WEBVTT

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Well, whiskey coming fame, my
Paine, my brain, Oh whiskey,

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don't you let me Mountain? From
Powerline blog dot com and produced by Ricochet

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dot Com. This is the three
Whiskey Happy Hour with your bartenders Steve Hayward,

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John You and power Lines International Woman
of Mystery Lucresha's gotta give in and

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let that whiskey blow where you're been
in low down and low Well, Well,

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folks, we have finally gotten to
the bottom of why David Brooks has

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turned so bad at the New York
Times. It turns out he drinks his

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whiskey on the rocks him. Everybody, It's Steve Hayward are your host of

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this week along with John You and
Lucresha as usual. And did you guys

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see David Brooks's a twit twit twit
twit. That's appropriate Twitter thread going around

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about how he's spent eighty five dollars
on a hamburger and fries at the Newark

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Airport, but two thirds of the
cost was the whiskey he was drinking with

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three or four ice cubes in the
glass. No wonder the guy's gone so

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bad. How are you guys today? I thought people drink bourbon with ice

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in it all the time. Well, I I don't know if it was

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bourbon or Scotch whiskey, but either
way it's a dad sign. I drink

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a lot of bourbon, but I
usually don't put any ice in it because

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it dilutes the flavor. You can't
really get any sense of whether it's good

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or bad. I didn't see the
picture of David Brooks's eating. I don't

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know how we descended to wanting to
look at David Parks while he's eating,

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but I mean, while he's eating, it's what he's eating. John.

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Yeah, I've been. I've been
in Newark Airport. Probably you guys have

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to at some point. I actually
love it because it's got all these cool

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food places and it is outrageously expensive. But there's no way it was eighty

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five dollars. I mean, I
could see Newark charging twenty five dollars from

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Hamburger, which itself is outrageous because, of course, as we know,

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for a McDonald's, you could get
about three hundred Hamburgers for that price.

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But it's just any would be better. But you know, I think actually

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the height of it is, you
know, sitting there calling attention, putting

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on Twitter what he's eating and drinking
like that should be of interest to anybody.

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Well, what he did was,
Johnson, you haven't seen it is.

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What he tried to do was say
that spending eighty five dollars at on

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that meal at the airport made him
understand what it was that the average American

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household was experiencing because of inflation and
outrageous. Yeah, I mean that was

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the tone deafness of it. It
was just ridiculously stupid. When I was

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when I left you guys at the
Oakland Airport, my plane was delayed significantly.

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And there's a nice little place I
like to go to. They have

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they have a meal chicken something chicken
tenders meal that mall you no, No,

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I need a lot. So it's
like ten bucks for the meal and

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then a glass of wine. It's
twenty And I'm okay with that. I'm

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perfectly okay with that. But I
have to confess I'm a I'm an airport

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lounge guy. I really love airport
lounge. Yeah, especially the San Francisco

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has some great ones, especially all
you can eat ones with and now they

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have some like the one I go
to an SFO has a bar where the

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drinks are all free and they have
good top shelf bourbons and scotches. They

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go Lucretia. Yeah, well we're
going to establish ourselves as on the reminder,

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well there is just to finish this
off, because it really it's not

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worth wasting this much time on David
Brooks, except if you go back to

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around I don't know two thousand and
five too, I don't know what a

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while ago now he wrote a couple
of articles in the Atlantic about how he'd

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gone out to the heartland to report
and what he found is in you know,

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rural Ohio, rural Pennsylvania. He
couldn't find any restaurant where it costs

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him more than twenty dollars to get
a dinner. He tried to spend more

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than you couldn't do it. So
now he's on the other end of the

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spectrum. And and anyway, the
cluelessness of our elites. I since we're

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in different time zones, listeners,
I am coming to you from Budapest in

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the evening, where I spent the
afternoon at Cafe Scrutin. I don't know

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why we don't all move here because
Kathley scrutin is just awesome. They have

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it. They have the window Neon
signs with his great book title. I

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drink therefore I am and this evening
instead of whiskey, I'm having one of

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the unique Hungarian white wines, fermant
grape they call it. I don't know

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what it is, but it's very
nice and different from California wine. One

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other thing I will show you,
John, is a ceramic McDonald's. Awesome

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is that that's not paper, that's
a real Oh he you bring one back

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for me? Really? I want
one. I want one, putting it

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right on my desk. Oh,
that's all you're gonna say. So you're

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just ceram ig noois people just okay? Well, all right, a couple

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of in the news before we get
into some serious topics. This is brand

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new and I didn't warn you about
this, but I declare it now.

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Gavin Newsom is running for president.
How do I know this? Well,

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yesterday he vetoed the much discussed bill
that's been working its way through the California

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legislature for several months now that would
have allowed I forget who that the government

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to take your children away from you
or deny custody to particular divorcing parent if

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they did not affirm their child's gender
identity. And Newsom veto this in a

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surprise and shocked to the left in
California. It will be interesting to see,

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since Democrats have two thirds majorities in
both houses, whether they override his

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veto. That would be an interesting
thing. We'll see. You would have

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thought Newsom would have sent a signal
that he didn't want this bill, but

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I think they wouldn't have listened.
So add that to the fact that Newsom

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three or four weeks ago said,
you know, our federal courts really need

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to overturn those two Ninth Circuit decisions
that say the police can't enforce laws against

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public camping and therefore can't do anything
effective about these homeless camps. So there's

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Newsome tacking obviously to the right,
which is a sign to me that he's

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going to run for president. Now
how he gets Camela out of the way,

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I don't know, but there it
is. That's my opinion. Did

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you follow this, John, or
you know you've been traveling? He no,

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no, he so, I don't. You might not have seen it,

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but he did an interview National News
interview in the last week where he

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was adamant about Biden running again,
having his full support and that Kamala is

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the right VP candidate. But I
think what he's doing is he's taking out

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an insurance policy because if he had
I think, if he had half a

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brain, he would be aiming for
the next cycle when Biden will be gone

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one way or the other, where
his main opponent might be Harris or it

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might be Boudag. I mean,
he could walk, he could ice skate

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through it if that's his opposition.
But I think this is an insurance policy

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for what happens if something happens to
Biden he drops out or you know,

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the party elders prevailing and delete.
Because so what it is, it's a

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sign of the nervousness within the Democratic
Party itself. I think, well,

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you know, people on a chatter
this week, how worried they are about

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his age and poll ratings or look, I saw a pause this right that

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Nikki Haley's beating him by like four
or five points in the head to head

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or yeah, yeah, that's that's
what the polls are show. You want

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to get rid of Biden and put
someone in charge of you. There's something

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that nobody has mentioned, to my
surprise, is a Gavin K. Newsome

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candidacy would solve two problems for Democrats. You'd get rid of Biden. You

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would also have to get rid of
Harris because of the old provision in the

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Constitution that you can have the president
and vice president from the same state.

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So Gavin who by the way,
he k Newsom and Harris hate each other.

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I mean this is well known in
the Bay Area. So you know,

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Gavin Newsom can once again say,
gosh, you know she's been great.

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It was all four but you know, there's this pesky little thing in

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the Constitution. I've got to have
Amy Klobashar's my running mate. You clear

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the whole decks out. You solve
both problems at once for Democrats. And

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that's another reason why I think it's
going to happen. Although my predictions are

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usually wrong. So the lucretia you
can now beat up on me for being

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what infernal optimist and that's that way
optimist. But anyway, yeah, I

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know what's optimistic about Gavin Musson running
for a president because he probably will shrim

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is a bit in order to get
elected, and then we will be the

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rest of the country will become like
your people's god forsake and state, and

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I will move to Hungary then.
And so there's my thought on the matter,

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okay, And I have nothing else
to say about. One of the

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things I noticed that you said,
I think it was in your Weekend Pictures

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introduction is how even the Hungarians are
commenting on how unserious we are. It

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Really, you couldn't write a novel
that explained American politics as they've sort of

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presented themselves this last week, just
this last week, that would be any

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more ridiculous, and what's really happened? And they know we're going to get

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to some of these, but let
me just throw some of it out there.

