»  Radio Derb — Transcript

        Friday, April 6, 2012

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[Music clip: From Haydn's Derbyshire Marches]

01 — Intro.     And Radio Derb is on the air! This is your coruscatingly genial host John Derbyshire, actually going to tape on Maundy Thursday, which is to say, the day before Good Friday. I'm not sure how things go here in the colonies, but back in the Mother Country this is the day when the monarch distributes Maundy money to needy citizens, after first washing their feet. Not a bad idea, for the ruler of a country to display a little humility.

That, of course, gives me a segue to the week's main story.

02 — Obama disses Supremes.     The main story is, Obama's remarks at a press conference on Monday. It was actually a pro forma presser with Obama hosting the presidents of Mexico and Canada, and most of what Obama said was boilerplate stuff about trade and cooperation. There came questions at the end from the assembled press folk, though, and in response to one on last week's oral arguments before the Supreme Court, Obama unbosomed himself of the following observations. [Obama: "I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step …" etc.]

That had a number of effects down here in the commentariat. The first effect was outrage from the right that Obama seemed to be intimidating — some actually said "threatening" — the court. That seemed a bit overwrought to me. What could he threaten them with? The last president to try anything of the sort was FDR 75 years ago, after the Supremes had ruled elements of the New Deal legislation unconstitutional. The final score there was somewhat ambiguous, but certainly not an unqualified victory for the president, even though his party had super-duper-majorities in both houses of Congress — the Senate, 75-20, the House, 334 to 101.

(I note in passing that the court's striking down New Deal legislation makes hay of the president's claim that such a thing in the case of his healthcare legislation would be, quote, "unprecedented." So do a great many other decisions of earlier and later Supreme Courts.)

There was then some second-order commentary to the effect that, no, the president wasn't actually intimidating the court, he just wanted to sound that way for strategic reasons — to get himself in position in the event of a court defeat, to inspirit his supporters, and so on.

I'm a bit skeptical there, too. I just don't believe Obama is that much of a strategist. My guess is, he just spoke carelessly, from his own feelings, which are radioactive with willfulness and entitlement, and with petulant anger that anyone might think that he, Barack Obama, could possibly be wrong about anything.

03 — The nutty professor.     And then there were people saying: "How could this guy, who was president of the Harvard Law Review, and who taught constitutional law for 12 years at fifth-ranked nationwide Chicago University Law School, how could he not understand the most elementary functions of the U.S. Supreme Court?

I have an answer for that one, but I shall get myself in trouble if I say it out loud, as it ventures on taboo areas of our national life. Suffice it to say that my answer consists of two words; that the first word begins with an "a," and so does the second.

Supporting evidence for my opinion showed up the next day, when at a different news conference the president said, quote, "We have not seen a court overturn a law that was passed by Congress on an economic issue, like health care, that I think most people would clearly consider commerce. A law like that has not been overturned at least since Lochner, right? So we're going back to the '30s, pre-New Deal." End quote.

This drew withering fire from constitutional scholars, who pointed out that (a) the case of Lochner v. New York was decided in 1905, putting the president a whole quarter-century out on his date for a key ruling, and (b) the very name of the case, Lochner v. New York, sort of gives away that it was not federal law that was being struck down but state law, and therefore had nothing whatever to do with the Commerce Clause, which is concerned with the powers of the U.S. Congress.

By midweek there wasn't much doubt that our Constitutional Law professor president is, in fact, seriously vague about some key points of Constitutional Law.

In situations like this, I try to tread carefully. I wasn't raised in the U.S.A. and so didn't get any basic education in U.S. civics. I know as much about the Constitution as an average middle-scoring high school student, though I keep trying to improve. Obama is, furthermore, the president, with a lot on his mind. In full awareness of my own feeble understanding, and with proper respect for the office of the presidency, I really try hard to cut the guy some slack here.

And yet, he taught the subject for twelve years, the last of those years a mere eight years ago. At a top-flight law school. And you read something like James Taranto's piece in the Wall Street Journal, pouring scorn on Obama's comments about that Lochner case; and then you do an hour or so of googling to fill some of the gaps in your understanding; and at the end of it all, you can't help thinking … well, what I can't help thinking is that two-word phrase I mentioned up above. But that way lies madness, or at least seriously taboo territory, so I'll change the subject.

04 — Who's the activist?     And then there was that little sneer at, quote "conservative commentators" — no doubt the president had Radio Derb in mind — saying, quote, "for years" that, quote, "the biggest problem on the bench was judicial activism or a lack of judicial restraint," end quote.

