Well, whiskey coming fame, my Paine, my brain, Oh whiskey,
don't you let me Mountain? From Powerline blog dot com and produced by Ricochet
dot Com. This is the three Whiskey Happy Hour with your bartenders Steve Hayward,
John You and power Lines International Woman of Mystery Lucresha's gotta give in and
let that whiskey blow where you're been in low down and low Well, Well,
folks, we have finally gotten to the bottom of why David Brooks has
turned so bad at the New York Times. It turns out he drinks his
whiskey on the rocks him. Everybody, It's Steve Hayward are your host of
this week along with John You and Lucresha as usual. And did you guys
see David Brooks's a twit twit twit twit. That's appropriate Twitter thread going around
about how he's spent eighty five dollars on a hamburger and fries at the Newark
Airport, but two thirds of the cost was the whiskey he was drinking with
three or four ice cubes in the glass. No wonder the guy's gone so
bad. How are you guys today? I thought people drink bourbon with ice
in it all the time. Well, I I don't know if it was
bourbon or Scotch whiskey, but either way it's a dad sign. I drink
a lot of bourbon, but I usually don't put any ice in it because
it dilutes the flavor. You can't really get any sense of whether it's good
or bad. I didn't see the picture of David Brooks's eating. I don't
know how we descended to wanting to look at David Parks while he's eating,
but I mean, while he's eating, it's what he's eating. John.
Yeah, I've been. I've been in Newark Airport. Probably you guys have
to at some point. I actually love it because it's got all these cool
food places and it is outrageously expensive. But there's no way it was eighty
five dollars. I mean, I could see Newark charging twenty five dollars from
Hamburger, which itself is outrageous because, of course, as we know,
for a McDonald's, you could get about three hundred Hamburgers for that price.
But it's just any would be better. But you know, I think actually
the height of it is, you know, sitting there calling attention, putting
on Twitter what he's eating and drinking like that should be of interest to anybody.
Well, what he did was, Johnson, you haven't seen it is.
What he tried to do was say that spending eighty five dollars at on
that meal at the airport made him understand what it was that the average American
household was experiencing because of inflation and outrageous. Yeah, I mean that was
the tone deafness of it. It was just ridiculously stupid. When I was
when I left you guys at the Oakland Airport, my plane was delayed significantly.
And there's a nice little place I like to go to. They have
they have a meal chicken something chicken tenders meal that mall you no, No,
I need a lot. So it's like ten bucks for the meal and
then a glass of wine. It's twenty And I'm okay with that. I'm
perfectly okay with that. But I have to confess I'm a I'm an airport
lounge guy. I really love airport lounge. Yeah, especially the San Francisco
has some great ones, especially all you can eat ones with and now they
have some like the one I go to an SFO has a bar where the
drinks are all free and they have good top shelf bourbons and scotches. They
go Lucretia. Yeah, well we're going to establish ourselves as on the reminder,
well there is just to finish this off, because it really it's not
worth wasting this much time on David Brooks, except if you go back to
around I don't know two thousand and five too, I don't know what a
while ago now he wrote a couple of articles in the Atlantic about how he'd
gone out to the heartland to report and what he found is in you know,
rural Ohio, rural Pennsylvania. He couldn't find any restaurant where it costs
him more than twenty dollars to get a dinner. He tried to spend more
than you couldn't do it. So now he's on the other end of the
spectrum. And and anyway, the cluelessness of our elites. I since we're
in different time zones, listeners, I am coming to you from Budapest in
the evening, where I spent the afternoon at Cafe Scrutin. I don't know
why we don't all move here because Kathley scrutin is just awesome. They have
it. They have the window Neon signs with his great book title. I
drink therefore I am and this evening instead of whiskey, I'm having one of
the unique Hungarian white wines, fermant grape they call it. I don't know
what it is, but it's very nice and different from California wine. One
other thing I will show you, John, is a ceramic McDonald's. Awesome
is that that's not paper, that's a real Oh he you bring one back
for me? Really? I want one. I want one, putting it
right on my desk. Oh, that's all you're gonna say. So you're
just ceram ig noois people just okay? Well, all right, a couple
of in the news before we get into some serious topics. This is brand
new and I didn't warn you about this, but I declare it now.
Gavin Newsom is running for president. How do I know this? Well,
yesterday he vetoed the much discussed bill that's been working its way through the California
legislature for several months now that would have allowed I forget who that the government
to take your children away from you or deny custody to particular divorcing parent if
they did not affirm their child's gender identity. And Newsom veto this in a
surprise and shocked to the left in California. It will be interesting to see,
since Democrats have two thirds majorities in both houses, whether they override his
veto. That would be an interesting thing. We'll see. You would have
thought Newsom would have sent a signal that he didn't want this bill, but
I think they wouldn't have listened. So add that to the fact that Newsom
three or four weeks ago said, you know, our federal courts really need
to overturn those two Ninth Circuit decisions that say the police can't enforce laws against
public camping and therefore can't do anything effective about these homeless camps. So there's
Newsome tacking obviously to the right, which is a sign to me that he's
going to run for president. Now how he gets Camela out of the way,
I don't know, but there it is. That's my opinion. Did
you follow this, John, or you know you've been traveling? He no,
no, he so, I don't. You might not have seen it,
but he did an interview National News interview in the last week where he
was adamant about Biden running again, having his full support and that Kamala is
the right VP candidate. But I think what he's doing is he's taking out
an insurance policy because if he had I think, if he had half a
brain, he would be aiming for the next cycle when Biden will be gone
one way or the other, where his main opponent might be Harris or it
might be Boudag. I mean, he could walk, he could ice skate
through it if that's his opposition. But I think this is an insurance policy
for what happens if something happens to Biden he drops out or you know,
the party elders prevailing and delete. Because so what it is, it's a
sign of the nervousness within the Democratic Party itself. I think, well,
you know, people on a chatter this week, how worried they are about
his age and poll ratings or look, I saw a pause this right that
Nikki Haley's beating him by like four or five points in the head to head
or yeah, yeah, that's that's what the polls are show. You want
to get rid of Biden and put someone in charge of you. There's something
that nobody has mentioned, to my surprise, is a Gavin K. Newsome
candidacy would solve two problems for Democrats. You'd get rid of Biden. You
would also have to get rid of Harris because of the old provision in the
Constitution that you can have the president and vice president from the same state.
