M. Edward Whelan III
President of the Ethics and Public Policy Center
GLENN: I mean, is it just me? Can we turn the head phone volume down? Is it honestly, is it just me that just can't take the nightmare that is the news of the day. I mean, my gosh, it just never stops. Does anybody else want a nap? Is there anybody else that wants a nap? I've got to tell you I look at the news of the day and I think to myself, stop! I can't take anymore. We've got the swine flu, we have huge economic problems, we've got the problems in Iran and North Korea, we have the government firing CEOs, taking over. And last night Souter, you're like, you've got to be kidding me. Now, the only thing that's good about it is I mean, you could get a much worse judge, don't get me wrong, but I mean, it's not going to change anything. I mean, he's already a nightmare. How did that happen? Can anybody ever tell me if there's ever been a judge that the Democrats picked and all of a sudden it turned out to be, you know, Bork? Had that ever happened? Is anybody like, oh, yeah, you guys are going to love him; he is going to be for pot smoking abortion doctors. And then all of a sudden he turns out to be Robert Bork? How come that only happens to conservatives? That's what they want you to believe. Uh huh.
Wait a minute, hang on. This one came from George H. W. Bush, uh huh. No, he's he wasn't progressive at all. We have Ed Whelan on the phone. He is from National Review. Ed?
WHELAN: Yes, Glenn.
GLENN: Ed, are you there?
WHELAN: Yes, I am, Glenn.
GLENN: Can it get worse?
WHELAN: Yes, it can and it will.
GLENN: It's Friday, man, help me out a little bit.
WHELAN: Souter is a terrible justice but you can expect Obama to be even worse.
GLENN: It's not going to change the makeup or anything, is it?
WHELAN: It's going to entrench the bad five justice majority that we have and as new justices come on and have different agenda, it does affect things. So and, of course, it removes a huge opportunity to improve the court. So I don't think we can take comfort in the fact that the already bad court will simply continue to be bad, especially since there are a whole lot of issues on the horizon that the Court will be deciding in coming years and the justice that Obama appoints will probably be the fifth vote for things like imposition of the federal constitutional right to same sex marriage, stripping "Under God" out of the "Pledge of Allegiance," continuing to abolish the death penalty on the installment plan, micromanaging the government's war powers, inventing a constitutional right to human cloning. We can go on and on. Look, people have different policy views on these issues. I'm not saying that there's a single policy view that people need to adopt. What I am saying is that our Constitution leaves these issues to American citizens to work out through their elected representatives. It does not give the power to Supreme Court justices to impose their view on them, but that is clearly what Obama means to do.
GLENN: I have to tell you, when did that go away? When did the idea Judge Napolitano and I were talking the other day about the Dred Scott decision and there were Americans that said, I ain't abiding by that, I don't care; if that's what the Supreme Court says, I don't care; you can throw me in jail. When did we become this country where we legislate from the bench and then we just take it?
WHELAN: Well, that's a very good question. I'll tell you that the Supreme Court itself never stated that it had this final authoritative role supreme over all the other branches until 1958, but a lot of people pretend that this is rooted in Marbury versus Madison, which is a gross misreading of that 1803 decision. We live now in an era in which people have become accustomed to judicial supremacy and think that the Supreme Court can willy nilly decide all these issues. It's understandable that people think that because that's been the practical reality for the last several decades.
GLENN: Right. That's what everybody says. And, well, the Supreme Court, they have to decide. But what it's turned into is the supreme council in Iran where it's just this group of men and they decide, you know, on what it's going to be. They pick everything. They pick the rules and the people don't have anything to say. They are not God. They work for us.
WHELAN: That's right. We have a system of government now by judiciary. The adjutant supreme and Supreme Court modifies court. It's talking about that court's role in the judicial system. It is not an assertion that the Supreme Court sits above the executive branch or the legislative branch. We've somehow lost, you know, an elementary understanding of basic separation of powers, principles.
GLENN: So who do you think's going to be nominated? What I hay well, I really don't want to make any predictions. There are so many bad choices to choose from that, you know, it's likely to be
GLENN: Throw a couple out there. Show me how bad it could get.
WHELAN: Let me talk about, well, you know, Harold Koh has been on the short list.
GLENN: Oh, jeez.
WHELAN: I know you've been talking about his nomination. The department of legal advisor, he has crazy views across the board. You take Deval Patrick.
GLENN: You know, Ed, let's stop here on Harold Koh for a second. Explain to people why Harold Koh I mean, here's a guy who's going to be writing and approving all of our treaties, them legally. Explain why Harold Koh is so dangerous because there are a lot of Republicans that are like, oh, no, he's not that bad. Those are the progressive transnationalist Republicans. Why is Harold Koh bad?
