HH: It’s the last hour of the radio week. I am broadcasting from the Kirby Center at Hillsdale College center in Washington, D.C. Joining me from Michigan, though, is the president of Hillsdale College, Dr. Larry Arnn. All things Hillsdale are available at www.hillsdale.edu. All of our dialogues are available at www.hughforhillsdale.com. And you need to sign up for Imprimis if for no other reason than to get the best in monthly speech digest for absolutely free at www.hillsdale.edu. Dr. Arnn, we meet on the eve of the South Carolina primary. Voting begins in 12 hours, in fact, and I can’t think of a more consequential time. First, what was your reaction to Nikki Haley endorsing Marco Rubio earlier this week? Actually, let me start even earlier in the week, the passing of Justice Scalia, who I know you knew.
LA: I did, yeah, and one of my all-time favorite students clerked for him, and I have wonderful reports of him from that boy, whose name is Ryan Walsh. And he wrote something lovely. I’ll read, if you want me to, about Scalia…
LA: …and what he was like. I’ll summarize it. Before my clerkship with the Justice, outgoing clerk, Eric Tung, told me he’s the real deal. I learned what he meant. After oral argument, my co-clerks and I would meet with the Justice to discuss the cases. These meetings revealed the man. Like all of us, the Justice had biases. Yet unlike most of us, the Justice was often transparent about them. And they could always be overcome by reason. If the Justice were inclined to disagree with us about a case, he not only would welcome a fight, he would expect it. And when the clerks had the better argument, by the lights of his methodology, it was quite typical of the Justice to change his view, no matter what the outcome. Law was not politics to Justice Scalia, nor was it mere will. Law, to Justice Scalia, was law. So I just think that, you know, first of all, I know that boy and love that boy, and understand him. He’s about to become associate solicitor general of Wisconsin.
LA: And he just loved Scalia. Scalia must have been great.
HH: Yeah, you know, it is good to know that a lot of the young legal talent is going out to the various attorney generals – Mark Brnovich in Arizona, Adam Laxalt in Nevada, Alan Wilson in South Carolina, up in Wisconsin, to actually litigate cases of consequences to the states, Larry Arnn. And we can thank Justice Scalia, in part, for the fact that states still matter, because he was always an advocate, a firm one, of the 10th Amendment.
LA: He was. And you know, he was a contextualist, and that sounds like a boring thing to be. He even addresses himself to whether it is or not, but he was never anything but boring, never anything like boring. He was so funny, and so, you know, controversial, and so witty, right? So he’s very greatly to be missed, and of course, it changes the Court in ways that are very dangerous.
HH: I’m going to come to that. I will say to you, add to this, he was also very kind. In the year that I spent on the D.C. Circuit, I arrived, and my judge was incapacitated. Along with Terry Ross, my co-clerk, so Scalia and Bork and Ruth Bader Ginsberg organized to keep us busy by giving us each a couple of cases in their chambers, these two young lawyers who had an incapacitated judge until such time as the permanent arrangement could be made where we could join Judge MacKinnon’s staff. And he was as kind to us as he was to his own clerks, though we were strangers in a strange land. It was really remarkable for that guy to do that.
HH: That’s my only interaction with him, but I did know him as a clerk for two and a half weeks, and a wonderful fellow. Let me ask you now about the Court. I had Senator Hatch on, on Wednesday, on Wednesday of this week, Thursday, I guess, and he joined my no hearings, no votes movement adamantly. I don’t want any hearings, Larry Arnn, because I believe we have the high ground if we say that and nothing else. If we bring up to shoot down, I don’t think that’s the high ground. I don’t want to Bork anybody. I just want to say the Court matters too much for this president in this election year to have a new justice. What do you think of my argument? What do you think the Republicans ought to do?
LA: I think that’s right. I think, first of all, the Supreme Court right now is either 4-4 or 4-3-1, right?
LA: However those numbers come up.
LA: And it’s a deeply-divided Court on fundamental issues, and this happens at a time when the American people can have an opportunity to say something about this. And so it’s going to be wrapped up in this presidential election, and that, ultimately, is the highest authority in the land. And it is the people who did make the Constitution of the United States, so why would we not wait for them to say?