So Gavin who by the way, he k Newsom and Harris hate each other.
I mean this is well known in the Bay Area. So you know,
Gavin Newsom can once again say, gosh, you know she's been great.
It was all four but you know, there's this pesky little thing in
the Constitution. I've got to have Amy Klobashar's my running mate. You clear
the whole decks out. You solve both problems at once for Democrats. And
that's another reason why I think it's going to happen. Although my predictions are
usually wrong. So the lucretia you can now beat up on me for being
what infernal optimist and that's that way optimist. But anyway, yeah, I
know what's optimistic about Gavin Musson running for a president because he probably will shrim
is a bit in order to get elected, and then we will be the
rest of the country will become like your people's god forsake and state, and
I will move to Hungary then. And so there's my thought on the matter,
okay, And I have nothing else to say about. One of the
things I noticed that you said, I think it was in your Weekend Pictures
introduction is how even the Hungarians are commenting on how unserious we are. It
Really, you couldn't write a novel that explained American politics as they've sort of
presented themselves this last week, just this last week, that would be any
more ridiculous, and what's really happened? And they know we're going to get
to some of these, but let me just throw some of it out there.
Schumer, that idiot Schumer allowing Fetterman to come looking like a bagman off
the street, Oh my god. I mean, and you know, it's
a funny thing Steve and I were talking about before you got on, John,
about how somebody from the Post, the Post sent one of their reporters
out to fancy, you know, very fancy, very exclusive New York City
restaurants dressed like Fetterman. And so the funny thing was had pictures and of
course they wouldn't let him in anywhere. But this guy, So here's the
difference. It's not just that Fetterman is an unbelievable slob and he is just
he's a he's a Cretan. He's he's a troll. He's a huge,
giant troll. He looks like something. Do you remember what? I forget
who actually said it, but they called Mary Matlin's husband, James Carville was
the spawn of the the sex scene and Deliverance. Do you guys remember that?
It's just such a great I mean, you know, James Carvill is
like Carrie Grant compared to John Fetterman. So I mean, why wouldn't the
guy at least want to try to do something about how incredibly scary he looks?
Anyway, that's it. Sorry, I'm engaging in lookism again. John.
It's my home state. I'm so embarrassed at Fetterman as a senator.
But there's the only reason he won is because Republicans put up doctor Oz.
And doctor Oz was from New Jersey. That's nobody from Pennsylvania's going to vote
for someone from New Jersey. That was But I just saw I think that
we've got a great match coming up because Dave McCormick, who lost to doctor
Os in the primary. I think just announced this. He's going to take
on Senator Casey. That's going to be a great race, and the next
probably won't even have a primary opponent, is what I saw. I hope,
So, yeah, yeh'd be good. They cleared to Field. I
mean he he only fell a few hundred votes short against us, and yeah,
who knows, we'll see. I actually think I'm not convinced that McCormick
would not also have lost to Federman. I know that's not the conventional wisdom.
And the reason I think that is they would have run me, he's
a rich guy from Wall Street, campaign against him, and who knows how
affective would have been encountering it. I think we'll find out because they'll run
to get that against him with Casey, and so we'll see. Let's see
what else is going on. Oh, I can wait before you go on?
Sure, I do want to stop and ask my well dressed friend John
what he actually thinks about the larger implications of of giving Feederman this break to
come actually onto the Senate floor. Senators, Now, I guess, even
though, of course you know that the elitism of it is so dauntingly hypocritical
that, you know, staff members still have to wear suits, but fetterman
gets to come looking like, you know, he just rolled out of bed
from in a homeless center. What do you think I mean, do you
think there's any Is it just snobs like us, looks like me who are
so appalled by this. You know you can't even be casual without a lapel
on your shirt, John, and I admire you for that. I put
one on. I got a lapel shirt out special for Lucretia today. I
kind of gone T shirt since the Saturday, But actually I don't have any
T shirts except for the gym I actually never wear. But the I don't
see why I should rent let people rent out the front space on my body
with very slogans and advertisements for free. But I think that when you wear
a tie and jacket at the Senate or notice no presidents have gone casual.
Still, Jimmy Carter, did he not wear well remember the Jimmy Carter thing
about what he was gonna well the elite's by wearing his sweaters in the world?
Did wear sweater vest ones for a national dress to fire member? Yeah,
but that wasn't in the Oval Office. That was in you know,
the Roosevelt rum or somewhere. The fireplace was kind of a stunt. I
mean, I still remember Ronald Reagan would wear his coat and tie to the
Oval Office. I mean, I mean he used to talk about, how
can I even take my jacket off in here? Right? Because he thought
and then Clinton would wear it a coat and tie but no pants. Boy,
I could just you know, man, this is Steve's fault. John.
