M. Edward Whelan III
President of the Ethics and Public Policy Center
GLENN: 888 727 BECK, 888 727 BECK. I’m sorry but my eyes don’t work as well. I go into the break and I start to quote this, I look over to quote this from Oliver Wendell Holmes and I can’t even see it because my microphone is away from the screen. This comes from a case, Barack Obama said that you know, he quoted Oliver Wendell Holmes and said, you know, we need people who are of great experience, we need people who have life experience to be able to do it. That’s why Oliver Wendell Holmes, that’s why he went to the Supreme Court. He had had life experience. He was a great guy. Everybody loved him.
There was this case, Buck versus Bell where there was this woman, her name is Carrie Buck. She was in an institution and she was institutionalized because she was considered sexually promiscuous. She was committed there to a state institution because she had she was promiscuous, they didn’t know something was wrong with her, et cetera, et cetera, and they knew this because she became an unwed mother at the age of 17. She had been raped. The daughter was diagnosed as being not quite normal at the age of six months. So what did Oliver Wendell Holmes, a guy that Barack Obama quotes today as saying we need somebody that, as Oliver Wendell Holmes said, somebody of great experience for this role. Oliver Wendell Holmes, the Supreme Court justice, said that it is better for all the world if instead of waiting to execute degenerate offspring for a crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit for continuing their kind. Three generations of imbeciles are enough; sterilize her. By the way, as it turns out they were wrong about her and as it turns out Oliver Wendell Holmes was wrong about eugenics. But why even get into eugenics when we have the progressive philosophy being touted now by a whole new class of politicians.
We have now somebody who says, "I hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion as a judge than a white male who hasn’t lived that life." We heard about her experiences. Quite honestly her experiences tell me she shouldn’t be a progressive! Her experiences tell me this woman should be more in line with the Constitution than anything else. She comes here, her parents can’t speak English, her father dies. She works hard. Her mother goes and buys the only set of encyclopedias that she can get in the entire neighborhood. She teaches her children to speak English, that you can do it. The brother goes on to be a doctor, she becomes a judge, she gets scholarships from Princeton and, is it Harvard? Yale? I mean, yeah. It looks like there’s some people who take their adversity and break their spirit and for some reason those people are constantly the ones telling everybody else that they can’t make it.
Well, what does Oliver Wendell Holmes say? Three generations of imbeciles are enough. How many generations do we have to buy into this progressive line before we say enough?
We have Ed Whelan. He is the president of Ethics and Public Policy Center, also with the National Review. Ed, tell me what you think of the appointment and the speech that just happened.
WHELAN: Well, I think President Obama has followed through on his threat to pick someone who will indulge her own biases, her own policy preferences. We see that with Sonia Sotomayor in a big case that’s before the Supreme Court right now. We’ll get a ruling in the next few weeks where lo and behold firefighters who are risking their lives to defend us were not recipients of her empathy. These are firefighters who passed an exam, had been carefully vetted, didn’t like the racial profile of the results and threw out the exams and the promotions and what’s worse, Sotomayor not only ruled against them, they tried to bury their claims in a way that no one would ever know what’s going on and right now the Supreme Court’s deciding that case.
GLENN: Okay, well, she actually if I’m not mistaken, she actually punted and she said, well, it doesn’t look like there’s any discrimination here because, well, I mean, they didn’t, they didn’t advance anyone, the city didn’t advance anyone.
Can I ask you a question, Ed? If the city would have had a test to find out who advances and in this case all of them were white or Hispanic and not African American and then the city would have come out and said, if it was reversed and they would have all been black and the mayor was black and he said, you know what, we’re just not going to we’re not going to advance anybody or if the mayor was white, wouldn’t be a case of racism there that, well, we don’t that’s not the race we want; so we’re not going to take it. We’re just going to dismiss this test and we’ll do some other test later. If that happened in the South, it would have been racism.
WHELAN: Well, that’s what happened here. It’s clear the City of New Haven threw out the results of the promotional exam because they didn’t like the race of those folks did well on the exam which, by the way, included one Hispanic firefighter. This was a test that had been carefully vetted, that folks spent thousands of dollars and lots of hours studying for and when the city didn’t like the result, they said too bad, you are not going to get the promotion. Well, how is that honoring people who put their lives at risk in public service and, look, at 9/11 we understood for a while what firefighters do. We understood the importance of having people who know how to do their job right, the importance of exams and making sure we have the right leadership and Sonia Sotomayor, you know, sacrificed all of that on the altar of political correctness and racial quotas.