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Schumer, that idiot Schumer allowing Fetterman
to come looking like a bagman off

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the street, Oh my god.
I mean, and you know, it's

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a funny thing Steve and I were
talking about before you got on, John,

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about how somebody from the Post,
the Post sent one of their reporters

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out to fancy, you know,
very fancy, very exclusive New York City

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restaurants dressed like Fetterman. And so
the funny thing was had pictures and of

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course they wouldn't let him in anywhere. But this guy, So here's the

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difference. It's not just that Fetterman
is an unbelievable slob and he is just

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he's a he's a Cretan. He's
he's a troll. He's a huge,

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giant troll. He looks like something. Do you remember what? I forget

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who actually said it, but they
called Mary Matlin's husband, James Carville was

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the spawn of the the sex scene
and Deliverance. Do you guys remember that?

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It's just such a great I mean, you know, James Carvill is

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like Carrie Grant compared to John Fetterman. So I mean, why wouldn't the

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guy at least want to try to
do something about how incredibly scary he looks?

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Anyway, that's it. Sorry,
I'm engaging in lookism again. John.

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It's my home state. I'm so
embarrassed at Fetterman as a senator.

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But there's the only reason he won
is because Republicans put up doctor Oz.

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And doctor Oz was from New Jersey. That's nobody from Pennsylvania's going to vote

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for someone from New Jersey. That
was But I just saw I think that

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we've got a great match coming up
because Dave McCormick, who lost to doctor

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Os in the primary. I think
just announced this. He's going to take

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on Senator Casey. That's going to
be a great race, and the next

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probably won't even have a primary opponent, is what I saw. I hope,

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So, yeah, yeh'd be good. They cleared to Field. I

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mean he he only fell a few
hundred votes short against us, and yeah,

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who knows, we'll see. I
actually think I'm not convinced that McCormick

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would not also have lost to Federman. I know that's not the conventional wisdom.

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And the reason I think that is
they would have run me, he's

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a rich guy from Wall Street,
campaign against him, and who knows how

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affective would have been encountering it.
I think we'll find out because they'll run

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to get that against him with Casey, and so we'll see. Let's see

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what else is going on. Oh, I can wait before you go on?

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Sure, I do want to stop
and ask my well dressed friend John

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what he actually thinks about the larger
implications of of giving Feederman this break to

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come actually onto the Senate floor.
Senators, Now, I guess, even

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though, of course you know that
the elitism of it is so dauntingly hypocritical

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that, you know, staff members
still have to wear suits, but fetterman

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gets to come looking like, you
know, he just rolled out of bed

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from in a homeless center. What
do you think I mean, do you

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think there's any Is it just snobs
like us, looks like me who are

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so appalled by this. You know
you can't even be casual without a lapel

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on your shirt, John, and
I admire you for that. I put

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one on. I got a lapel
shirt out special for Lucretia today. I

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kind of gone T shirt since the
Saturday, But actually I don't have any

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T shirts except for the gym I
actually never wear. But the I don't

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see why I should rent let people
rent out the front space on my body

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with very slogans and advertisements for free. But I think that when you wear

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a tie and jacket at the Senate
or notice no presidents have gone casual.

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Still, Jimmy Carter, did he
not wear well remember the Jimmy Carter thing

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about what he was gonna well the
elite's by wearing his sweaters in the world?

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Did wear sweater vest ones for a
national dress to fire member? Yeah,

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but that wasn't in the Oval Office. That was in you know,

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the Roosevelt rum or somewhere. The
fireplace was kind of a stunt. I

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mean, I still remember Ronald Reagan
would wear his coat and tie to the

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Oval Office. I mean, I
mean he used to talk about, how

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can I even take my jacket off
in here? Right? Because he thought

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and then Clinton would wear it a
coat and tie but no pants. Boy,

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I could just you know, man, this is Steve's fault. John.

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I told him already because he's he's
I'm not even nearly as offended by

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him telling me last week's shushwoman.
But I am offended by him texting me

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and wagging me up at two fifty
one in the morning because he's not smart

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enough to figure out a nine hour
time difference. I just figured you'd like

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to wake up to text. I
can't believe you had your phone on next

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to your bed. You have important
stuff happening in my life that I need

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to know about, but it's not
a text from you. Well, all

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right, I may I may keep
it up. Any finished question, though,

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which is yeah, I think that
when you wear tie and jacket at

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the White House, I think at
the Supreme court. I haven't seen anybody

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argue a case without a coat and
tie on. In fact, I think

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that's a good way to get yourself
kicked out of any federal court. It's

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a show up, casual. It's
you're showing. It's not that it's your

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showing respect for the institution. I
think it's That's why what Federman's problem is,

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he's saying he's superior to the institution. When you wear a tie jacket

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on the floor of the Senate,
you're showing your respect for the Senate,

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and it's long history and it's important. So that's the sole only serious point

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I would make there. But what
happens when Federman shows up. I know

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what he's gonna do next. It's
going to be like, remember when we

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were younger, maybe you didn't see
these, they would wear these uh T

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shirts on the beach where they would
print on the front a tie jacket,

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right right, Like Federman's next movement
to hoodie's just going to paint a tie

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jacket on the front of a hoodie. Serious point, Steven, it's really

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quick, and then a joking point. The serious point is is that there

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was an article I don't remember who
from I was a decent article. I

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wish I did to give him credit, but it was basically the whole point

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of this nonsense about allowing him to
dress that way is not, in fact

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what we should be focusing on,
but that that he is dressing that way

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may have a lot more to do
with the fact that, you know,

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he's really just a very what how
do I say this without being too rude?

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I mean, he's brain dead,
is basically what it comes down to.

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And he's probably not capable of dressing
himself, and that, you know,

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this whole idea that we need to
allow him to do this to you

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know, accommodate his depression and all
of that, which is you know,

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the argument behind it is. Think
about that for a minute. We've got

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somebody in the Senate, and I
really don't blame you, John, because

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you didn't vote for it, but
they are your people who did. We'll

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leave. But you know what,
one might argue that they should force him

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to wear a suit just to see
if he can do it and tie a

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tie. Right, I mean,
he's silly, but he's worn a suit

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a couple of times, but he's
complaining a lot about put it on him.

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Well, who knows. The news
reports I see from overseas is that

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there's a ferocious backlash to this,
that there's likely to be a vote by

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a resolution to restore the old rules. I did like the idea that Lauren

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Bobert, if they did, the
House would show up in a bikini.

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Or was it Susan Collins who said
that either one. Yeah, there's a

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big difference between Susan correct. Yes, I can grasp that. I can

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grasp that this for Yes, John, remind me here before we move on.

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I believe the Solicitor General still wears
a morning coat when he appears to

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the Supreme Court for an argument.
Yes, I remember, and sometimes even

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the non government lawyer. I mean
I went to an ordal arguments twenty five

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years ago now where the lawyer who
was not the government lawyer it was John

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Barron of whiley Ryan. He wore
a morning coat just because he wanted to

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match the Solicitor General's appearance, I
think, and or he might have been

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a former Sg's office Lloyd could be. I'll bet he was right. Maybe

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yeah. Okay, so one last
year on that sorry, go ahead,

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go ahead, No, I'm done. Point uh number one. I actually

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blame my own senator a little bit
for the relaxing standards, because miss Stripper

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Boots herself has not really followed what
I would consider the appropriate decorum for senators

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in the United States Senate. But
I'm speaking, of course, of Kirsten

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Cinema in case I don't know,
I kind of like some of those outfits

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myself, but would which is why
she gets away with it. But yeah,

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I don't. I don't like women
that dress like bananas and ridiculous and

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wearing ridiculous colors and things like that. But of course, you know me,

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I wear black until they invent something
darker. And I also, just

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as a total tangent, absolutely irrelevant
and unimportant, I grew up for as

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you know, for a long time
as a child attending a very fundamentalist church.

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I'll just leave it that way,
where you didn't go in anything but

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address and long sleeves. So,
as you all know, I'm now Catholic,

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and Catholics, I mean Catholics.
Will many of them come to work

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come to church dressed like John Fetterman
uh and is quite common, really yeah

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really, except for maybe the you
know, the really traditional one. This

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is Latin masses and so forth.
But I still can't. I mean,

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I still cannot go to church and
anything but address and long sleeves, even

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though nobody would say a word if
I didn't obviously, And you know,

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there's just a sense of decorum that
maybe I'm a bit obsessive about that.