I told him already because he's he's I'm not even nearly as offended by
him telling me last week's shushwoman. But I am offended by him texting me
and wagging me up at two fifty one in the morning because he's not smart
enough to figure out a nine hour time difference. I just figured you'd like
to wake up to text. I can't believe you had your phone on next
to your bed. You have important stuff happening in my life that I need
to know about, but it's not a text from you. Well, all
right, I may I may keep it up. Any finished question, though,
which is yeah, I think that when you wear tie and jacket at
the White House, I think at the Supreme court. I haven't seen anybody
argue a case without a coat and tie on. In fact, I think
that's a good way to get yourself kicked out of any federal court. It's
a show up, casual. It's you're showing. It's not that it's your
showing respect for the institution. I think it's That's why what Federman's problem is,
he's saying he's superior to the institution. When you wear a tie jacket
on the floor of the Senate, you're showing your respect for the Senate,
and it's long history and it's important. So that's the sole only serious point
I would make there. But what happens when Federman shows up. I know
what he's gonna do next. It's going to be like, remember when we
were younger, maybe you didn't see these, they would wear these uh T
shirts on the beach where they would print on the front a tie jacket,
right right, Like Federman's next movement to hoodie's just going to paint a tie
jacket on the front of a hoodie. Serious point, Steven, it's really
quick, and then a joking point. The serious point is is that there
was an article I don't remember who from I was a decent article. I
wish I did to give him credit, but it was basically the whole point
of this nonsense about allowing him to dress that way is not, in fact
what we should be focusing on, but that that he is dressing that way
may have a lot more to do with the fact that, you know,
he's really just a very what how do I say this without being too rude?
I mean, he's brain dead, is basically what it comes down to.
And he's probably not capable of dressing himself, and that, you know,
this whole idea that we need to allow him to do this to you
know, accommodate his depression and all of that, which is you know,
the argument behind it is. Think about that for a minute. We've got
somebody in the Senate, and I really don't blame you, John, because
you didn't vote for it, but they are your people who did. We'll
leave. But you know what, one might argue that they should force him
to wear a suit just to see if he can do it and tie a
tie. Right, I mean, he's silly, but he's worn a suit
a couple of times, but he's complaining a lot about put it on him.
Well, who knows. The news reports I see from overseas is that
there's a ferocious backlash to this, that there's likely to be a vote by
a resolution to restore the old rules. I did like the idea that Lauren
Bobert, if they did, the House would show up in a bikini.
Or was it Susan Collins who said that either one. Yeah, there's a
big difference between Susan correct. Yes, I can grasp that. I can
grasp that this for Yes, John, remind me here before we move on.
I believe the Solicitor General still wears a morning coat when he appears to
the Supreme Court for an argument. Yes, I remember, and sometimes even
the non government lawyer. I mean I went to an ordal arguments twenty five
years ago now where the lawyer who was not the government lawyer it was John
Barron of whiley Ryan. He wore a morning coat just because he wanted to
match the Solicitor General's appearance, I think, and or he might have been
a former Sg's office Lloyd could be. I'll bet he was right. Maybe
yeah. Okay, so one last year on that sorry, go ahead,
go ahead, No, I'm done. Point uh number one. I actually
blame my own senator a little bit for the relaxing standards, because miss Stripper
Boots herself has not really followed what I would consider the appropriate decorum for senators
in the United States Senate. But I'm speaking, of course, of Kirsten
Cinema in case I don't know, I kind of like some of those outfits
myself, but would which is why she gets away with it. But yeah,
I don't. I don't like women that dress like bananas and ridiculous and
wearing ridiculous colors and things like that. But of course, you know me,
I wear black until they invent something darker. And I also, just
as a total tangent, absolutely irrelevant and unimportant, I grew up for as
you know, for a long time as a child attending a very fundamentalist church.
I'll just leave it that way, where you didn't go in anything but
address and long sleeves. So, as you all know, I'm now Catholic,
and Catholics, I mean Catholics. Will many of them come to work
come to church dressed like John Fetterman uh and is quite common, really yeah
really, except for maybe the you know, the really traditional one. This
is Latin masses and so forth. But I still can't. I mean,
I still cannot go to church and anything but address and long sleeves, even
though nobody would say a word if I didn't obviously, And you know,
there's just a sense of decorum that maybe I'm a bit obsessive about that.
That's what this is. So not a Mennonite. All right, let's draw
a veil on this and move on to a new topic. All right.
I wish you guys could have been with me today here in Budapest, because
I had a meeting. It was one of those off the record Chatham House
rules meetings with six or seven Americans and six or seven Hungarians, several of
them very highly placed, very interesting people. I will tell you that the
two people sitting next to me on the American side were Michael Anton and David
Goldman, and there were a couple of other people. But you know,
what do you need after me and Michael and David Goldman? And so this
guss on our favorite subject because we talked a lot about the whole Ukraine business,
and boy, there's some interesting observations about things. There's this one guy
in particular, and again, because I have to respect the rules, I
can't say much about him except to say a person that takes seriously, not
just because of the stations he's held, but also his obvious intelligence. And
you know, he points out, look, here's our position, and I'm
paraphrasing here, this is a war that neater country can win. I would
prefer Ukraine to win, but realize that if Russia is completely defeated, it
wouldn't break my heart, but realize that Russia will spend the next fifty years
plotting revenge on everybody. And so that's why he's saying, you know,
we want to have a negotiated settlement. The other thing he said was we
are getting tired of whenever we question the European Union or the United States were
immediately called Russian agents. And I had to sympathize with him about that and
anyway, but the other thing he said was I thought you would enjoy,
especially Lucretia is you know, the American the wide administration is very hostile to
the government in Hungary now orban in the FIDEJ party. And the ambassador to
Hungary is a gay man who was here with his spouse, who makes a
point of marching in LBGT parades that spring up around the kind treat By the
way, you don't see any pride flags here in Budapest. And what this
guy said was quite interesting. He says, you know, that kind of
ostentatious hostility from America is actually politically useful to us here in Hungary. And
I thought, oh, what an interesting contrarian and probably correct. So you
know, American hostility from a particular presence not a bad thing for us here.