HH: Well, why? Because the left sees an opportunity at this moment. They see an opportunity to, I believe, erase the Free Exercise Clause, quite greatly diminish, if not otherwise obliterate, the 2nd Amendment, and many other of the protections accorded to the state by the 10th Amendment. I see them expanding the Equal Protection Clause under the living Constitution. I see Justice Breyer running the Court if they get another. The Chief Justice will remain the Chief Justice, but Justice Breyer will be the fifth and senior judge assigning all the opinions.
LA: That’s right.
HH: Or Judge Ginsberg will, but she’ll defer to Justice Breyer.
LA: It’s just so consequential. And you know, we should return to the idea that the people’s rights are the thing it exists to protect. And they did make it themselves. The only law they ever made, and so why don’t we let them decide what they want done here? That’s what I think.
HH: You are the author of The Framers’ Key, and an originalist of great note and consequence in the United States. And so would you explain to our friends out there who don’t seem to understand that Article II, Section 2, obliges the Senate to do nothing.
LA: Yeah, you mean about appointments to the court?
LA: That’s right. You know, first of all, the number on the Court is not prescribed in the Constitution.
LA: And so there is a process of two branches cooperating to appoint a justice, but it doesn’t say how many there have to be. And you know, people love, people who are in power in the executive branch now love Franklin Roosevelt. Franklin Roosevelt was going to increase the number. So it could be decreased if we, if either the Congress or the President wanted it, they could just not appoint anybody ever.
HH: Now I am not a fan of the filibuster, because that’s extra-Constitutional. But I am a fan of majority rule in the Senate. And we had an election in 2014, and your friend and mine, Tom Cotton, was part of that, and we took the Senate, and elections have consequences.
LA: That’s right, and you know, it’s one of the big issues in the campaign that made the Senate change hands, is that there has to be a check on the executive branch doing all these things. And the common claim in the election was these are lawless things. And so the truth is, let this Senate, the people have been pleased to divide power, and we’re on the eve of another extremely consequential election. As I say, let the people have a say.
HH: The President gave a press conference yesterday, Dr. Larry Arnn, not yesterday, but on Tuesday. And it was really extraordinary, because he announced, he was at the ASEAN summit, and he announced his sweeping proclamation as to what the Senate had to do. And it ignored everything the Democrats had done from 2001-2005, and in which he had participated in 2008, which was a blockade of George W. Bush’s judges. Does that level of hypocrisy, is it something to admire, actually, because it’s so epic?
LA: Well, it hasn’t always been true that shamelessness is a qualification to be president, but it seems to work these days.
HH: Here’s Chuck Schumer in 2007.
CS: …that we should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances.
HH: And here is Pat Leahy earlier than that.
JW: Wait, you should probably tell us what the Thurmond rule was.
PL: The Thurmond rule, the Thurmond rule, in memory of Strom Thurmond, he put this in when the Republicans were in the minority, which said that in a presidential election year after spring, no judges would go through except by the consent of both the Republican and the Democratic leader. I want to be bipartisan. We will institute the Thurmond rule.
HH: So will the shamelessness with regards to those positions actually work? Or do we pretend that it works because we want it to go away?
LA: Well, I, for one, don’t think that this election is going to turn on this question. This question is going to add intensity to the election, and it’s already extremely intense. And remember this point, right? So the people who are going to report, who are going to vote for the Republicans, they don’t want anybody appointed right now. And so who are they going to please if they appoint somebody now? Not likely, you know, anybody who might actually vote for them.
HH: No, I actually think if Mark Kirk in Illinois, which is near you, or if Ron Johnson in Wisconsin, which is near you, if any of them go wobbly at all, they’ll lose their Senate seats that day that they go wobbly. The conservative base will simply throw them out.
LA: Yeah, that’s right. They don’t, you know, I mean, I think that this election, by the way, which his unprecedented in my now long life, it is a great expression against the status quo. And so why don’t we let the people say what they want the government to look like? Then we can put somebody on the Court.