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That's what this is. So not
a Mennonite. All right, let's draw

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a veil on this and move on
to a new topic. All right.

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I wish you guys could have been
with me today here in Budapest, because

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I had a meeting. It was
one of those off the record Chatham House

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rules meetings with six or seven Americans
and six or seven Hungarians, several of

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them very highly placed, very interesting
people. I will tell you that the

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two people sitting next to me on
the American side were Michael Anton and David

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Goldman, and there were a couple
of other people. But you know,

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what do you need after me and
Michael and David Goldman? And so this

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guss on our favorite subject because we
talked a lot about the whole Ukraine business,

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and boy, there's some interesting observations
about things. There's this one guy

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in particular, and again, because
I have to respect the rules, I

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can't say much about him except to
say a person that takes seriously, not

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just because of the stations he's held, but also his obvious intelligence. And

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you know, he points out,
look, here's our position, and I'm

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paraphrasing here, this is a war
that neater country can win. I would

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prefer Ukraine to win, but realize
that if Russia is completely defeated, it

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wouldn't break my heart, but realize
that Russia will spend the next fifty years

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plotting revenge on everybody. And so
that's why he's saying, you know,

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we want to have a negotiated settlement. The other thing he said was we

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are getting tired of whenever we question
the European Union or the United States were

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immediately called Russian agents. And I
had to sympathize with him about that and

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anyway, but the other thing he
said was I thought you would enjoy,

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especially Lucretia is you know, the
American the wide administration is very hostile to

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the government in Hungary now orban in
the FIDEJ party. And the ambassador to

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Hungary is a gay man who was
here with his spouse, who makes a

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point of marching in LBGT parades that
spring up around the kind treat By the

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way, you don't see any pride
flags here in Budapest. And what this

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guy said was quite interesting. He
says, you know, that kind of

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ostentatious hostility from America is actually politically
useful to us here in Hungary. And

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I thought, oh, what an
interesting contrarian and probably correct. So you

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know, American hostility from a particular
presence not a bad thing for us here.

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And I thought, ah, isn't
that an interesting thing? And then

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he did. I think, rightly, chida United States for not thinking more

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seriously about the unintended consequences of our
disposition towards Ukraine, including most especially whether

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we're going to see it through.
He says, if you guys lose heart

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in this the way you did in
Afghanistan, the way you did in Vietnam,

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and at any pointed to a whole
bunch of things where we talk a

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big game but never intervene, like
Rwanda in the nineteen nineties and so forth.

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He says, you know, if
you guys walk away, we're still

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here with the border with Ukraine.
I thought, you know, those are

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all worthwhile, very worthwhile points that
don't get brought up in the American discussion,

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and we did not waste They did
not waste a lot of time deploring

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Joe Biden. It was just like, you know, we would all like

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Trump back or somebody else, but
there's no reason to dwell on or obsess

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about that. So anyway, it
was a very interesting morning. I'll have

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to say that. So what's your
question, Steve. It wasn't a question.

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I'd just like to give you that
little sit rep as they say,

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right, okay, well I think
it. I want you to know that

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I got contacted the other day.
They're having some distinguished speaker series and somebody

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noticed that it was all white males
who they speakers. So they asked me.

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They asked me to come on a
panel about Ukraine. I declare,

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I declined, yeah, do you
know what, It's not even worth it

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in the university setting. Can you
imagine? I do want to say,

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I want to bring up something a
little bit different the whole fight about the

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continuing resolution and money for Ukraine.
But if the government shuts down that idiot

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moron Affirmative Action appointee Secretary of Defense
we currently have has decided that, Yeah,

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soldiers, won't get paid, but
we will keep sending money to the

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Ukraine. Yeah. I love saying
that. What. Yeah, good lord,

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he really did. Yeah. And
he has the authority under under the

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law to do so. He can
he can decide which national security initiatives the

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military has to defend and keep those, keep those funded. And that's it.

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That's the one he's going to keep
funded. You know. It's just

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every day, every day gets worse. In my opinion, I hope that

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the movement too actually stop funding that. You say that the Hungarians are so

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worried about. I hope it takes
I hope it's one of the biggest issues

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in this next election. There was
a congressional testimony. Again I wish I

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could remember names. I need to
go to one of those things where they

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give my brain some sort of something
to help it. But anyway, the

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congressman who actually in Garland's testamenty which
I haven't even gotten to, shows the

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very famous video of Biden saying how
he forced the Ukrainian government to fire the

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00:24:26.880 --> 00:24:30.000
prosecutor and then says, you mean
and you know, Garland, God,

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what a slimy Oh. Anyway,
sorry, I Kenny, I don't have

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words but he shows it and he
says, Okay, what does this look

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like to you? Okay, I'll
answer for you, because you know,

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00:24:41.279 --> 00:24:45.200
Garland's so good at that knave smooth, he says, I'll answer for you.

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This is bribery and corruption that are
impeachable offenses. I yield my time.

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It was wonderful. I love that. Okay, now I can hear

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well, all right, go ahead, John, if you want to weigh

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in on so you know, Lucretian. I disagree about Ukraine. I think

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actually it's one of the few successes
for the Biden administration. I disagree with

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most of what they've done, but
I think I agree with what they've done

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in Ukraine. I do. I
don't see how the Secretary of Defense could

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say sending money to Ukraine is a
Remember, I think the tests is an

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essential government function, but not paying
the troops is permissible. I would think

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you'd have to keep the military running
even during a government shutdown. I don't

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understand how the Secretary Defense could find
that, but I think that. I

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mean, I like the fact that
the Ukraine were, as I said before,

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we're running down the Russian military no
costs. In American lives. It

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does cost us money. I can
see why the Hungarians don't like it.

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I think that the interesting thing,
and this is actually a question I have

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for you, Steve, about why
is Hungary becoming so important? Is I

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think it seems like you're seeing the
return of nation states and their interests in

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Europe. You know, they've they've
been kind of, you know, had

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this European Union living under the American
security umbrella. But the Eastern Europeans don't

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see it that way anymore, Like
this was a French German thing to underspend

359
00:26:12.039 --> 00:26:15.920
on defense and sort of free ride
off us and build a free market.

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But now I think the thing that
and this is the point of trying that

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it seems countertuitive, is that I
think Russia's invasion of Ukraine is what makes

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Hungry become more important. Reminds Poland
why their national interests is not the same

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as every other country in the European
Union, because they're on the front lines

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with Russia. And so maybe these
nations and the Eastern are the ones that

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love us more in fact, right
than the Western European nations. They're reminded

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now that the European Union is not
the solution, you know, they're they're

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not going to be saved by the
European Union from the next Russian attack.

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But what I what I would know
is why is Hungary becomes so such a

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focus of the American conservative movement?
You know, you got are going,

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00:27:00.960 --> 00:27:03.759
A lot of our friends have gone. You read about things being written there,

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people writing arguing about Hungarian domestic politics, which I can't remember happening in

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America ever. Why isn't it Poland, right, Why isn't it you know?

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You know, why why are we
so? Why are American conservatives so

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interested in Hungary right now? Yeah? Well, it predates the war.

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I mean, this goes back seven
eight years at least. And by the

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way, Poland no one hates the
Russians more than the polls, and they

377
00:27:29.920 --> 00:27:34.119
were very enthusiastic about backing Ukrainians until
last week. You know why is Ukraine

378
00:27:34.240 --> 00:27:40.039
is threatening to sue in some world
court. I forget which one Poland for

379
00:27:40.119 --> 00:27:45.279
not accepting Ukrainian wheat exports. There's
some well there, well, there's there's

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a lot of details. This I'm
skipping over because I haven't mastered them.

381
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But the point is is Poland like
and hungry also they want to protect their

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own farmers the same way we do
right on the French too and everybody else.