And I thought, ah, isn't that an interesting thing? And then
he did. I think, rightly, chida United States for not thinking more
seriously about the unintended consequences of our disposition towards Ukraine, including most especially whether
we're going to see it through. He says, if you guys lose heart
in this the way you did in Afghanistan, the way you did in Vietnam,
and at any pointed to a whole bunch of things where we talk a
big game but never intervene, like Rwanda in the nineteen nineties and so forth.
He says, you know, if you guys walk away, we're still
here with the border with Ukraine. I thought, you know, those are
all worthwhile, very worthwhile points that don't get brought up in the American discussion,
and we did not waste They did not waste a lot of time deploring
Joe Biden. It was just like, you know, we would all like
Trump back or somebody else, but there's no reason to dwell on or obsess
about that. So anyway, it was a very interesting morning. I'll have
to say that. So what's your question, Steve. It wasn't a question.
I'd just like to give you that little sit rep as they say,
right, okay, well I think it. I want you to know that
I got contacted the other day. They're having some distinguished speaker series and somebody
noticed that it was all white males who they speakers. So they asked me.
They asked me to come on a panel about Ukraine. I declare,
I declined, yeah, do you know what, It's not even worth it
in the university setting. Can you imagine? I do want to say,
I want to bring up something a little bit different the whole fight about the
continuing resolution and money for Ukraine. But if the government shuts down that idiot
moron Affirmative Action appointee Secretary of Defense we currently have has decided that, Yeah,
soldiers, won't get paid, but we will keep sending money to the
Ukraine. Yeah. I love saying that. What. Yeah, good lord,
he really did. Yeah. And he has the authority under under the
law to do so. He can he can decide which national security initiatives the
military has to defend and keep those, keep those funded. And that's it.
That's the one he's going to keep funded. You know. It's just
every day, every day gets worse. In my opinion, I hope that
the movement too actually stop funding that. You say that the Hungarians are so
worried about. I hope it takes I hope it's one of the biggest issues
in this next election. There was a congressional testimony. Again I wish I
could remember names. I need to go to one of those things where they
give my brain some sort of something to help it. But anyway, the
congressman who actually in Garland's testamenty which I haven't even gotten to, shows the
very famous video of Biden saying how he forced the Ukrainian government to fire the
prosecutor and then says, you mean and you know, Garland, God,
what a slimy Oh. Anyway, sorry, I Kenny, I don't have
words but he shows it and he says, Okay, what does this look
like to you? Okay, I'll answer for you, because you know,
Garland's so good at that knave smooth, he says, I'll answer for you.
This is bribery and corruption that are impeachable offenses. I yield my time.
It was wonderful. I love that. Okay, now I can hear
well, all right, go ahead, John, if you want to weigh
in on so you know, Lucretian. I disagree about Ukraine. I think
actually it's one of the few successes for the Biden administration. I disagree with
most of what they've done, but I think I agree with what they've done
in Ukraine. I do. I don't see how the Secretary of Defense could
say sending money to Ukraine is a Remember, I think the tests is an
essential government function, but not paying the troops is permissible. I would think
you'd have to keep the military running even during a government shutdown. I don't
understand how the Secretary Defense could find that, but I think that. I
mean, I like the fact that the Ukraine were, as I said before,
we're running down the Russian military no costs. In American lives. It
does cost us money. I can see why the Hungarians don't like it.
I think that the interesting thing, and this is actually a question I have
for you, Steve, about why is Hungary becoming so important? Is I
think it seems like you're seeing the return of nation states and their interests in
Europe. You know, they've they've been kind of, you know, had
this European Union living under the American security umbrella. But the Eastern Europeans don't
see it that way anymore, Like this was a French German thing to underspend
on defense and sort of free ride off us and build a free market.
But now I think the thing that and this is the point of trying that
it seems countertuitive, is that I think Russia's invasion of Ukraine is what makes
Hungry become more important. Reminds Poland why their national interests is not the same
as every other country in the European Union, because they're on the front lines
with Russia. And so maybe these nations and the Eastern are the ones that
love us more in fact, right than the Western European nations. They're reminded
now that the European Union is not the solution, you know, they're they're
not going to be saved by the European Union from the next Russian attack.
But what I what I would know is why is Hungary becomes so such a
focus of the American conservative movement? You know, you got are going,
A lot of our friends have gone. You read about things being written there,
people writing arguing about Hungarian domestic politics, which I can't remember happening in
America ever. Why isn't it Poland, right, Why isn't it you know?
You know, why why are we so? Why are American conservatives so
interested in Hungary right now? Yeah? Well, it predates the war.