HH: That is exactly to what we will return when we come back on the eve of the South Carolina primary. I haven’t forgotten that. I will ask Dr. Arnn about that, about Nikki Haley’s endorsement, about Marco Rubio, about Ted Cruz and Donald Trump, all of that, and of course, Hillary Clinton when we return to the Hillsdale Dialogue on the Hugh Hewitt Show.
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HH: I have been, in recent weeks, talking more politics and less Western Civilization with Dr. Larry Arnn, the president of Hillsdale College. But that is as it should be, given the times in which we are. And I have to play for you, Dr. Arnn, a clip of former Secretary of State Hillary Clinton. I actually think this is one of the most reprehensible things I’ve heard said in the public square in a long time. She said it on Tuesday of this week.
HRC: Republicans say they’ll reject anyone President Obama nominates, no matter how qualified. Some are even saying he doesn’t have the right to nominate anyone, as if somehow he’s not the real president. You know, that’s in keeping with what we’ve heard all along, isn’t it? Many Republicans talk in coded, racial language about takers and losers. They demonize President Obama, and encourage the ugliest impulses of the paranoid fringe. This kind of hatred and bigotry has no place in our politics or our country.
HH: On so many levels, that’s a reprehensible statement. What’s your reaction to it, Dr. Arnn?
LA: Well, first of all, it raises one of my pet peeves, and that is governments and politicians don’t have rights. They have authorities. And so President Obama has the authority to nominate somebody. That’s unquestioned. But the Senate of the United States has the authority to either not consider that person or turn that person down. That is unquestioned for the same reason.
HH: She says, though, some are even saying, and of course, no one has said other than what you just said, which is he has the absolute authority to nominate.
HH: No one of any consequence has said it. So she makes it up in order to springboard to the assertion that we are using coded, racial language, which is an invitation to introduce race into this most delicate of subjects, the Court.
LA: Of course, and that’s, you know, that’s the oldest game in town, right? And you know, one of the reasons for the rise of Donald Trump is people are sick of the these controls on what can be said and not be said. And you know, it would be a shame to oppose Barack Obama because of the color of his skin. But to be accused of that because you don’t like the kind of Supreme Court appointees he’d put forward is just foolishness, right? Or it’s slander.
HH: Well, I would say it would be sinful to oppose President Obama because of the color of his skin, and it’s sinful to suggest that somebody does.
HH: That’s Christian terms, right? That’s just…
LA: Yeah, both, yeah, it is sinful, and it also is a violation of the principles of our country, both of those things. And so, and that’s right. and using that to whip people, I mean, look at these cry bullies that are taking over college campuses all over the place, right, and the many terrible and terrible things that they have been subjected to, like somebody wearing a Halloween costume, that offends them. That, you know, that is a way to enforce things on the society. And I think people are getting tired of having things enforced on them.
HH: Well, I got tired of the President’s press conference. Let me play this for you from President Obama’s Tuesday press conference as he wraps it up in response to a question about those wascally Wepublicans.
BO: But this is the Supreme Court. And it’s going to get some attention. And we have to ask ourselves as a society a fundamental question. Are we able to still make this democracy work the way it’s supposed to, the way our founders envisioned it? And I would challenge anyone who purports to be adhering to the original intent of the founders, anybody who believes in the Constitution, coming up with a plausible rationale as to why they would not even have a hearing for a nominee made in accordance with the Constitution by the president of the United States, with a year left, practically, in office. It’s pretty hard to find that in the Constitution.
LA: (laughing) That’s great. I like that. You know, I didn’t know that I was violating a direct challenge from the President earlier in this conversation.
HH: You were (laughing).
LA: (laughing) I’ll be darned.
HH: But you are a president, too, and so it’s okay. You have, and you actually have read the Constitution and care what’s in it. I don’t, he taught Constitutional law for a year, or a couple of years, as a lecturer at the University of Chicago. He was on the Harvard Law Review. He didn’t write much about it, and he’s not much of a lawyer. Nevertheless, you can read Article II, Section 2 and then the Recess Appointment Clause which follows thereafter, and understand the whole of it in about 30 seconds.