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And now suddenly Poland in the last
forty eight hours have said we may

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00:28:00.480 --> 00:28:03.680
withhold so we may withhold further military
aid from Ukraine, which shows this whole

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00:28:03.720 --> 00:28:07.920
thing is very fragile. Look,
the reason Hungary has become popular with the

386
00:28:07.920 --> 00:28:14.440
American conservatives as they have some fight
in them against well, first of all,

387
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against the secondar Left, against the
European Union, and well, and

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you know they're ah, this is
one something I talked about this morning this

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meeting, is you know, the
country has explicitly said we don't support gender

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transition. We don't, We're not
down to us LBGT stuff, which has

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brought the rath of the European Union
on them. Say we may withhold some

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00:28:34.920 --> 00:28:40.240
European Union funds because of that.
But they did sign on for the whole

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nets zero energy climate nonsense, and
I thought, imagine if they said no

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00:28:44.160 --> 00:28:47.079
to that, because the climate cult
is even worse than the identity cult,

395
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I think in a lot of ways. Anyhow, there's some fight here.

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00:28:49.319 --> 00:28:53.079
Now. Poland is actually a very
conservative country too, but they aren't as

397
00:28:53.119 --> 00:28:59.400
visibly fighting on the international stage the
way Hungary is with Victor Orbon and all

398
00:28:59.400 --> 00:29:03.839
the other By the way, I
can't believe the level of activity here.

399
00:29:03.279 --> 00:29:07.880
Every day that i'm here, there's
three or four different conference, those panels,

400
00:29:07.000 --> 00:29:10.920
lectures going on at all the different
nodes here. It's not just the

401
00:29:11.000 --> 00:29:15.880
danue Do Institute where I'm a fellow, or the Matthias Karbenis Collegium, or

402
00:29:15.960 --> 00:29:18.559
the National Public Service University where Lucretian
and I are both giving a paper a

403
00:29:18.599 --> 00:29:22.480
week from now U and three or
four other places. It's like the DC

404
00:29:22.680 --> 00:29:26.799
scene, whereas you know, the
thing tanks every day have tons of panels

405
00:29:26.799 --> 00:29:29.640
and lectures and discussions, and most
of them are boring. I'm the ones

406
00:29:29.680 --> 00:29:32.759
here are you just can't believe the
level of activity here, which I don't

407
00:29:32.759 --> 00:29:37.640
think is happening in any other European
city. So it's astounding. It's the

408
00:29:37.079 --> 00:29:40.480
well, I'll stop there. I
can make up a whole bunch of analogies,

409
00:29:40.519 --> 00:29:45.079
but it's it's quite it's quite astonishing
to me. So that's why there's

410
00:29:45.079 --> 00:29:49.160
a fight here going on. Add
I wish some of our politicians had as

411
00:29:49.240 --> 00:29:56.240
much fight as the people here do. So that's all Lucretius here in a

412
00:29:56.240 --> 00:30:00.400
week, you know, and so
our next podcast prepared the Hungarians for this

413
00:30:00.480 --> 00:30:07.359
experience. I have. Oh,
they're going to love her, you know.

414
00:30:07.599 --> 00:30:15.519
Anyway, something we've been wanting to
talk about for quite a while is

415
00:30:15.559 --> 00:30:22.039
the persistent legal issue of qualified immunity, and something lucreation I read every week

416
00:30:22.079 --> 00:30:23.960
and I think maybe John, you're
starting to read it. Two is the

417
00:30:25.200 --> 00:30:29.200
short Circuit dispatches from the Institute for
Justice. It's always about what's happening at

418
00:30:29.200 --> 00:30:32.599
the appellate court level, always written
in a very sprightly manner, and I'll

419
00:30:32.640 --> 00:30:34.720
try to remember the link to it
in the show notes. And about half

420
00:30:34.759 --> 00:30:37.880
of these cases at the at the
appellate level, or maybe a half,

421
00:30:37.880 --> 00:30:42.759
but every week two or three at
least are about instances where some government official,

422
00:30:44.000 --> 00:30:48.200
often a police officer, but sometimes
a trustees of a university and other

423
00:30:48.240 --> 00:30:53.640
things are essentially exempted I guess you'd
say from legal liability because of the doctrine

424
00:30:53.640 --> 00:31:00.000
of qualified immunity, which I suggest
is a derivative of the old fashioned idea

425
00:31:00.039 --> 00:31:03.920
of sovereign immunity, which traces back
to the mine right of kings. I'll

426
00:31:03.960 --> 00:31:08.079
leave that aside for now, John, why don't you go first? Because

427
00:31:08.640 --> 00:31:14.519
as I understand it, this was
actually a judicially created category that mushroomed out

428
00:31:14.519 --> 00:31:17.920
of control. And maybe now like
the Chevron doctrine, is being nibbled away

429
00:31:17.960 --> 00:31:19.279
at. I'm not quite clear of
that, and I know Lucretia has a

430
00:31:19.279 --> 00:31:22.039
lot of thoughts on this, and
then I'll try and clean up whatever messages

431
00:31:22.079 --> 00:31:26.039
you guys make. Yeah, you're
your right, Steve. The way you

432
00:31:26.079 --> 00:31:33.519
describe it being judicially created, there's
no provision in the Constitution which discusses immunity

433
00:31:33.559 --> 00:31:40.920
at all. So there's so in
the immunity is you suffer some kind of

434
00:31:40.960 --> 00:31:47.200
harm from a government officer. Most
of the cases are claims of police brutality,

435
00:31:47.240 --> 00:31:52.759
for example, or police searching you
without a warrant, something like that,

436
00:31:52.200 --> 00:31:57.359
And so some officials have what we
call absolute immunity, like they actually

437
00:31:57.359 --> 00:32:06.400
can never be So this includes judges
and prosecutors and the president actually for this

438
00:32:06.480 --> 00:32:12.039
is because it is for their official
actions. So people short of that government

439
00:32:12.039 --> 00:32:15.400
officials who aren't judges, prosecutors,
are the president, they generally live under

440
00:32:15.680 --> 00:32:22.599
qualified immunity, which means you can
sue them in their personal This is in

441
00:32:22.680 --> 00:32:24.839
their personal capacities, you can sue
them for money. Right, this is

442
00:32:24.880 --> 00:32:31.319
just immunity from lawsuits for money for
the damages you suffered if but only if

443
00:32:31.319 --> 00:32:38.039
they violated what's called a clearly established
right. So there's a variety of different

444
00:32:38.079 --> 00:32:43.759
reasons people have proposed for this doctrine, which, as you said, does

445
00:32:43.759 --> 00:32:47.400
not appear in any law. This
is just totally judicially created. You know.

446
00:32:47.440 --> 00:32:52.880
One is courts are reluctant to impose
money damages, you know, demands

447
00:32:52.920 --> 00:32:58.559
for money on cities, states,
and even the federal government because it interferes

448
00:32:58.599 --> 00:33:00.640
with their treasury. They don't want
to bank grew up the city. That's

449
00:33:00.680 --> 00:33:07.319
one claim I think. Actually,
the more sophisticated defense of official immunity is,

450
00:33:07.480 --> 00:33:13.240
if you think about this, this
is really about creating incentives to stop

451
00:33:13.279 --> 00:33:20.200
the government from violating your rights in
the future. Right. That's more important

452
00:33:20.519 --> 00:33:23.799
in a way for the legal system
than making up for constitutional violations of the

453
00:33:23.839 --> 00:33:28.480
past. If you think about,
say, police searching your house without a

454
00:33:28.519 --> 00:33:30.839
warrant. Yes, it's bad that
they search your house with a warrant,

455
00:33:30.960 --> 00:33:34.480
but what you really want to do
is stop them from doing it in the

456
00:33:34.480 --> 00:33:38.680
future. In large numbers and so
some scholars have said, you know,

457
00:33:38.720 --> 00:33:44.640
money damages against the individual police officer, that's not going to really stop it

458
00:33:44.839 --> 00:33:47.480
in the future. What's going to
stop it in the future is right putting

459
00:33:47.480 --> 00:33:51.279
in a junct, you know,
putting an order on the government don't do

460
00:33:51.319 --> 00:33:55.400
this again, maybe imposing costs on
the government. But do you want to

461
00:33:55.480 --> 00:33:59.960
really go after the individual police officer. Does that really make a difference.