I mean, this goes back seven eight years at least. And by the
way, Poland no one hates the Russians more than the polls, and they
were very enthusiastic about backing Ukrainians until last week. You know why is Ukraine
is threatening to sue in some world court. I forget which one Poland for
not accepting Ukrainian wheat exports. There's some well there, well, there's there's
a lot of details. This I'm skipping over because I haven't mastered them.
But the point is is Poland like and hungry also they want to protect their
own farmers the same way we do right on the French too and everybody else.
And now suddenly Poland in the last forty eight hours have said we may
withhold so we may withhold further military aid from Ukraine, which shows this whole
thing is very fragile. Look, the reason Hungary has become popular with the
American conservatives as they have some fight in them against well, first of all,
against the secondar Left, against the European Union, and well, and
you know they're ah, this is one something I talked about this morning this
meeting, is you know, the country has explicitly said we don't support gender
transition. We don't, We're not down to us LBGT stuff, which has
brought the rath of the European Union on them. Say we may withhold some
European Union funds because of that. But they did sign on for the whole
nets zero energy climate nonsense, and I thought, imagine if they said no
to that, because the climate cult is even worse than the identity cult,
I think in a lot of ways. Anyhow, there's some fight here.
Now. Poland is actually a very conservative country too, but they aren't as
visibly fighting on the international stage the way Hungary is with Victor Orbon and all
the other By the way, I can't believe the level of activity here.
Every day that i'm here, there's three or four different conference, those panels,
lectures going on at all the different nodes here. It's not just the
danue Do Institute where I'm a fellow, or the Matthias Karbenis Collegium, or
the National Public Service University where Lucretian and I are both giving a paper a
week from now U and three or four other places. It's like the DC
scene, whereas you know, the thing tanks every day have tons of panels
and lectures and discussions, and most of them are boring. I'm the ones
here are you just can't believe the level of activity here, which I don't
think is happening in any other European city. So it's astounding. It's the
well, I'll stop there. I can make up a whole bunch of analogies,
but it's it's quite it's quite astonishing to me. So that's why there's
a fight here going on. Add I wish some of our politicians had as
much fight as the people here do. So that's all Lucretius here in a
week, you know, and so our next podcast prepared the Hungarians for this
experience. I have. Oh, they're going to love her, you know.
Anyway, something we've been wanting to talk about for quite a while is
the persistent legal issue of qualified immunity, and something lucreation I read every week
and I think maybe John, you're starting to read it. Two is the
short Circuit dispatches from the Institute for Justice. It's always about what's happening at
the appellate court level, always written in a very sprightly manner, and I'll
try to remember the link to it in the show notes. And about half
of these cases at the at the appellate level, or maybe a half,
but every week two or three at least are about instances where some government official,
often a police officer, but sometimes a trustees of a university and other
things are essentially exempted I guess you'd say from legal liability because of the doctrine
of qualified immunity, which I suggest is a derivative of the old fashioned idea
of sovereign immunity, which traces back to the mine right of kings. I'll
leave that aside for now, John, why don't you go first? Because
as I understand it, this was actually a judicially created category that mushroomed out
of control. And maybe now like the Chevron doctrine, is being nibbled away
at. I'm not quite clear of that, and I know Lucretia has a
lot of thoughts on this, and then I'll try and clean up whatever messages
you guys make. Yeah, you're your right, Steve. The way you
describe it being judicially created, there's no provision in the Constitution which discusses immunity
at all. So there's so in the immunity is you suffer some kind of
harm from a government officer. Most of the cases are claims of police brutality,
for example, or police searching you without a warrant, something like that,
And so some officials have what we call absolute immunity, like they actually
can never be So this includes judges and prosecutors and the president actually for this
is because it is for their official actions. So people short of that government
officials who aren't judges, prosecutors, are the president, they generally live under
qualified immunity, which means you can sue them in their personal This is in
their personal capacities, you can sue them for money. Right, this is
just immunity from lawsuits for money for the damages you suffered if but only if
they violated what's called a clearly established right. So there's a variety of different
reasons people have proposed for this doctrine, which, as you said, does
not appear in any law. This is just totally judicially created. You know.
One is courts are reluctant to impose money damages, you know, demands
for money on cities, states, and even the federal government because it interferes
with their treasury. They don't want to bank grew up the city. That's
one claim I think. Actually, the more sophisticated defense of official immunity is,
if you think about this, this is really about creating incentives to stop
the government from violating your rights in the future. Right. That's more important
in a way for the legal system than making up for constitutional violations of the
past. If you think about, say, police searching your house without a
warrant. Yes, it's bad that they search your house with a warrant,
but what you really want to do is stop them from doing it in the
future. In large numbers and so some scholars have said, you know,
money damages against the individual police officer, that's not going to really stop it
in the future. What's going to stop it in the future is right putting
in a junct, you know, putting an order on the government don't do
this again, maybe imposing costs on the government. But do you want to
really go after the individual police officer. Does that really make a difference.
That's I myself. I'm really kind of torn about it because I do think
that if there were no official immunity, I think it would make a big
difference in the way our police police officers are. I think it'd be hard
to recruit police officers. I think that social problems we have right now is
policing. On the other hand, it's hard to accept this doctrine that's totally
judicially created. Well, you read these cases of where a police officer has
maybe busted down a door the wrong house. They didn't actually read the warrant
correctly, so they made a mistake, and then in the course of making
that mistake, they'll do something really horrible like trash a house, shoot the
person's dog, sometimes shoot a person who's totally innocent, and there and no
liability or recourse is possible because they enjoy qualified immunity. I think that's where
you say, wait a minute. By the way, I take your point
that if we're not having enough trouble recruiting police right now, I can I
can see why that would be a problem. But it does seem to me
that the government gets away with a way too much under this doctrine lucretia.