LA: Yeah, it’s pretty easy. It’s pretty easy, and this whole thing, you know, I mean, my own real, deep view about all this stuff is that I think that there’s just way too much focus on the power of the Court, because, and we, I think that we have acceded too much authority to them, because in the old days, and I refer to the days of Abraham Lincoln, and Andrew Jackson, and Thomas Jefferson, those old days, all three of those guys, the way they read the Constitution was they take an oath to it, too, and so does every member of Congress. And that means that they are required to advocate for their Constitutional opinions. Now what they don’t have any power to do whatsoever is interfere with any case, of the outcome of any case that comes before any court, any court, including the Supreme Court. So when the second time the Supreme Court overturned a law, they declared that Dred Scott was a slave, and they declared that the reason for that was Congress has no power to regulate slavery in the federal territories. That decision declared Dred Scott forever a slave, no legal remedy of any kind remaining to him, and it also undercut the free soil movement that formed the Republican Party, including here at Hillsdale. In other words, it gutted the platform of the Republican Party. What did Lincoln say about that? He said Dred Scott, poor man, is ever a slave hereafter. We can’t do anything about that. We have independent courts. But then he said, but when a divided court on a single occasion in a matter between private parties declares the whole policy of the nation, if that’s the end of it, then the people shall have ceased to be their own rulers.
HH: Wow. You know, you just called to mind Justice Scalia’s dissent in Planned Parenthood V. Casey. He ends by contemplating the portrait of Justice Taney, who wrote Dred Scott, a dark visage, gloomy, aware of what he had done to the country. It’s a beautiful dissent by Scalia in an important case, but it does underscore this. And you said something earlier, and I want to go back to it. So again, for our liberal friends who are listening, the people themselves ratified the Constitution. This is not a document that can be done away with lightly. That’s why I don’t like filibusters. The advice and consent of the Senate means by a majority of the body, in my view. But it need not give it if a majority doesn’t want to give it.
LA: That’s right. Of course, it’s right. And if they’re, so you know, think about the filibuster for a minute. So my wise friend and yours, Tom McClintock, the Congressman, explained the filibuster to me not long ago better than I had ever done to myself. He said all it is, is a rule that any, in any parliamentary body, if 30% of the members don’t want the debate to end, it must continue. But the people who want to debate must be present, and what they say must be pertinent to the question at hand, and the speaker or the chair has the power to rule that it’s repetitive.
LA: So in other words, this thing we’ve got where one guy can stop the whole thing without even being there, that’s wrong.
HH: That’s not a classic filibuster. I’ll be right back with Dr. Larry Arnn on the eve of the South Carolina primary. Stay tuned, America.
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HH: Dr. Arnn, I’ve been speaking this week with Ted Cruz, a wonderful conversation. I’d encourage everyone to go and look at that great Constitutional litigator’s opinions on the Court, which was on Tuesday of this week, and with Senator Rubio and Dr. Carson and others throughout the week. Despite all the shouting and throwing of proverbial chairs, we’ve got a lot of talent on the Republican side.
LA: Yeah, I’m, you know, people are despairing and worried, and you know, there’s every good reason to do that. But one reason not to do that is the strength of the field. It’s just, I’ve never seen anything like it. People always say yeah, but the Reagan election had a very strong field, and I said yeah, that’s like John Marshall saying it’s the greatest assembly of talent since Thomas Jefferson dined alone.
HH: Yeah (laughing)
LA: (laughing) Who else was in that race, right? Can you remember?
HH: Right. Yeah.
LA: But these guys, there’s a bunch of them that are really good. And I don’t know that I think that Trump would necessarily be a disaster, right? I’m taking him seriously, too. But there’s a bunch of them, and Ted Cruz and Marco Rubio and Jeb Bush, you know? I’ve always thought, I wish he’d won his first election in Florida, and then he would have been president.
HH: You know what I like about the Hillsdale Dialogue is I’m always giving you orders.
LA: Yeah, yeah, that’s right.
HH: And you pretend to pay attention to me.