Where does one start with that? What conservatives detest is liberal justices finding things in the Constitution that are not there — "penumbras" and "emanations" — and stretching the Commerce Clause to give the federal government a license to do anything it decides it wants to do. That's the judicial activism conservatives object to.

What is Obama trying to do with his healthcare legislation? Why, he's trying to find something in the Constitution that isn't there — a federal power of authority to force people to buy a commercial product — and he's trying to stretch the Commerce Clause to make room for this new "emanation." As always, conservatives object to the ploy. Where is our inconsistency?

Judicial activism does not consist of saying: Sorry, this legislation can't be made to fit the Constitution as written. That's just everyday evaluation of the laws, which is what the Supremes are paid to do.

Judicial activism consists of saying: Well, this legislation can't be made to fit the Constitution as written; but if we just twist and tweak the Constitution a wee bit, and ignore the plain intent of those who wrote it, we can make the law fit. That's judicial activism. That's what liberals do. That's what conservatives object to.

05 — The judiciary is not our friend.     Having said all that, I'm going to walk back just a wee bit. Please just set aside the particular case we're embroiled in — the case of the constitutionality of Obamacare — please set that aside for just a moment.

Right now, because of the skepticism we heard from the bench at last week's oral arguments on Obamacare, right now we — we conservatives — are all cheering on the Supreme Court. I think we should curb our enthusiasm.

Yes, Obamacare is a monstrosity; and yes, there looks to be a fighting chance the Supremes will knock it on the head, if Justice Kennedy proves not to be the snake in the grass I suspect him of being capable of being. If it happens, I'll applaud with the rest of you.

It remains the case that the judiciary, taken overall, is no friend of conservatism. It is staffed by the products of our law schools, which for a generation now have been nests of left-liberalism and social activism. What was the name again of that Constitutional Law professor I was talking about a segment or two ago? He was not an outlier. Our law schools are stuffed up to the skylights with instructors like that.

Let's remember, please, that it has been the federal judiciary driving most of the revolutionary changes in American society this past fifty years, from striking down school prayer, through Roe v. Wade, to the curtailing of capital punishment, the invalidating of state sodomy laws, and the apparently endless prolonging of affirmative action. When the people of some state express their opinion, in an election or a referendum, that the flood of incoming illegal aliens is a problem on which the state has some right to act, it's the federal judiciary that hinders and obstructs them.

The U.S. Supreme Court contains at least three radical left-wing social activists, determined to do all they can to impose a far-left social agenda on this mildly right-of-center nation. With a run of bad luck across a couple of administrations, that number could double. As best I can understand the intentions of our nation's founders, they meant there to be lively tension between the three branches of government; but they regarded Congress, being the voice of the people, as first among equals. I've done my share of heaping scorn on the congresscritters, but at least we can get rid of them. To get rid of a Supreme Court justice there is no recourse but impeachment, which itself has to proceed through Congress.

So while we're enjoying the spectacle of that lively tension in open view, and cheering on those justices who've expressed skepticism about Obamacare, let's remember what the judiciary is capable of. And let's remind ourselves that with all those noble checks and balances, we are at last a representative democracy, and that when we contemplate the ills of our republic, as Calvin Coolidge was wont to say: The remedy is in the ballot box.

06 — Notes from underground.     That's really far too much constitutional commentary from a guy who missed high school civics. In my defense, I'll just add one more thing.

I actually have a mole in the law-school establishment — a good friend who teaches in a high-ranked university law school. My friend occasionally sends me gems from the presses of the nation's law schools. As it happens, my friend sent me one such just today.

The author is someone named Richard Delgado at Seattle University School of Law. That particular law school ranks only no. 84 among law schools nationwide in the U.S. News & World Report lists, but no. 1 among legal writing programs, and no. 16 for public interest law in the National Jurist listings.

Mr. Delgado is of course a faculty member at the law school. He's been a law professor for well over 20 years, and is credited on the Seattle University website as, quote, "the first to question free speech ideology; he and a few others invented critical race theory," end quote. Just savor that phrase "free speech ideology." See, this free speech stuff, it's just a wacky ideology,like austrofascism or anarcho-syndicalism.