So wow, that so many things. First of all, I don't agree
with John that the whole point and I think this is a horrible mistake on
the part of the Supreme Court, and you see this in the creation of
the exclusionary rule, for instance. I don't think that the Constitution is there
to be to impose a kind of judicial judicial what we call it, behavioral
modification of law enforcement officials. I think it's there that the whole point of
the Bill of Rights is to protect individual rights. Meaning if I am the
subject of egregious prosecution, prosecution, egregious police action, the Constitution protects me.
It's not there to make sure that some future generation doesn't get violated with
the same sort of constitutional violations. So that pot let's put that put that
point out there first. And I think that because John likes to think of
the Constitution as what the judges say it is, he doesn't look at it
the same way. You know that what what are we gonna say nothing.
I'm just saying, well, that's throwing go ahead, keep going well because
he always says that. I mean, you know, why do we not
allow Abbott to police the border? Because the Supreme Court said so, even
though the Constitution doesn't so anyway, So that's that's the first thing. Did
you catch that, John, or were you I just I slammed you,
John? Oh no, I heard you. Luckily, wireless earphones allow you
to attack me wherever I am in the room. Okay, okay, So
so put that decide. You can answer that in a moment. The second
thing is is that when you say it's judicially created. Uh. You guys
probably have forgotten this already, but I sent you an article about a law
review article where there's a law professor who argues I have to get his name.
Sorry that in fact, when the clerk put the ninth eighteen let me
get it right, the eighteen seventy one Civil Rights Act, from which this
concept of qualified immunity comes. The whole point of it was actually to provide
remedies for especially the newly freed slaves and and and blacks in the South,
to be able to have remedies against overly zealous law enforcement, shall we call
it, And that what's actually happened is that the entire that when what Congress
passed and what made it into the law are two different things, and that
the courts have ignored that part that should have that didn't make it into the
law, and would would have actually reduced to a very great extent the ability
to use qualified immunity in any case except for I'll oversimplify this, where law
law enforcement is acting in good faith. Rather you have to prove that you
know that that they didn't violate any specifically that they didn't intend to violate any
rights. And it's just it's nonsense. And so I actually think the whole
thing should be overturned, and they should. They should, and Congress should
pass legislation that fixes it. Not that we just you know, turned I
agree, we you know, officers, it's very difficult to recruit for law
enforcement out there. But I would also argue that one of the reasons for
that is that the reputation of police officers has also suffered. I get that
the actual things that happened to law enforcement officers because of black lives matters and
the possibility of qualified immunity going away, I'll get all that. I'm not
disagreeing with that, But I also think that law enforcement used to be a
much more respected activity than it is now. And part of the reason for
that was because you could have you could look at these people as acting with
integrity except for those who didn't, you know, except for those who didn't.
And you remove from law enforcement a large those who don't act with integrity,
who don't act to look out for the individual rights of suspects, etc.
And you couldn't start restoring law enforcement to the place it used to hold
in our society. Well, okay, I got to clarify one tasting,
but I didn't make ident state at the beginning. And it does address your
point of sovereign immunity, which is this all arises in the context of the
fourteenth Amendment, and so in the fourteenth Amendment, so generally the governments have
sovereign immunity, which means you can't even sue the government for money, And
so when the Fourteenth Amendment was passed, which applied right the Bill of Rights
to the states and allow the passage of these civil rights acts what we call
Section nineteen eighty one, Section nineteen eighty three. These are parts of the
US Code which allow people to sue states for violating their constitutional rights. Then
when the courts try to figure out how how does that work with sovereign immunity,
The rule that the court's created, which is what we're talking about,
is you can still if someone busts into Lucretia's house and right searches without a
warrant causes damage, Lucretia can still sue the government. She could still sue
the state of Arizona. She can still sue the city. What she can't
do under qualified immunity is sue the individual officer. So that's that's the difference.
So it's a weird you're overriding sovereign immunity the sproat, but qualified to
me where you're protects the individuals. So you could so for example, the
famous cases, I think it's called it's Nixon versus Fitzherald versus Nix, Nix
and versus Fitzgerald Nixon fires some individual government officer. The individual government officer can
always sue the federal government. So you you know, I should be getting
money back. But what he can't do is sue Nixon. And so the
I really worry what would happen if this were applied today. I mean,
if the creature work to one and run win and sovereign imman qualified meaning were
overturned by Congress or the courts got rid of it. Because the other point
is there's no constitutional requirement to have this immunity. The judges just created it
because they said, oh, we think Congress would have wanted it this way.
Congressman over always overrule official immunity. Think about how hard it would be
to get anyone to serve in the police, I think, or EMT or
first responders, you know people, And this is I should have made clear.
This is one of the defenses of sovereign meties that a lot of what
people like first responders have to do is in this kind of gray area.
Like Steve said, oh, you're a police officer, you shoot someone,
maybe you kill them. The standard is reasonableness right under the circumstances. If
you're a police officer and you might have your financial livelihood ruined because people after
the fact disagree with you about what was reasonable under the totality of the circumstances.
Why would you why would you ever sign up to do that? Why
are we not already there with the you know, the Minnesota case with George
Floyd and right, No, no, that's right. I mean now that
those are criminal prosecutions of people, which is where I'm sorry, it's no.
