Glenn Beck: Roger Pilan about the Sotomayor nomination



Roger Pilon is the Vice President for Legal Affairs for the CATO Institute


GLENN: Roger Pilon is the vice president for legal affairs at the Cato Institute and also director for the Center For Constitutional Studies. Roger, how are you, sir?

PILON: Well, thank you, Glenn.

GLENN: Well, tell me about Justice how do you say her name? Sotomayor?

PILON: Sotomayor.

GLENN: Tell me about her.

PILON: Well, she was a judge on the second circuit. She was before that a district court, federal district court judge named by the first George Bush, elevated to the second circuit by President Clinton, and she has a very attractive history. She came up the hard way, so to speak. Her father died when she was 9 years old. She was brought up by a single mother thereafter. She went to Princeton, went to Yale Law School and served as a U.S. attorney, assistant district attorney in New York. But there is a lot of negative as well, and it's going to come out in these hearings.

GLENN: Well, hang on. Hang on, I didn't I didn't hear really the positives there. I mean, I know she had a tough life and, boohoo, cry me a river, a lot of people had a tough life.

PILON: Yep.

GLENN: And then she went to Yale and Princeton which kind of goes against the tough life thing, but maybe that's just me. What are the strengths that she has? I hate to boil it down to, you know, content of character kind of issues, but what has she done that has she done anything that is a positive when it comes to looking at the Constitution?

PILON: Well, you maybe want to rephrase that question this way: Were she not female and Hispanic, would she be nominated.

GLENN: The answer to that is no, and I know nothing about her.

PILON: That's right. And the reason is this, that the left is fairly salivating for someone who will be intellectually powerful and an effective voice against the intellectually powerful people like Antonin Scalia, John Roberts and so on.

GLENN: I

PILON: And the question is, is she going to be this kind of person? And there is concern on the left that she will not.

GLENN: Okay, I have heard that she is, in the second court of appeals that she is almost a bully at times, that she has the image of not being that intellectually bright. I don't know if this is true or not. This is one piece of analysis that I heard today: She's not that intellectually bright and she's almost a bully. She just loves to hear herself talk.

PILON: This is widely held. You can see a piece in the New Republic on May 4th by Jeffrey Rosen, their Supreme Court correspondent, that addresses that issue, drawing from a number of Democrats who have clerked and who known her over the years. So there is that. But without question, Glenn, the case that is really going to come to the fore is this Ricci V. DeStefano and that's the New Haven firefighters case, just for your audience who may not be familiar with it. This is a case brought by Ricci and several others, white firefighters including one Hispanic, by the way, who got high marks on the exam for officer, firefighter officer. And when the results did not come out right, the city threw the test out. So Mr. Ricci brought suit. He was dyslexic. He had studied long and hard for this. He had spent a substantial amount of money getting the tests put into recorded form so that he could study for it, and he came out number 6, I believe it was, in the order and therefore was a prime candidate for elevation to an officer. The Court threw it out, and the district the district court threw it out. The appellate court, the panel on which Judge Sotomayor sat, all but dismissed the case, gave a perfunctory disposition of it. Indeed in a response to Judge Cabrenas, a colleague of Judge Sotomayor on that court, he said it contains no reference to the constitutional court to the claims of the core of this case, a perfunctory disposition, rest with the weighty issues addressed by this appeal. In other words, it was a classic affirmative action case in which she stood for affirmative action and it is going to come down from the Supreme Court next month. The oral arguments suggest that the Supreme Court is going to reverse the second circuit and so if these hearings are going to be held in July, it will be right after that decision comes down and they will be stormy hearings, I predict.

GLENN: Okay. So she was against and explain the there's some sort of law that even if this test, even if none of the questions were like are you black or are you handicapped; if so, you're out, even if there was no evidence that there was any kind of racism in this test, if the results of the test are that, hey, select group of people, whichever group that is, didn't make it into the top, then that can be deemed racist because of its effect? Is that right?