462
00:34:00.359 --> 00:34:06.440
That's I myself. I'm really kind
of torn about it because I do think

463
00:34:06.440 --> 00:34:09.800
that if there were no official immunity, I think it would make a big

464
00:34:09.880 --> 00:34:13.880
difference in the way our police police
officers are. I think it'd be hard

465
00:34:13.920 --> 00:34:17.280
to recruit police officers. I think
that social problems we have right now is

466
00:34:17.320 --> 00:34:22.639
policing. On the other hand,
it's hard to accept this doctrine that's totally

467
00:34:22.719 --> 00:34:28.639
judicially created. Well, you read
these cases of where a police officer has

468
00:34:29.000 --> 00:34:31.559
maybe busted down a door the wrong
house. They didn't actually read the warrant

469
00:34:31.559 --> 00:34:35.679
correctly, so they made a mistake, and then in the course of making

470
00:34:35.719 --> 00:34:38.360
that mistake, they'll do something really
horrible like trash a house, shoot the

471
00:34:38.400 --> 00:34:44.760
person's dog, sometimes shoot a person
who's totally innocent, and there and no

472
00:34:45.079 --> 00:34:50.079
liability or recourse is possible because they
enjoy qualified immunity. I think that's where

473
00:34:50.119 --> 00:34:52.599
you say, wait a minute.
By the way, I take your point

474
00:34:52.599 --> 00:34:57.519
that if we're not having enough trouble
recruiting police right now, I can I

475
00:34:57.559 --> 00:34:59.719
can see why that would be a
problem. But it does seem to me

476
00:34:59.800 --> 00:35:02.239
that the government gets away with a
way too much under this doctrine lucretia.

477
00:35:02.960 --> 00:35:07.840
So wow, that so many things. First of all, I don't agree

478
00:35:07.880 --> 00:35:10.639
with John that the whole point and
I think this is a horrible mistake on

479
00:35:10.679 --> 00:35:15.039
the part of the Supreme Court,
and you see this in the creation of

480
00:35:15.079 --> 00:35:19.960
the exclusionary rule, for instance.
I don't think that the Constitution is there

481
00:35:20.000 --> 00:35:29.599
to be to impose a kind of
judicial judicial what we call it, behavioral

482
00:35:29.920 --> 00:35:35.360
modification of law enforcement officials. I
think it's there that the whole point of

483
00:35:35.360 --> 00:35:39.119
the Bill of Rights is to protect
individual rights. Meaning if I am the

484
00:35:39.159 --> 00:35:51.320
subject of egregious prosecution, prosecution,
egregious police action, the Constitution protects me.

485
00:35:51.960 --> 00:35:55.639
It's not there to make sure that
some future generation doesn't get violated with

486
00:35:55.679 --> 00:36:00.880
the same sort of constitutional violations.
So that pot let's put that put that

487
00:36:00.920 --> 00:36:05.159
point out there first. And I
think that because John likes to think of

488
00:36:05.960 --> 00:36:08.960
the Constitution as what the judges say
it is, he doesn't look at it

489
00:36:09.000 --> 00:36:15.360
the same way. You know that
what what are we gonna say nothing.

490
00:36:15.400 --> 00:36:17.239
I'm just saying, well, that's
throwing go ahead, keep going well because

491
00:36:17.239 --> 00:36:20.480
he always says that. I mean, you know, why do we not

492
00:36:20.840 --> 00:36:24.360
allow Abbott to police the border?
Because the Supreme Court said so, even

493
00:36:24.360 --> 00:36:30.039
though the Constitution doesn't so anyway,
So that's that's the first thing. Did

494
00:36:30.039 --> 00:36:34.280
you catch that, John, or
were you I just I slammed you,

495
00:36:34.360 --> 00:36:37.559
John? Oh no, I heard
you. Luckily, wireless earphones allow you

496
00:36:37.559 --> 00:36:40.559
to attack me wherever I am in
the room. Okay, okay, So

497
00:36:40.559 --> 00:36:44.840
so put that decide. You can
answer that in a moment. The second

498
00:36:44.880 --> 00:36:49.239
thing is is that when you say
it's judicially created. Uh. You guys

499
00:36:49.280 --> 00:36:52.519
probably have forgotten this already, but
I sent you an article about a law

500
00:36:52.559 --> 00:37:00.320
review article where there's a law professor
who argues I have to get his name.

501
00:37:00.400 --> 00:37:08.360
Sorry that in fact, when the
clerk put the ninth eighteen let me

502
00:37:08.400 --> 00:37:13.159
get it right, the eighteen seventy
one Civil Rights Act, from which this

503
00:37:13.559 --> 00:37:17.440
concept of qualified immunity comes. The
whole point of it was actually to provide

504
00:37:17.519 --> 00:37:24.440
remedies for especially the newly freed slaves
and and and blacks in the South,

505
00:37:24.519 --> 00:37:30.960
to be able to have remedies against
overly zealous law enforcement, shall we call

506
00:37:30.000 --> 00:37:37.119
it, And that what's actually happened
is that the entire that when what Congress

507
00:37:37.119 --> 00:37:40.480
passed and what made it into the
law are two different things, and that

508
00:37:40.599 --> 00:37:45.760
the courts have ignored that part that
should have that didn't make it into the

509
00:37:45.840 --> 00:37:50.360
law, and would would have actually
reduced to a very great extent the ability

510
00:37:50.400 --> 00:37:54.679
to use qualified immunity in any case
except for I'll oversimplify this, where law

511
00:37:54.960 --> 00:38:00.480
law enforcement is acting in good faith. Rather you have to prove that you

512
00:38:00.519 --> 00:38:05.840
know that that they didn't violate any
specifically that they didn't intend to violate any

513
00:38:05.920 --> 00:38:08.280
rights. And it's just it's nonsense. And so I actually think the whole

514
00:38:08.280 --> 00:38:13.599
thing should be overturned, and they
should. They should, and Congress should

515
00:38:13.639 --> 00:38:19.119
pass legislation that fixes it. Not
that we just you know, turned I

516
00:38:19.159 --> 00:38:22.360
agree, we you know, officers, it's very difficult to recruit for law

517
00:38:22.480 --> 00:38:27.880
enforcement out there. But I would
also argue that one of the reasons for

518
00:38:27.920 --> 00:38:32.840
that is that the reputation of police
officers has also suffered. I get that

519
00:38:32.960 --> 00:38:37.920
the actual things that happened to law
enforcement officers because of black lives matters and

520
00:38:37.960 --> 00:38:42.159
the possibility of qualified immunity going away, I'll get all that. I'm not

521
00:38:42.199 --> 00:38:45.719
disagreeing with that, But I also
think that law enforcement used to be a

522
00:38:45.800 --> 00:38:52.960
much more respected activity than it is
now. And part of the reason for

523
00:38:52.000 --> 00:38:57.239
that was because you could have you
could look at these people as acting with

524
00:38:57.280 --> 00:39:00.920
integrity except for those who didn't,
you know, except for those who didn't.

525
00:39:00.000 --> 00:39:06.960
And you remove from law enforcement a
large those who don't act with integrity,

526
00:39:07.039 --> 00:39:10.320
who don't act to look out for
the individual rights of suspects, etc.

527
00:39:12.079 --> 00:39:15.480
And you couldn't start restoring law enforcement
to the place it used to hold

528
00:39:15.519 --> 00:39:20.679
in our society. Well, okay, I got to clarify one tasting,

529
00:39:20.800 --> 00:39:24.639
but I didn't make ident state at
the beginning. And it does address your

530
00:39:24.679 --> 00:39:29.880
point of sovereign immunity, which is
this all arises in the context of the

531
00:39:29.880 --> 00:39:35.280
fourteenth Amendment, and so in the
fourteenth Amendment, so generally the governments have

532
00:39:35.400 --> 00:39:38.559
sovereign immunity, which means you can't
even sue the government for money, And

533
00:39:38.599 --> 00:39:44.039
so when the Fourteenth Amendment was passed, which applied right the Bill of Rights

534
00:39:44.039 --> 00:39:47.519
to the states and allow the passage
of these civil rights acts what we call

535
00:39:47.599 --> 00:39:51.519
Section nineteen eighty one, Section nineteen
eighty three. These are parts of the

536
00:39:51.639 --> 00:39:58.360
US Code which allow people to sue
states for violating their constitutional rights. Then

537
00:39:58.400 --> 00:40:01.199
when the courts try to figure out
how how does that work with sovereign immunity,

538
00:40:01.239 --> 00:40:04.960
The rule that the court's created,
which is what we're talking about,

539
00:40:05.039 --> 00:40:10.280
is you can still if someone busts
into Lucretia's house and right searches without a

540
00:40:10.280 --> 00:40:15.800
warrant causes damage, Lucretia can still
sue the government. She could still sue

541
00:40:15.840 --> 00:40:19.400
the state of Arizona. She can
still sue the city. What she can't

542
00:40:19.440 --> 00:40:23.760
do under qualified immunity is sue the
individual officer. So that's that's the difference.