I agree, but this would just come make it even much more and
worse, I think for our police officers. And you all said we're also
going to let people right. At least I think with things like George Floyd,
at least you have das who are elected. They're choosing the cases to
bring. Right, anybody could sue the you know, bring these cases and
say I want money from that police officer because I don't like the way you
mean. Well, no, I may have mistated it a little bit.
I mean, look, I think there's been some of these cases I think,
unless I've got them wrong, where qualified immunity was extended to eliminating liability
from the city that hired the police officer. I completely agree that we don't
want to hold the individual police officer necessarily liable anymore than I hire the FedEx
driver personally liable for an auto crash unless they're drunk or negligent grossly. But
instead it's FedEx's responsibility. I think it should be the local government's, local
government, any level government's responsibility when something goes badly wrong and damages someone's rights
and property without just cause. Now, so that's where I think things have
gotten out of balance, and I think that extends to and here's where I'd
like to push this ultimately, is I would like to see a world in
which when a bureaucracy trample somebody's business interest and property rights for just pure bureaucratic
power play, I'd like to see that bureaucracy penalized financially and maybe some people
fired. Those are two separate actions, I think. But right now,
and so this goes back to the abstractness of it, I think I don't
have lock second treat as handy, and I haven't read it for a while.
But isn't the original reason of sovereign immunity And you mentioned I think legitimate
cases, prosecutors, the president, people who have to make decisions and govern
a country, and they might make mistakes and we're not going to wakes and
they will of course, and you know, but the problem has been,
you know, over the very long historical horizon, is we didn't like the
fact that the king would always claim that, you know, the king's word
is law, and you know, the king can do no wrong, and
like people in fallacy, almost right, when there was actually a sensible reason
why you would not assign liability anytime a prince that's the word I think Locke
uses, makes a mistake. Uh And and you know, ultimately Locke says,
it'll be the people who will judge this. You can't draw a clear
legal standard against the prince's action. That's sort of a popular sovereignty argument.
But at the point is I guess Congress won't do this, of course because
they couldn't get their act together. But Congress ought to write some clear statutes
clearing us up, I think. And we just want to add one thing,
sort of a manic The problem I have is that my own position about
qualified immunity is probably the result of you know, these horrendous cases where you
just see officers, you see prison guards, you see others acting in just
such an egregious manner. And then you see the courts under the doctrine of
qualified immunity not holding anyone accountable for it anyone whether you know, and so
you know, I don't. I've never had a study of the actual widespread
impacts of qualified immunity in either direction, because I think that that John,
you probably wouldn't disagree with me when I say that that the qualified immunity also
does protect people who act truly egregiously against the individual rights of suspects or you
know, incarcerated persons or whatever it might be. I think you have to
see there's two sides to what qualified immunity does, the outcomes of immunity,
and you know, the question is if it's really not, if it's judicially
created doctrine, and if there's an argument to say that not only should it
not be judicially created doctrine. But they got it exactly wrong. My understanding
is that the Supreme Court is actually going to take this case up AT's a
similar case up. At some point you see both Clarence Thomas and Sonya Sotomayor,
who getting more and more and more uncomfortable with this doctrine of qualified immunity
and the extent to the extent to which it is often applied in state and
the district federal courts. I mean, do you see any evidence of that,
John, I would be surprised if this court actually were to overrule qualified
immunity or sovereign immunity. Although there are a lot of scholars who think they
should do both, they should reverse on both issues. It is so here
here. I think here's one way to think of it. I think we
maybe come to agreement on this is, you know, this is a human
system. It's going to have errors in it, right, policing, whatever
prosecution there's going to be. And so the question is how do you correct
the errors? You focus our money damages, you know, paying people money
for the constitutional harms. The best way to solve the errors or is trying
to figure out some you know what we call injunctive relief, you know,
future looking, you know, don't do this anymore or adopt this policy in
the future. The best way to cure constitutional violations by a system filled with
human beings who make errors. Isn't that the whole point of the exclusionary rule?
Yeah, yeah, no, this is actually so, this is the
field of constitutional remedies, which I hope is only taught in law school,
but the whole way think about all the time, it is like, how
do you fix the You know, you've already accepted that the government violated someone's
rights or someone got harmed. It's the questions how do you what does a
court do to make up for it? And it's we tend to think of,
oh, give the money, but actually the more complicated thing is how
do you prevent the system from repeating the harms over and over again. Second
point I'd make is again Congress can overrule the system. Steve you did say
I wish Congress would pass a off fixing all of this. There was I
think remember after the George Floyd and during the Black Lives Matter controversies, didn't
Tim Scott actually try to reach an agreement with Democrats to put forward a bipartisan
bill about policing. And I think, if I remember, the sticking point
was qualified immunity. Democrats would really want to override the doctrine in Toto,
and I think Tim Scott was unwilling to go there, and that's what sunk
the bipartisan police reform bill in Congress. In twenty twenty. So there's a
real clear divide on this. It's interesting it doesn't break down in the usual
ways because Lucretia is being very libertarian on this one and I'm being conservative on
this one, and that I'm just started defending the I think here's what I'll
go back to this point again, John, and that is that there's a
difference between a judicial remedy and a constitutional remedy for violation of rights. And
I think that all the evidence, the more and more evidence that comes out
about qualified immunity as a judicially created remedy is it's a bad remedy. It's
a bad remedy. And it had again, the whole concept of it had
its origin in the eighteen seventy one Civil Rights Act after the passage of the
fourteenth Amendment, and it was designed to do exactly the opposite of what it
has done, which it was designed to override, you know, state common
law problems with granting immunity to officers who were you know, violating, in
many cases in a violent way, the rights of newly freed slave. So
at some point if the court under the doctrine of originalism, John goes back
to the fourteenth Amendment and to the passage of that eighteen seventy one Civil Rights
Act, and follows through to where it takes them, they will they will
have to conclude that courts have done exactly the wrong thing with respect to qualified
immunity to the extent that they based it on that eighteen seventy one Civil Rights
Act. There's my prediction, right, Well, well, let's get out
with this thought, which is maybe there are signs or are there signs that
the judiciary is starting to have second thoughts on cases they're reviewing now. So
one of the cases this week is one that I've followed for a while in
the news, which was a professor of music at the University of North Texas,
which seems to be an especially bad college, even for Texas, and
they demoted this fellow because he's said the wrong things about race. And he
sued the Board of Regents for First Amendment violations respecting as academic freedom and free
speech rights. And they claim, no, you can't sue us sovereign immunity,
And the Fifth Circuit this week said nope, you don't get qualified immunity.