Well, the particular publication my mole directed my attention to bears the title: "Authoritarianism: A Comment." It will appear in a forthcoming issue of the Rutgers Race and the Law Review. I'm going to read you the entire 126-word first-person abstract. You sitting comfortably? Here we go. Quote:

What is behind the current wave of anti-immigrant fervor? Racism? Nativism? National security concerns? A recent article by Camilo Ortiz posits that psychological authoritarianism explains the recent outbreak of vigilantism and harsh law better than any of these other motives. My essay agrees with Ortiz and shows how understanding anti-immigrant sentiment in these terms advances our understanding of it. Once one understands how the syndrome underlies much of the current reaction toward immigrants, particularly ones from south of the U.S. border, it becomes easier to frame measures to limit some of its excesses. I argue that Mr. Ortiz's interpretation constitutes a significant advance in our understanding of social attitudes toward immigration and immigrants and can pave the way toward more sensible policies in this troubled area.

End quote. Listeners familiar with 20th-century intellectual history will detect the influence of Theodor Adorno, who argued in the years after World War Two that middle-class respectability was a form of mental illness, and led directly to fascism.

That, ladies and gentlemen is a not untypical product of today's legal education system. So yes, by all means cheer on the Supremes if they look like striking down Obamacare. Never think, though, that the judiciary at large is any friend of conservatism. "The remedy is in the ballot box," hardly ever in the law-school lecture room.

07 — Obama's uncle back on the road again.     To speak about the federal power and about law, all in the same breath, anyway opens the door to bitter cynicism. Some of the key laws the federal government is entrusted with enforcing are left un-enforced, because the federal executive, for cold political reasons, wants to pander to constituencies who'd prefer them not enforced.

Poster boy here: Onyango Obama, the president's uncle, an illegal immigrant from Kenya. Last week Radio Derb reported on Mr Obama having had his Massachusetts driver's license suspended for 45 days after he admitted to driving drunk. Mr Obama is manager of a liquor sotore in Framingham, Massachusetts; so the Scarface rule may be worth re-stating here: "Don't get high on your own supply." Anyway, the news last week was that Mr Obama's driver's license had been suspended.

This week's news is, that with one bound he was free! Yes, Mr Obama has been given a hardship driver's license from the state Registry of Motor Vehicles. A hardship license is what you get if you can show that not having a driver's license poses an undue hardship on your livelihood — in this case, Mr Obama's livelihood as a liquor-store manager. In applying for the hardship license, Mr Obama fortified his case with a letter from his employer, Conti Liquors, and also with proof — maybe it was 120 proof, maybe 150 proof, I don't know — that he'd enrolled in an alcohol-treatment program. Apparently there is no public transportation in Framingham.

So the state law that deprived Mr Obama of his driver's license is just a joke law. They put up this elaborate, quite expensive show of a judicial proceeding, with a ruling from the bench and a sentencing, but they don't mean it. It's just pretend: like a children's game, like the pretend federal law that says, direct quote from Section 8 U.S. Code 1324(a)(1)(A)(iv)(b)(iii), quote: "It is unlawful to hire an alien, to recruit an alien, or to refer an illegal alien for a fee, knowing the illegal alien is unauthorized to work in the United States. It is equally unlawful to continue to employ an illegal alien knowing that the illegal alien is unauthorized to work." End quote. That's a joke law, too; that's a pretend law, too; or, if it's not, why is Conti Liquors of Framingham, Massachusetts not explaining themselves to a federal judge?

How are we supposed to know which of the laws on the books are joke laws, and which are real laws, that will get us into real trouble with the authorities? Well, you could ask a law school professor. I have Richard Delgado's email address at Seattle University School of Law, if you'd like to ask him about it.

08 — Eric Holder: "Affirmative action for ever!"     Boy, Radio Derb really is on a legal jag this week. Here's another typical product of the nation's law schools: Eric Himpton Holder, Jr., current Attorney General of the United States, graduate of Columbia Law School, national ranking no. 4.

It's an interesting thing that when you have a leftist administration in power, a good half of their leftist passion seems to concentrate in the person of the Attorney General. Remember Janet Reno? Bill Clinton was, with all his faults, in many ways an easy-going, practical-minded sort of fellow: but for his Attorney General he appointed this terrifying feminist golem, graduate of Harvard University Law School, national ranking no. 3.

Anyway, here's our current A-G, Eric Holder. I'm somewhat late with this: I just picked it up from our Phi Beta Cons blog, February 28. Roger Clegg is commenting on an interview of Eric Holder, the interviewer being Lee Bollinger, President of Columbia University. The interview was published in the Columbia Spectator, February 24, and you can read a summary of it for yourself, if your stomach is strong enough, on columbiaspectator.com.