WHELAN: Well, from what I can tell, the Republicans who support him haven't bothered to look at his record. I know that from private communications with some of them. Look, Harold Koh believes that international law and foreign law should be imported into and imposed on American citizens. He has various means of doing that. One is that he favors reinterpreting constitutional provisions so that they COM port with ever changing rules of international and foreign law. He's explicit on that. I've spelled it out. No one's refuted it. What that means in practice is he wants to subordinate the American Constitution to foreign and international rules. We see that in his attack on First Amendment free speech principles which he finds opprobrious. We see that in his invention of rights to same sex marriage and abolition of death penalty. He also wants to use the sound to folks, that's how he wants to use cover, he wants to use so called customary international law which he says is generated by meetings of leftwing activists and UN conferences. He views that as binding federal law in the United States, and he says that if the United States rejects a treaty that 150 countries have signed onto, the terms of the treaty are nonetheless binding on the United States as customary international law. You know, he believes that the United States should never be able to engage in preemptive self defense, no matter how imminent or severe the threat. You can go on and on. He may be mainstream in the leftwing cesspool of legal academia but he's far he's a radical pick and the worst possible pick for this position where he will have influence on a broad range of matters. Indeed he himself has identified the value of occupying strategic institutional choke points where folks like him can have inordinate influence on the importation of international law into the American system.
GLENN: We're talking to Ed Whelan. He's the president of Ethics and Public Policy Center and also writes for the National Review and we're talking about Souter that, you know, he's now leaving. And Souter isn't a I mean, Ginsburg is a transnationalist, and this seems to be the next step of where we're going to where we just look to other countries and say, well, that's where the that's where everybody is going anyway. So we should go there as well. They are not looking to our law. They are not looking to our Constitution. They are looking to international law and the direction of the world saying that that's how we should apply and that's how we should start making decisions. Who else is on the list that you think could be brought up?
WHELAN: Oh, well, there are folks like Deval Patrick, the governor of Massachusetts, who has made some incredibly extreme arguments on racial matters, Cass Sunstein who's
GLENN: Wait, wait. Like what?
WHELAN: Well, he claimed a couple of years ago that the Supreme Court was on the verge of overruling Brown versus Board, you know, an outrageous misrepresentation of the case before the court. He's taken he argues that once the court speaks, that's the end of it. Just again extreme judicial supremacist. I've spelled out his views in a lengthy post, digging out now to run through more but, you know, he has oh, when he was assistant attorney general in the Clinton administration, he advocated an aggressive set of quotas that got even Clinton appointees to say that what he was doing was completely lawless. So he is as far left as you can go as a racial extremist.
GLENN: Anybody who's listening to me now in Pennsylvania, I just want to ask you if you voted for Arlen Specter, you knew are you now still saying that the people who didn't vote for Arlen Specter threw away their vote? You not only threw away your vote, your vote was now betrayed and Arlen Specter is going to play a role in this. Ed?
WHELAN: Glenn, let me mention just another candidate. A Hispanic judge on the second circuit who's prominently mentioned primarily because she's Hispanic and female, she's the judge who helped bury the firefighters' claims in this case that's now before the Supreme Court. We had firefighters in New Haven who studied hard for a promotional exam that had been embedded before him for its fairness. When they passed, the city decided it didn't like the racial composition of the folks who passed the test and it threw out the exam. And she tried to bury their claims in a one paragraph dismissive order that didn't even state what the case was about. And there's a fellow Clinton appointee, Jose Cabranes, a good judge who wrote a blistering dissent in the case saying that this is a completely irresponsible way to handle the case. She is a frontrunner here. You have, again there are plenty of others, happen to run through them but there's no one remotely good who happens to be under consideration.
GLENN: Any way to stop the steamroller? There's none?
WHELAN: You know, well, to be realistic about it, all we can hope to do is increase the political costs of a bad pick but, you know, realistically President Obama, you know, could get, you know, Bill Ayers confirmed these days.
GLENN: Yeah. No, I really think he could. And I think there's a lot of people in the population that will just be like, oh, stop with the Bill Ayers stuff; so what, he blew up a police station and the Pentagon; oh, stop it. There's a lot of people who would do that.
WHELAN: You would get letters from Republicans supporting him.
GLENN: I know. All right, thanks a lot, Ed, I appreciate it. He is the president of Ethics and Public Policy Center and also writes for the National Review.