The suit can go forward. And news accounts I read that they may
or may not have this right, but to suggest that now the Regents could
be personally liable for a damage claim and a successfully prosecutor to the courts.
So we'll see. But I thought that seems like the kind of case that
four or five years ago it would have been a slam dunk that yeah,
regents are right, they can't be sued, and yet now it's going to
go forward. So I like this. Any last word on this, John,
No? Okay, Well, then let's let's let's go to our round
robin at the end. Do you have a camalism of the week for us,
John, or do you have the Battle on Beach? Okay? Oh?
Good? Do I have a good one? And it appeals to me
and Steve not lucretiav. Since Steve and I are fans of science fiction.
Right good in particular. So I like this headline of the person who reported
the communism. It says Kamala Harris leaves Earth's orbit with latest riff on space
cooperation. Now part of the problem I have. I do sympathize with her
at this point, and that this shows you how tedious being vice president can
be, is that she went to discuss space cooperation with the Prime Minister of
Mongolia. I don't understand really what we're doing with Mongolia in the area of
space cooperation, but nevertheless, here's what she said today. I am pleased
to announce that the next steps in our work together will be about further expanding
our partnership. In particular, we will discuss the work that we will do
together to strengthen our space cooperation. You and I spoke briefly about the beginnings
of the next era and for you what that means in terms of your leadership
and your vision for the future, and certainly strengthening our space cooperation be a
part of that agenda, including of course our space cooperation to think about how
we strengthen the economic prosperity and development of our nations. I just lose trying
to understand that two things we never got to today, and I'm not I
don't want to discuss some of the F thirty five thing that you guys were
so fascinated by. Well, right, it was just funny, right,
yeah, so bad luck. Military announces lost F thirty five was carrying Epstein
client list or military personnel seen wandering Forrest pressing button on F thirty five Key
Farm. That's pretty good. Okay, So then just a little bit more
on the feederment thing, aging senators show up to work in their hospital gowns
after dress code relaxed. Yeah, that was a good one. Yeah,
we didn't. We also didn't talk about Menendez. Yeah, I mean,
I love the gold bars thing. You know that, I was in my
house. Who knew he was a gold buck hard money man. Ron Paul
will approve of that. And ag Garland we didn't even talk about except for
my one comment about the congressman who held it Garland's testimony, but heji Garland's
impartiality questioned due to conspicuous kill Trump tattoo on forehead. No, we just
skipped the law of things. We didn't do a sack dance on the inevitable
and predictable collapse of Abraham Candy up at Boston University. You know about that,
Well you don't. Oh no, it's the money has disappeared. The
money has disappeared like an F thirty five John Right. I mean I could
have predicted this when it started three years ago. Blash mob robbery. Yeah,
well, anyway, it's the funny thing, is well, I mentioned
the thing. Okay, I was just gonna say that they were going to
start a database on racist on collecting racist incidents. That was one of his
big initiatives, and it lasted for about three months and went defunct after about
three months. Maybe there's just not enough racist incidents for old Ibram to catalog.
I don't know. But anyway, basically he spent all the money himself.
And yeah, I mean Henry Rogers his real name. One interesting thing
I'm tracking and I'm going to try and write something about it if i have
time, which I won't, is the left is rushing to put distance between
themselves and him and say, you know, he's really not a pre eminent
critical race theory scholar, you know, and really there they are throwing him
under the bus so fast, it's amazing, so surprise, surprise, and
you know what. The other thing I was going to mention that we didn't
talk about, don't. I'm now, but I think we should pick it
up again is what I'm seeing more of, and of course experiencing more of
at the university is how are we ever going to get around figuring out how
we can still do d EI and not get in trouble for it. I
mean it's constant. Yeah, and it's constant in the media. I will
say that my Board of Regents in Arizona put out an edict I guess it's
been two weeks ago now saying no more diversity statements, no more university statements
and everything that that in plays like those questions in interviews that demand that that
candidates talk about their diversity. Yeah. I'm happy to report. The Pacific
Legal Foundation, you know where I'm on the board, is bringing several lawsuits
against it, and so I hope that freezes all these universities into stopping the
practice at least what during while the lawsuits are going forward and get all the
way up to the Supreme Court, and they're going to lose. The universities
are going to lose again. Yeah, all right, John, launch us
out with a better injunction with David Brooks should follow, right, Yeah,
yes, And this one does not get money damages. This is an order,
a command, an injunction. Always drink your whiskey, neat, let's
go Brandon and Steve God save the queen man. All right, next week,
you guys. Ricochet joined the conversation