543
00:40:23.800 --> 00:40:30.639
So it's a weird you're overriding sovereign
immunity the sproat, but qualified to

544
00:40:30.719 --> 00:40:34.960
me where you're protects the individuals.
So you could so for example, the

545
00:40:35.000 --> 00:40:38.760
famous cases, I think it's called
it's Nixon versus Fitzherald versus Nix, Nix

546
00:40:38.800 --> 00:40:45.039
and versus Fitzgerald Nixon fires some individual
government officer. The individual government officer can

547
00:40:45.039 --> 00:40:47.639
always sue the federal government. So
you you know, I should be getting

548
00:40:47.639 --> 00:40:52.440
money back. But what he can't
do is sue Nixon. And so the

549
00:40:53.360 --> 00:40:59.440
I really worry what would happen if
this were applied today. I mean,

550
00:40:59.440 --> 00:41:05.239
if the creature work to one and
run win and sovereign imman qualified meaning were

551
00:41:05.239 --> 00:41:07.719
overturned by Congress or the courts got
rid of it. Because the other point

552
00:41:07.800 --> 00:41:13.760
is there's no constitutional requirement to have
this immunity. The judges just created it

553
00:41:13.800 --> 00:41:15.760
because they said, oh, we
think Congress would have wanted it this way.

554
00:41:15.800 --> 00:41:22.719
Congressman over always overrule official immunity.
Think about how hard it would be

555
00:41:22.880 --> 00:41:28.360
to get anyone to serve in the
police, I think, or EMT or

556
00:41:28.440 --> 00:41:30.760
first responders, you know people,
And this is I should have made clear.

557
00:41:31.119 --> 00:41:35.719
This is one of the defenses of
sovereign meties that a lot of what

558
00:41:36.519 --> 00:41:39.320
people like first responders have to do
is in this kind of gray area.

559
00:41:39.880 --> 00:41:43.760
Like Steve said, oh, you're
a police officer, you shoot someone,

560
00:41:43.840 --> 00:41:47.519
maybe you kill them. The standard
is reasonableness right under the circumstances. If

561
00:41:47.519 --> 00:41:53.840
you're a police officer and you might
have your financial livelihood ruined because people after

562
00:41:53.880 --> 00:41:59.119
the fact disagree with you about what
was reasonable under the totality of the circumstances.

563
00:42:00.079 --> 00:42:02.039
Why would you why would you ever
sign up to do that? Why

564
00:42:02.079 --> 00:42:07.760
are we not already there with the
you know, the Minnesota case with George

565
00:42:07.760 --> 00:42:10.719
Floyd and right, No, no, that's right. I mean now that

566
00:42:10.760 --> 00:42:15.039
those are criminal prosecutions of people,
which is where I'm sorry, it's no.

567
00:42:15.159 --> 00:42:20.280
I agree, but this would just
come make it even much more and

568
00:42:20.320 --> 00:42:22.480
worse, I think for our police
officers. And you all said we're also

569
00:42:22.519 --> 00:42:27.639
going to let people right. At
least I think with things like George Floyd,

570
00:42:27.800 --> 00:42:30.840
at least you have das who are
elected. They're choosing the cases to

571
00:42:30.880 --> 00:42:35.519
bring. Right, anybody could sue
the you know, bring these cases and

572
00:42:35.559 --> 00:42:37.199
say I want money from that police
officer because I don't like the way you

573
00:42:37.679 --> 00:42:40.480
mean. Well, no, I
may have mistated it a little bit.

574
00:42:40.519 --> 00:42:45.440
I mean, look, I think
there's been some of these cases I think,

575
00:42:45.639 --> 00:42:52.280
unless I've got them wrong, where
qualified immunity was extended to eliminating liability

576
00:42:52.360 --> 00:42:55.199
from the city that hired the police
officer. I completely agree that we don't

577
00:42:55.239 --> 00:43:00.960
want to hold the individual police officer
necessarily liable anymore than I hire the FedEx

578
00:43:00.079 --> 00:43:06.599
driver personally liable for an auto crash
unless they're drunk or negligent grossly. But

579
00:43:06.639 --> 00:43:09.960
instead it's FedEx's responsibility. I think
it should be the local government's, local

580
00:43:10.000 --> 00:43:15.840
government, any level government's responsibility when
something goes badly wrong and damages someone's rights

581
00:43:15.840 --> 00:43:22.719
and property without just cause. Now, so that's where I think things have

582
00:43:22.760 --> 00:43:24.719
gotten out of balance, and I
think that extends to and here's where I'd

583
00:43:24.719 --> 00:43:30.480
like to push this ultimately, is
I would like to see a world in

584
00:43:30.519 --> 00:43:37.519
which when a bureaucracy trample somebody's business
interest and property rights for just pure bureaucratic

585
00:43:37.559 --> 00:43:40.920
power play, I'd like to see
that bureaucracy penalized financially and maybe some people

586
00:43:42.039 --> 00:43:46.920
fired. Those are two separate actions, I think. But right now,

587
00:43:47.679 --> 00:43:51.920
and so this goes back to the
abstractness of it, I think I don't

588
00:43:51.920 --> 00:43:53.159
have lock second treat as handy,
and I haven't read it for a while.

589
00:43:53.159 --> 00:43:58.079
But isn't the original reason of sovereign
immunity And you mentioned I think legitimate

590
00:43:58.119 --> 00:44:01.519
cases, prosecutors, the president,
people who have to make decisions and govern

591
00:44:01.559 --> 00:44:07.559
a country, and they might make
mistakes and we're not going to wakes and

592
00:44:07.599 --> 00:44:12.239
they will of course, and you
know, but the problem has been,

593
00:44:12.320 --> 00:44:15.199
you know, over the very long
historical horizon, is we didn't like the

594
00:44:15.239 --> 00:44:20.199
fact that the king would always claim
that, you know, the king's word

595
00:44:20.280 --> 00:44:22.599
is law, and you know,
the king can do no wrong, and

596
00:44:22.760 --> 00:44:27.239
like people in fallacy, almost right, when there was actually a sensible reason

597
00:44:27.360 --> 00:44:30.840
why you would not assign liability anytime
a prince that's the word I think Locke

598
00:44:31.000 --> 00:44:35.960
uses, makes a mistake. Uh
And and you know, ultimately Locke says,

599
00:44:36.000 --> 00:44:37.519
it'll be the people who will judge
this. You can't draw a clear

600
00:44:37.599 --> 00:44:43.960
legal standard against the prince's action.
That's sort of a popular sovereignty argument.