The part that got Roger's attention, and mine, is about of a third of the way down the Columbia Spectator report. Bollinger has mentioned the Supreme Court's decision in February to reconsider affirmative action. Holder expressed his support for affirmative action, saying that he, quote, "can't actually imagine a time in which the need for more diversity would ever cease." Then he said the following, quote: "Affirmative action has been an issue since segregation practices. The question is not when does it end, but when does it begin? When do people of color truly get the benefits to which they are entitled?" End quote.

I can't improve here on the comment by Jack Rosenberg of the Discriminations blog, quote: "So, a black Ivy League college and law school graduate appointed Attorney General by another black Ivy League college … and law school graduate defines affirmative action as blacks getting, inner quote, 'the benefits to which they are entitled,' but doesn't believe that has even started yet? He obviously believes his grandchildren, if he has any, deserve preferential treatment because of their race. Perhaps in his next career Holder can be a stand-up comedian." End quote.

For me, reading Holder's remark that he, quote, "can't actually imagine a time in which the need for more diversity would ever cease," something came floating into my mind, but I couldn't place it for a while. Then I got it. Listen: [George Wallace: "Segregation now, segregation tomorrow, segregation for ever."]

That was fifty years ago. In half a century we've gone from George Wallace saying "Segregation now, segregation tomorrow, segregation for ever" to Eric Holder saying "Affirmative action now, affirmative action tomorrow, affirmative action for ever." Is this progress? I guess so, of a sort; though a cynic might argue that segregation was just affirmative action for white people.

It sure would be nice, though, if we could get our society to a point where there was no legal or administrative favoritisim for any race. Shall we ever get to that blessed state? Perhaps after another fifty years … though not if Eric Holder has anything to say about it.

09 — The Trayvon Martin case (cont.)     The Trayvon Martin case rumbled on, with a scattering of new facts coming to light, most of them bolstering the story George Zimmerman originally told the police.

We still don't know what happened that night in Sanford, Florida, but we can at least eliminate some negatives. And the real story remains the disgraceful negligence and sometimes downright dishonesty of the mainstream media.

The real journalistic legwork here has been done by bloggers. To name just one, Josh Vogel at the wagist.com website has done terrific work on the case, publishing maps and photographs of the scene, with all the key points in the incident marked — where Zimmerman parked his truck, where Martin's father was staying, where the shooting occurred — and carefully worked-out timelines, down to the second, for the phone calls and the movements of the two parties. One thing that comes out clearly is that, to quote Josh, quote: "Trayvon Martin had plenty of time to make it back to his temporary residence … if he had wanted to." End quote. Plainly he didn't want to.

All this journalist legwork, all this obtaining of telephone logs and 911 dispatcher records, all this mapping and timelining, is the kind of thing professional journalists should have done.

What they were in fact busy doing, all those high-priced graduates of Columbia Journalism School, was shoring up the narrative they'd decided on when the story broke, the narrative about a racist Southern vigilante hunting down and killing a defenseless child. Or, in the case of the prestigious NBC, actively doctoring the recording of one of Zimmerman's calls to make it sound as though Martin's blackness was the focus of his interest.

This whole case raises the issue: What do we need the mainstream media for? They are useless. Here's Josh Vogel, sitting at home in his pajamas, doing the work they should have been doing. The big takeaway from this story is that the mainstream media is a joke, and a pretty unfunny joke at that.

Meanwhile, on the story itself, the rumor going round is that Angela Corey, the state attorney appointed by Florida Governor Rick Scott as the special prosecutor, will rule that George Zimmerman not be prosecuted. There is no more evidence against Zimmerman now than there was when the state first declined to prosecute; if anything, the reverse. Jeff Triplett, the mayor of Sanford, said this Thursday that he's, quote, "preparing for the worst." If those rumors are right, and you live in Sanford, the watch-word for the day will be: Katy bar the door.

10 — Signoff.     Out of time, I'm afraid, ladies and gents, with no room here for our normal closing miscellany.

Blame the poor planning there on my somewhat depleted and depressed condition. To cheer me up, and take all our minds off that dry legal stuff, here's Gracie Fields, the Lassie from Lancashire — same place my Dad came from.

More from Radio Derb next week. Take it away, Gracie.

[Music clip: Gracie Fields: Sing As We Go]