HH: And here’s an order for you, which is we’ve got to think seriously about an open convention and how it will be conducted. And I don’t think they ought to do that ad hoc, and I don’t think they ought to do it without the input of senior thinkers and public intellectuals about how it ought to be conducted so as to have the greatest amount of confidence in whomever an open convention eventually nominates, even if it isn’t the person with the largest number of delegates arriving. That could be Mr. Trump, or even if it is. But there’s got to be some thought given to this, and I don’t think we’re prepared for that, Dr. Arnn.
LA: I don’t, and I don’t, either, and the Republican Party, I’ve said this before on your show, which seems like our show sometimes, because I’m taking orders.
LA: I, first of all, the convention that nominated Abraham Lincoln turned into an open convention. Nobody won on the first ballot. Everybody was free, and Lincoln won on the two and a half ballot. But the second thing is we don’t, the Republican Party doesn’t have, I was about to say we don’t have in either, but it’s not true, the Democrats have these superdelegates, right?
LA: …who are not really representing constituencies. They’ve former and current elected officials. And they can, they have in the past, and for example, when Obama became the nominee, they have in the past sort of moved as a body. And they have a lot of sway there. The Republicans don’t have anything like that. And so it’s going to be, if it’s open, it’s going to be really open.
HH: And there ought to be some conversation beforehand. This was my assignment to you, good Dr. Arnn, is to talk about that it’s legitimate for conventions to change their minds and move, and that that’s what got Lincoln. Didn’t he come in fourth on the first ballot out of four?
LA: He did. And see, think of this. There’s no mention of political parties in the Constitution. And in fact, they only come up in the founding literature before the opening of the government under the new Constitution as a negative thing to be avoided. And then, of course, the guys who wrote all those negative things to be avoided formed them immediately and began to campaign against each other.
LA: And it means that it’s an organized group of citizens seeking to recommend and move their fellow countrymen to a certain course, right? And that means that under the Constitution, there could be 50 parties, or there could be two parties, or there could be no parties. And the parties are not an extension or an apparatus in the modern administrative state any more than they are recognized in the Constitution. And that means they can do what they want. And then when the ballots come in November, then, you know, there’s, states each have their own provisions for what it takes to get on the ballot.
LA: And there will surely be in nearly every state seven or eight or nine people on the ballot anybody who can meet the qualifications can get on there. And so the conventions, they’re free people in a free republic. They can do whatever the heck they want. And then people, come November, can vote however they want, and thank God for both of those things.
HH: And the stakes will be so high that the party has got to, I think, and I think Chairman Priebus is good at this, inform the constituency that this is not a done deal behind closed doors, though some doors will close, and deals will be done. It is not wired.
LA: My old friend, Bill Rusher, who was publisher of National Review for 30 years and then came to work for me at Claremont, he was at the Goldwater convention in 1964.
HH: Hold that thought until we come back after break.
HH: I want to hear that story in complete. Don’t go anywhere, America. I’ll be right back with Dr. Larry Arnn.
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HH: You were saying your friend, Bill Rusher, was at the 1964 convention that nominated Barry Goldwater. Where were you taking us, Dr. Arnn, with that recollection?
LA: Vivid, fun guy to know, and he told the greatest stories. And he would tell me about that convention, and you know, when they went there, they were just not confident is was a done deal. And it was, if you just think back, anybody who’s old, or old enough, can think back to the banners waving and there being some doubt in some decisions getting made, right? And Rusher’s told me many long stories about the exhausting days and nights of trying to organize that convention and running around, and of course, that’s before instant communications, reaching delegates and talking to them. And you know, in the Lincoln case, there were huge deals made, too, which Lincoln always said he wouldn’t abide, and then he did. But there’s a guy named Jim Moore, and Rusher used to carry in his pocket Moore’s Laws, which were written in the heat of the convention as a source of humor, and to provide some sanity. And his first rule of conventioneering, I can only remember the first one, was don’t just do something, stand there.
HH: Well you know, that was the famous Nelson Rockefeller middle finger salute to the Cow Palace booing him.