601
00:44:44.320 --> 00:44:47.679
But at the point is I guess
Congress won't do this, of course because

602
00:44:47.719 --> 00:44:51.880
they couldn't get their act together.
But Congress ought to write some clear statutes

603
00:44:51.920 --> 00:44:58.000
clearing us up, I think.
And we just want to add one thing,

604
00:44:58.320 --> 00:45:06.559
sort of a manic The problem I
have is that my own position about

605
00:45:06.599 --> 00:45:12.519
qualified immunity is probably the result of
you know, these horrendous cases where you

606
00:45:12.599 --> 00:45:16.599
just see officers, you see prison
guards, you see others acting in just

607
00:45:17.000 --> 00:45:22.239
such an egregious manner. And then
you see the courts under the doctrine of

608
00:45:22.320 --> 00:45:28.199
qualified immunity not holding anyone accountable for
it anyone whether you know, and so

609
00:45:28.960 --> 00:45:34.039
you know, I don't. I've
never had a study of the actual widespread

610
00:45:34.079 --> 00:45:37.000
impacts of qualified immunity in either direction, because I think that that John,

611
00:45:37.400 --> 00:45:43.679
you probably wouldn't disagree with me when
I say that that the qualified immunity also

612
00:45:43.800 --> 00:45:50.800
does protect people who act truly egregiously
against the individual rights of suspects or you

613
00:45:50.840 --> 00:45:54.679
know, incarcerated persons or whatever it
might be. I think you have to

614
00:45:54.719 --> 00:46:00.840
see there's two sides to what qualified
immunity does, the outcomes of immunity,

615
00:46:00.880 --> 00:46:06.719
and you know, the question is
if it's really not, if it's judicially

616
00:46:06.760 --> 00:46:09.360
created doctrine, and if there's an
argument to say that not only should it

617
00:46:09.400 --> 00:46:15.360
not be judicially created doctrine. But
they got it exactly wrong. My understanding

618
00:46:15.440 --> 00:46:17.719
is that the Supreme Court is actually
going to take this case up AT's a

619
00:46:17.840 --> 00:46:22.639
similar case up. At some point
you see both Clarence Thomas and Sonya Sotomayor,

620
00:46:23.039 --> 00:46:30.440
who getting more and more and more
uncomfortable with this doctrine of qualified immunity

621
00:46:30.559 --> 00:46:35.039
and the extent to the extent to
which it is often applied in state and

622
00:46:35.880 --> 00:46:38.960
the district federal courts. I mean, do you see any evidence of that,

623
00:46:39.039 --> 00:46:45.960
John, I would be surprised if
this court actually were to overrule qualified

624
00:46:45.000 --> 00:46:49.320
immunity or sovereign immunity. Although there
are a lot of scholars who think they

625
00:46:49.360 --> 00:46:53.519
should do both, they should reverse
on both issues. It is so here

626
00:46:53.719 --> 00:46:57.320
here. I think here's one way
to think of it. I think we

627
00:46:57.679 --> 00:47:00.239
maybe come to agreement on this is, you know, this is a human

628
00:47:00.360 --> 00:47:04.239
system. It's going to have errors
in it, right, policing, whatever

629
00:47:04.320 --> 00:47:07.480
prosecution there's going to be. And
so the question is how do you correct

630
00:47:07.480 --> 00:47:13.119
the errors? You focus our money
damages, you know, paying people money

631
00:47:13.159 --> 00:47:17.880
for the constitutional harms. The best
way to solve the errors or is trying

632
00:47:17.880 --> 00:47:21.639
to figure out some you know what
we call injunctive relief, you know,

633
00:47:22.079 --> 00:47:25.679
future looking, you know, don't
do this anymore or adopt this policy in

634
00:47:25.719 --> 00:47:31.400
the future. The best way to
cure constitutional violations by a system filled with

635
00:47:31.480 --> 00:47:37.480
human beings who make errors. Isn't
that the whole point of the exclusionary rule?

636
00:47:37.000 --> 00:47:39.639
Yeah, yeah, no, this
is actually so, this is the

637
00:47:39.639 --> 00:47:44.039
field of constitutional remedies, which I
hope is only taught in law school,

638
00:47:44.599 --> 00:47:47.000
but the whole way think about all
the time, it is like, how

639
00:47:47.000 --> 00:47:52.920
do you fix the You know,
you've already accepted that the government violated someone's

640
00:47:52.960 --> 00:47:54.800
rights or someone got harmed. It's
the questions how do you what does a

641
00:47:54.880 --> 00:47:58.920
court do to make up for it? And it's we tend to think of,

642
00:47:59.000 --> 00:48:00.880
oh, give the money, but
actually the more complicated thing is how

643
00:48:00.880 --> 00:48:06.679
do you prevent the system from repeating
the harms over and over again. Second

644
00:48:06.679 --> 00:48:12.119
point I'd make is again Congress can
overrule the system. Steve you did say

645
00:48:12.159 --> 00:48:15.519
I wish Congress would pass a off
fixing all of this. There was I

646
00:48:15.519 --> 00:48:22.480
think remember after the George Floyd and
during the Black Lives Matter controversies, didn't

647
00:48:22.480 --> 00:48:29.360
Tim Scott actually try to reach an
agreement with Democrats to put forward a bipartisan

648
00:48:29.480 --> 00:48:32.599
bill about policing. And I think, if I remember, the sticking point

649
00:48:32.760 --> 00:48:38.199
was qualified immunity. Democrats would really
want to override the doctrine in Toto,

650
00:48:38.360 --> 00:48:43.639
and I think Tim Scott was unwilling
to go there, and that's what sunk

651
00:48:44.079 --> 00:48:50.519
the bipartisan police reform bill in Congress. In twenty twenty. So there's a

652
00:48:50.559 --> 00:48:53.679
real clear divide on this. It's
interesting it doesn't break down in the usual

653
00:48:54.079 --> 00:49:01.000
ways because Lucretia is being very libertarian
on this one and I'm being conservative on

654
00:49:01.039 --> 00:49:07.320
this one, and that I'm just
started defending the I think here's what I'll

655
00:49:07.320 --> 00:49:08.679
go back to this point again,
John, and that is that there's a

656
00:49:08.719 --> 00:49:14.920
difference between a judicial remedy and a
constitutional remedy for violation of rights. And

657
00:49:15.960 --> 00:49:20.280
I think that all the evidence,
the more and more evidence that comes out

658
00:49:20.320 --> 00:49:24.280
about qualified immunity as a judicially created
remedy is it's a bad remedy. It's

659
00:49:24.280 --> 00:49:30.239
a bad remedy. And it had
again, the whole concept of it had

660
00:49:30.280 --> 00:49:32.960
its origin in the eighteen seventy one
Civil Rights Act after the passage of the

661
00:49:34.000 --> 00:49:37.480
fourteenth Amendment, and it was designed
to do exactly the opposite of what it

662
00:49:37.519 --> 00:49:42.920
has done, which it was designed
to override, you know, state common

663
00:49:43.000 --> 00:49:50.119
law problems with granting immunity to officers
who were you know, violating, in

664
00:49:50.159 --> 00:49:52.880
many cases in a violent way,
the rights of newly freed slave. So

665
00:49:53.320 --> 00:49:59.280
at some point if the court under
the doctrine of originalism, John goes back

666
00:49:59.320 --> 00:50:02.599
to the fourteenth Amendment and to the
passage of that eighteen seventy one Civil Rights

667
00:50:02.639 --> 00:50:07.719
Act, and follows through to where
it takes them, they will they will

668
00:50:07.760 --> 00:50:13.079
have to conclude that courts have done
exactly the wrong thing with respect to qualified

669
00:50:13.079 --> 00:50:15.920
immunity to the extent that they based
it on that eighteen seventy one Civil Rights

670
00:50:15.920 --> 00:50:19.920
Act. There's my prediction, right, Well, well, let's get out

671
00:50:19.960 --> 00:50:22.960
with this thought, which is maybe
there are signs or are there signs that

672
00:50:23.000 --> 00:50:28.199
the judiciary is starting to have second
thoughts on cases they're reviewing now. So

673
00:50:28.320 --> 00:50:30.880
one of the cases this week is
one that I've followed for a while in

674
00:50:30.920 --> 00:50:35.960
the news, which was a professor
of music at the University of North Texas,

675
00:50:36.039 --> 00:50:39.920
which seems to be an especially bad
college, even for Texas, and

676
00:50:39.960 --> 00:50:45.519
they demoted this fellow because he's said
the wrong things about race. And he

677
00:50:45.639 --> 00:50:51.079
sued the Board of Regents for First
Amendment violations respecting as academic freedom and free

678
00:50:51.079 --> 00:50:53.280
speech rights. And they claim,
no, you can't sue us sovereign immunity,

679
00:50:53.360 --> 00:50:58.360
And the Fifth Circuit this week said
nope, you don't get qualified immunity.

680
00:50:58.679 --> 00:51:01.480
The suit can go forward. And
news accounts I read that they may

681
00:51:01.559 --> 00:51:05.719
or may not have this right,
but to suggest that now the Regents could

682
00:51:05.760 --> 00:51:09.760
be personally liable for a damage claim
and a successfully prosecutor to the courts.