GLENN: Let me play this piece of audio and get your thoughts on it. Go ahead.
(BEGIN AUDIO CLIP)
SOTOMAYOR: All of the legal defense funds out there, they are looking for people with court of appeals experience because court of appeals is where policy is made. And I know, and I know this is on tape and I should never say that because we don’t make law, I know. Okay, I know. I know. I’m not promoting it, I’m not advocating it. You know. (Laughter).
GLENN: She’s just recognizing that that’s true.
WHELAN: Well, it’s an unguarded moment where she says what folks on the left think which, their job is to use judicial robes to make sound policy and the law is largely a vessel for them to fill with their own preferences. And that’s you know, that’s again what she’s clearly shown. The firefighters case, that’s what she’s shown, discussing her understanding of her role as a judge and as a Latina. And that’s not the proper understanding of the role of the courts.
GLENN: You think she’s going to sail through or there’s going to be a fight.
WHELAN: Well, obviously the Democrats have an overwhelming majority in the Senate. I think the challenge is to make sure Americans understand what’s at stake here. When she was confirmed in the second circuit, there were some 29 votes against her including from Republicans like current Republican leader Mitch McConnell and the ranking member of the judiciary committee, Jeff Sessions. I think there will be scrutiny and there ought to be and folks will be looking carefully at her record and at her statements and figuring out is this really what we need on the court, folks who indulge their own policy preferences, who make up the law as they go along.
GLENN: Ed, what is the one thing that people should take away from this today? What is the thing that you say, gosh, if America would just understand this or if they would just ruminate on this one thing, what would it be?
WHELAN: Well, I would ask folks to take a careful look at this New Haven firefighters case and just see what happens when unbridled empathy is permitted to be indulged here. Sonia Sotomayor wielded her empathy in one direction for those firefighters who didn’t pass the exam and she sacrificed the interest of those who had worked hard and did pass the exam. So what we see is empathy is a wild card as your example of Justice Oliver Wendell Holmes directed and we shouldn’t have entrenching in the law.
GLENN: And I wonder what her folks would say if she had worked hard but somebody else had gotten her scholarship to Princeton that was less qualified because Princeton had said, well, no, but she just doesn’t fit the mold. I wonder what her parents would have said. I wonder what she would have said.
WHELAN: Well, she’s obviously been a beneficiary of these gender and ethics policies along the way. So I wonder whether she’s really thought very carefully about that. Again I would hope the firefighters case would force her and others to reflect on what fair treatment really consists of.
GLENN: Ed, what is at the end of I mean, I’ve never seen a president have you ever seen a president talk about empathy like this with a Supreme Court nominee?
WHELAN: I think Barack Obama’s statements go far beyond what any president has ever said. Now, he’s trying to walk them back now. He is trying to make it seem as though his proposal is more modest than it is. But you look back at what he said when he opposed John Roberts for the Supreme Court. You look at what he said at the Planned Parenthood action when he was running for President.
GLENN: Wait, wait, tell me what he said.
WHELAN: Exactly what he said on his vote about John Roberts was that in difficult cases and here’s an exact quote for you a critical ingredient is supplied by what is in the judge’s heart. He said that, again in these cases, the results only to be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works and the depth and breadth of one’s empathy.
GLENN: Did he say that in a bipartisan fashion, though?
WHELAN: Well, he said in an in a bipartisan fashion of voting against the nomination of chief justice Roberts. So that doesn’t seem to be very bipartisan.
GLENN: And then what did he say about Planned Parenthood, did you say?
WHELAN: Sure, very much along the same lines, talking about what he calls the criterion but which selecting judges. He said we need somebody who’s got the heart, the empathy to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African American or gay or disabled or old. He’s talking about selective empathy here, invoking empathy on behalf of particular parties, not others. Favoring those, exactly what Sonia Sotomayor did in this New Haven firefighters case. That’s not a justice being neutral. It’s favoring one party over another, tipping the scales, and that’s not what the Supreme Court ought to be about.
GLENN: Ed, thank you very much. I appreciate it. Back in a second.