HH: …in a fury of contorted faces, and we can’t have that happen in Cleveland, because I’ve got to go back to Hillary Clinton. She is, as of this week, seven points behind in Massachusetts to a socialist, a state that she won by double digits over President Obama eight years ago. She’s in collapse.
LA: Yeah, I still think she’s going to be the nominee.
HH: I agree, but she’s in collapse.
LA: Oh, yeah. She’s not, I mean, you know, let’s put it this way. She’s not as warm and likable as many people. (laughing)
HH: Did you hear the coughing spasm?
HH: I’ll play you a little bit of this. It’s uncomfortable. I do not mean to mock the former Secretary of State. But this has happened a few times. This was from her same speech that we cited earlier.
HRC: (coughing) excuse me (choking) (coughing) too much to say (coughing) (more coughing) (extended coughing) that’s been (coughing) wow thank you, Hazel (coughing) that’s been part of my mission (coughing) representing poor people through Legal Services Corporation. It was about making people’s (coughing) lives better. And it taught me that even if you’re young, (coughing) and you don’t have a powerful job, if you work at it, and you stick with it (laughing) you can make a difference.
HH: And so Dr. Arnn, this goes on, and it’s three minutes long. And she’s had these bouts, and I’m very sympathetic as a public speaker. I know what allergies do. I know what happens when you lose your voice. I’ve heard other people wheeze through speeches like this. But I think generally speaking, the public is concluding that they are weary of her and her husband, and that they are too advanced in the public stage. They’ve been there too long. They’re like the permanent corneal implant that someone put in, that we can’t get rid of, and that she’s done.
LA: Yeah, the, you know, the famous words that Cromwell spoke to the long Parliament that were later quoted by Leo Amery to the party that, on the day that they rejected Neville Chamberlain and Churchill came in two days later, or the day later. You’ve been here too long for any good that you’ve been doing. In the name of God, go.
HH: And they went. The long Parliament came to an end, followed by the short Parliament.
HH: And so we conclude. Tomorrow, South Carolina is going to have a huge say. We are heard everywhere in South Carolina. This hour is heard across the state on a hundred thousand watt, 94.5, as well as in Charleston, Myrtle Beach, the islands. What’s your advice to the voter of South Carolina tonight, Dr. Arnn?
LA: Well, just the general advice, right? You’ve got to, I am for reform and return, right? So I hope they’ll vote for somebody who’ll do that. But above all, I hope they’ll think really hard about this, and they should go and vote, because this is a turning point in America, and that’s what all this excitement is about.
HH: What do you mean by reform and return?
LA: Well, we’ve got two governments now, right? We’ve got the Constitutional form still largely operating, but we have created around it a structure that is in numbers and amount spent, and all those measurements, much larger than the old Constitutional structure. And we have centralized things and subjected things to rules made in detail at the center. And so that’s an administrative state way of governing and not a Constitutional government, which is essentially decentralized, proceeds more by goals than by rules, and leaves most of government, the administrative part of government, to localities and states. And the danger of the new way, it’s not just that it’s expensive and intrusive and hard to affect, it’s also that it makes the government a separate interest in the society, very large. You know, 21 million people, state, local and federal, some number about that, work for the federal government, have for decades now, and they are increasingly, and they are now, a major force in the politics of the country. And you don’t want that, right? You want like the reason of having frequent elections was so that the government doesn’t become separated from the society. And I think that all these people who feel left out, both the Sanders voters and the Trump voters, I think that they’re objecting to the symptoms of that. And so there’s a whole bunch of people running for office, you know, one on the left, and many on the right, who want to change all that. And people are responding to them. And that’s why this may be a turning point in the history of the country, for good or ill.
HH: For good or ill. It could go either way. It depends, it depends completely on how they act, and not only that, but beyond it, the debate next week and beyond it, well, we’ll talk about it the next Hillsdale Dialogue next Friday after that debate. Dr. Larry Arnn of Hillsdale College, thank you. www.hughforhillsdale.com for all of the Hillsdale Dialogues, and www.hillsdale.edu for everything Hillsdale.
End of interview.