683
00:51:09.760 --> 00:51:14.920
So we'll see. But I thought
that seems like the kind of case that

684
00:51:14.960 --> 00:51:16.440
four or five years ago it would
have been a slam dunk that yeah,

685
00:51:16.559 --> 00:51:20.920
regents are right, they can't be
sued, and yet now it's going to

686
00:51:21.000 --> 00:51:23.360
go forward. So I like this. Any last word on this, John,

687
00:51:24.920 --> 00:51:30.480
No? Okay, Well, then
let's let's let's go to our round

688
00:51:30.559 --> 00:51:32.880
robin at the end. Do you
have a camalism of the week for us,

689
00:51:34.159 --> 00:51:37.000
John, or do you have the
Battle on Beach? Okay? Oh?

690
00:51:37.039 --> 00:51:38.440
Good? Do I have a good
one? And it appeals to me

691
00:51:38.480 --> 00:51:43.360
and Steve not lucretiav. Since Steve
and I are fans of science fiction.

692
00:51:44.280 --> 00:51:50.960
Right good in particular. So I
like this headline of the person who reported

693
00:51:51.000 --> 00:51:55.079
the communism. It says Kamala Harris
leaves Earth's orbit with latest riff on space

694
00:51:55.159 --> 00:52:00.360
cooperation. Now part of the problem
I have. I do sympathize with her

695
00:52:00.400 --> 00:52:04.880
at this point, and that this
shows you how tedious being vice president can

696
00:52:04.880 --> 00:52:09.599
be, is that she went to
discuss space cooperation with the Prime Minister of

697
00:52:09.639 --> 00:52:15.719
Mongolia. I don't understand really what
we're doing with Mongolia in the area of

698
00:52:15.719 --> 00:52:20.519
space cooperation, but nevertheless, here's
what she said today. I am pleased

699
00:52:20.519 --> 00:52:23.119
to announce that the next steps in
our work together will be about further expanding

700
00:52:23.119 --> 00:52:27.679
our partnership. In particular, we
will discuss the work that we will do

701
00:52:27.760 --> 00:52:31.800
together to strengthen our space cooperation.
You and I spoke briefly about the beginnings

702
00:52:31.840 --> 00:52:35.960
of the next era and for you
what that means in terms of your leadership

703
00:52:35.960 --> 00:52:38.960
and your vision for the future,
and certainly strengthening our space cooperation be a

704
00:52:38.960 --> 00:52:44.199
part of that agenda, including of
course our space cooperation to think about how

705
00:52:44.199 --> 00:52:52.239
we strengthen the economic prosperity and development
of our nations. I just lose trying

706
00:52:52.880 --> 00:53:01.800
to understand that two things we never
got to today, and I'm not I

707
00:53:01.800 --> 00:53:05.719
don't want to discuss some of the
F thirty five thing that you guys were

708
00:53:05.760 --> 00:53:07.719
so fascinated by. Well, right, it was just funny, right,

709
00:53:07.800 --> 00:53:14.360
yeah, so bad luck. Military
announces lost F thirty five was carrying Epstein

710
00:53:14.440 --> 00:53:22.119
client list or military personnel seen wandering
Forrest pressing button on F thirty five Key

711
00:53:22.119 --> 00:53:28.719
Farm. That's pretty good. Okay, So then just a little bit more

712
00:53:28.760 --> 00:53:31.840
on the feederment thing, aging senators
show up to work in their hospital gowns

713
00:53:31.880 --> 00:53:37.719
after dress code relaxed. Yeah,
that was a good one. Yeah,

714
00:53:37.719 --> 00:53:43.440
we didn't. We also didn't talk
about Menendez. Yeah, I mean,

715
00:53:43.960 --> 00:53:47.480
I love the gold bars thing.
You know that, I was in my

716
00:53:47.599 --> 00:53:52.000
house. Who knew he was a
gold buck hard money man. Ron Paul

717
00:53:52.039 --> 00:54:00.719
will approve of that. And ag
Garland we didn't even talk about except for

718
00:54:00.800 --> 00:54:06.840
my one comment about the congressman who
held it Garland's testimony, but heji Garland's

719
00:54:06.840 --> 00:54:13.639
impartiality questioned due to conspicuous kill Trump
tattoo on forehead. No, we just

720
00:54:13.639 --> 00:54:16.239
skipped the law of things. We
didn't do a sack dance on the inevitable

721
00:54:16.320 --> 00:54:22.480
and predictable collapse of Abraham Candy up
at Boston University. You know about that,

722
00:54:22.840 --> 00:54:27.320
Well you don't. Oh no,
it's the money has disappeared. The

723
00:54:27.400 --> 00:54:32.000
money has disappeared like an F thirty
five John Right. I mean I could

724
00:54:32.000 --> 00:54:37.719
have predicted this when it started three
years ago. Blash mob robbery. Yeah,

725
00:54:37.800 --> 00:54:40.920
well, anyway, it's the funny
thing, is well, I mentioned

726
00:54:40.960 --> 00:54:45.760
the thing. Okay, I was
just gonna say that they were going to

727
00:54:45.800 --> 00:54:50.880
start a database on racist on collecting
racist incidents. That was one of his

728
00:54:50.960 --> 00:54:55.280
big initiatives, and it lasted for
about three months and went defunct after about

729
00:54:55.320 --> 00:55:02.280
three months. Maybe there's just not
enough racist incidents for old Ibram to catalog.

730
00:55:02.320 --> 00:55:05.920
I don't know. But anyway,
basically he spent all the money himself.

731
00:55:06.000 --> 00:55:09.199
And yeah, I mean Henry Rogers
his real name. One interesting thing

732
00:55:09.199 --> 00:55:12.559
I'm tracking and I'm going to try
and write something about it if i have

733
00:55:12.639 --> 00:55:16.400
time, which I won't, is
the left is rushing to put distance between

734
00:55:16.400 --> 00:55:20.119
themselves and him and say, you
know, he's really not a pre eminent

735
00:55:20.159 --> 00:55:23.199
critical race theory scholar, you know, and really there they are throwing him

736
00:55:23.239 --> 00:55:28.400
under the bus so fast, it's
amazing, so surprise, surprise, and

737
00:55:28.519 --> 00:55:30.800
you know what. The other thing
I was going to mention that we didn't

738
00:55:30.800 --> 00:55:32.239
talk about, don't. I'm now, but I think we should pick it

739
00:55:32.320 --> 00:55:37.760
up again is what I'm seeing more
of, and of course experiencing more of

740
00:55:37.840 --> 00:55:45.320
at the university is how are we
ever going to get around figuring out how

741
00:55:45.480 --> 00:55:49.480
we can still do d EI and
not get in trouble for it. I

742
00:55:49.519 --> 00:55:53.360
mean it's constant. Yeah, and
it's constant in the media. I will

743
00:55:53.400 --> 00:56:00.599
say that my Board of Regents in
Arizona put out an edict I guess it's

744
00:56:00.599 --> 00:56:05.760
been two weeks ago now saying no
more diversity statements, no more university statements

745
00:56:05.760 --> 00:56:14.079
and everything that that in plays like
those questions in interviews that demand that that

746
00:56:14.199 --> 00:56:16.960
candidates talk about their diversity. Yeah. I'm happy to report. The Pacific

747
00:56:17.039 --> 00:56:21.559
Legal Foundation, you know where I'm
on the board, is bringing several lawsuits

748
00:56:21.599 --> 00:56:25.039
against it, and so I hope
that freezes all these universities into stopping the

749
00:56:25.119 --> 00:56:29.800
practice at least what during while the
lawsuits are going forward and get all the

750
00:56:29.840 --> 00:56:31.519
way up to the Supreme Court,
and they're going to lose. The universities

751
00:56:31.519 --> 00:56:36.280
are going to lose again. Yeah, all right, John, launch us

752
00:56:36.280 --> 00:56:39.840
out with a better injunction with David
Brooks should follow, right, Yeah,

753
00:56:39.920 --> 00:56:44.119
yes, And this one does not
get money damages. This is an order,

754
00:56:44.239 --> 00:56:47.719
a command, an injunction. Always
drink your whiskey, neat, let's

755
00:56:47.719 --> 00:56:53.599
go Brandon and Steve God save the
queen man. All right, next week,

756
00:56:53.639 --> 00:57:57.440
you guys. Ricochet joined the conversation