanding and a calmness. You know, how really, well, I’ll tell you. The very best teachers are people who achieve a kind of mastery so that things can be put simply, at least at the beginning. And so Gorsuch is like that. Like take his first quote, you know, about how the Supreme Court is infallible because it’s final. Well you know, it’s actually really only final in one particular respect. The case he mentions is Heller, and I think that’s the case about guns in the District of Columbia.
LA: And that means that in the case of prosecuting Heller for having a gun in the District of Columbia, that’s over. Heller cannot be punished for that. And that’s final, and the executive can’t come arrest him again about that. And the Congress can’t pass a law, repass a law, or prosecute him under, for the prior act that’s been adjudicated. Courts are final in cases between parties.
LA: Now that’s what’s final. Now it’s also very important, and ultimately even authoritative as a point of national law, that is to say if the Court, Supreme Court rules consistently for a long time by, I’m using Abraham Lincoln’s qualifications in the Dred Scott case. He says if a divided court in a single case between parties passes a decision that revolutionizes things, then if that is final, then the people shall have ceased to be their own rulers. So Gorsuch, that’s very good. Gorsuch knows he’s bound. He’s so smart. He’s bound to know better than I know everything he just said. But what he said was a very elegant, short way of saying courts are very important, and even final, but they’re not infallible.
HH: And in fact, he said, I don’t have the quote, we’ll come back to it. He said repeatedly when challenged on Citizens United, Senators, there is ample space for this body to return and legislate in that area. And I will not tell you what I will do or what I will think of it, but you may return to that area, because we do not make laws at the Court .He said that again and again. It was wonderful to see. I’ll be right back with Dr. Larry Arnn, and we’ll continue the conversation about Neil Gorsuch right after my break.
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HH: NG: In the 5th Amendment, Justice Stevens in apprendi wrote a very fine examination of the original history of the Constitution, and said it’s not right that an individual should be sentenced to prison, than hand sentence on the basis of facts, a jury hasn’t found. Those are all originalist, if you want to put that label on it, opinions, every one of them. You could look at Powell V. McCormack about the qualifications of members of Congress. That was written by Chief Justice Warren. It’s a very careful, you might agree or disagree with it, it was a very careful examination of the original history and understanding of the relevant provisions of the Constitution, or Heller, a 2nd Amendment case. Justice Scalia and Justice Stevens both, majority and dissent, wrote opinions that are profoundly thoughtful in examining the original history of the Constitution. I guess I’m with so many other people who have come before me – Justice Story, Justice Black, and yes, Justice Kagan, who sitting at this table said we’re all originalists in this sense. And I believe we are.
HH: What did you make of that, Dr. Larry Arnn?
LA: Well, it’s just unfair.
LA: (laughing) You know, really, if you’re going to start doing that kind of thing…
HH: You know, I was talking to a friend last night, and said to him, Robert O’Brien, you know him, from the Churchill dinner that we threw.
HH: This is proving to me that the best strategy for the Republicans is to nominate qualified people. (laughing)
LA: (laughing) Yeah. Whoever thought that coming?
HH: All right, now I want to close by going back to Obamacare, because this most unusual president, Donald Trump, about whom people are trying to speculate he’s trying to shift blame, is in there fighting this morning for the bill. He has tweeted out two things for the Obamacare repeal and replace bill, captained by Speaker Ryan. He has tweeted out after seven horrible years of Obamacare, skyrocketing premiums and deductibles, bad health care, this is finally your chance for a great plan. And then 29 minutes, that was 37 minutes ago, 29 minutes ago, he tweeted out the irony is that the Freedom Caucus, which is very pro-life and against Planned Parenthood, allows P.P. (Planned Parenthood) to continue if they stop this plan. He is a developer, Dr. Larry Arnn. I used to represent them. I still do. You used to provide them their intellectual architecture. I just tell people if they want to understand him, they’ve got to know developers. He will fight for his plan.
LA: Oh, yeah, and see, I do not myself believe that, first of all, I, today, I hope this bill passes today, recognizing it’s got many shortcomings. But I also think we’re going to be fighting about this again and again, because a lot needs to be done to supply, to sever two things, right? One is you want a safety net in medical care for everybody, and you’ve got to get that in the cheapest possible way. And then the other thing you want is you want market-based forces allocating health care resources, because then, they will be cheaper and better, and there’ll be more advances. And so this bill probably doesn’t do that. What do I know? But it’s probably a good step in that direction, and doing something to vindicate that claim. But then, there’s going to have to be more bills, and I think, and so that, remember when Tom Cotton said they don’t have to do this so fast, they should take their time?
LA: Well, there’s nothing wrong with that statement for sure, because in the end, it is going to take a lot of time to unsort all this stuff.
HH: And I would like the Senate to take the next at bat. I would like it to go over there and them to take their time. Dr. Arnn, my metric for progress actually came from Richard Nixon a long time ago. The incremental expansion of liberty and literacy across a growing number of stable regimes apart of or aligned with the West, it recognized that you don’t accomplish things over night, but you’ve got to go in the right direction, which is actually backwards in this case, to a federalism structure.
HH: And I just, I just do not understand purists, because our framers were not that.
LA: Yeah, that’s right, and they couldn’t, you know, the big things they compromised with are of course famous now – slavery and stuff like that. But there are a lot of stuff, and that’s right. And we need to get a direction going here.
LA: And Lord help us, the President gets up in the morning knowing what he’s going to do every day, doesn’t he?
HH: Yeah, he does, and he gets about it. But I want to emphasize that. We need to get a direction going today.
HH: It isn’t my bill, it isn’t your bill, it isn’t Ryan’s bill, it isn’t McCarthy’s bill, it isn’t the President’s. It’s a bill of a majority, hopefully, in the House that will go the Senate and be worked on. But the direction is good.
LA: I think so, yeah. Yeah, and that’s, and you know, keep it up, right? And then hope that Donald Trump’s health survives, you know, for, hope that…you see, I think what, I do think this. And this, I think firmly and clearly. I think that Donald Trump is attempting a revolution back toward Constitutional and limited government. I think he’s an enemy of the regulatory state. And they’ve announced that they’re going to fight that every day, and they are doing that. God bless them.
HH: Dr. Larry Arnn of Hillsdale College, more next week @Hillsdale if you want to follow them on Twitter, www.hillsdale.edu for all things Hillsdale, and www.hughforhillsdale.com for all of our dialogues going back now five years. Stay tuned, America.
End of interview.