PILON: This is the way the court in effect decided it. Now, I ask you, if it had turned out that the African Americans had come out on top, the Court surely would not have sustained and the city would not have thrown out the results and, of course, if it had, the court would have found this to be a violation of equal protection. So I mean, we have we're just about as blatant a case of race discrimination as you could possibly ask for and yet she sat on this panel and found nothing wrong. There's the nub of the matter right there.

GLENN: Roger, let me ask you one more question, then I want to ask you about another big case coming out today. When she has to take the oath of office, why has no one been challenging Barack Obama when he says he wants somebody of empathy, and she's quoted in one of her lectures saying that she really, you know, she just hopes that a Latina woman with rich experience is appointed to the court, et cetera, et cetera; how come nobody is pointing out the oath that she's going to have to take, I solemnly swear that I will administer justice without respect to persons and do equal right to the poor and to the rich and that I will faithfully and impartially discharge? There's no empathy in you would have to violate your own oath to be empathetic. Why is there no challenge here?

PILON: Well, there is a challenge but they are by people who are being dismissed out of hand because it's politically incorrect to raise such a challenge. That's what we've come to, Glenn. This is a Constitution that has been so politicized in recent years that it's hardly indicative of the rule of law. It is an empty vessel in which transient majorities or judges 5 4 can pour their own conception of evolving social values.

GLENN: We have the audio of her. Can we play that, Dan? We have the audio of her speaking. Now, this is recorded on videotape, et cetera, et cetera. Listen to what she says about the role of the court.

(BEGIN AUDIO CLIP)

SOTOMAYOR: The role of the legal defense funds out there, they are looking for people with court of appeals experience because it is, 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. (Laughter). Okay. I'm not promoting it, I'm not advocating it, you know.

GLENN: Stop, stop.

(END AUDIO CLIP)

GLENN: She's clearly saying it and then trying to backpedal like, no, no, no, really, I mean, you can't I mean, this is the reality, Roger.

PILON: Yeah.

GLENN: What you are saying is an empty vessel, this is proof positive of it.

PILON: Absolutely. This is a wink and a nod, right, to the rule of law. It is saying in effect that we sit as one more legislative branch, making policy. And, of course, that is not what the Court is supposed to do. We call the Court the nonpolitical branch as opposed to the legislature and the executive because it is to decide cases brought before them by the law. That's why Lady Justice, Justicia is blindfolded.

GLENN: Roger, I don't know if you can answer this. When we come back you just tell me if you're not the guy to talk to on this. But the way they are going to they are going to rule today on Proposition 8 as well.

PILON: Yeah.

GLENN: Can you discuss that?

PILON: Well, I can, yes, but it's I can only give you the conventional wisdom on it because no one knows how the

GLENN: Right, right. But I have a question on this because there seems to be a very convenient loophole that I bet you my life the Supreme Court is going to take, and I'd love to get your opinion on it. We'll do that next.

PILON: Okay.

(OUT 9:45)

GLENN: 888 727 BECK. Roger Pilon is with us. He's vice president for legal affairs at the Cato Institute. And by the way, here's the quote. Here's the quote from Sonia Sotomayor. She said, quote: I would 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 that hasn't lived that life. Have you ever heard anything like that, Roger, before? I mean, you know, outside of KKK rallies or, you know, Nazi party speeches.

PILON: There are judges, there are judges out there who believe that. In fact, this goes way back to the 1930s when people argued that the judges make decisions based upon what they ate for breakfast that morning. And so this is an approach that has come from the school of legal realism, as it's called, and it's been around for some time. Of course, it is not our ideal of what a judge should do, but that's why as I said before the break, we have Lady Justice with the blindfold on because she really doesn't care whether the person before her is black or white, rich or poor. Her job is to apply the law in light of the facts before her. And that is what as Chief Justice Roberts put it in his confirmation hearings, it's like an umpire. The umpire calls balls or strikes not for the home team or for the visitors but as he sees them.

GLENN: Of course that's what a white male who hasn't lived life would say.

Roger, let me go to Proposition 8. Proposition 8, as far as I'm concerned, whatever you want to do in your own bedroom is your own business. Anybody who thinks that, well, we're just going to stop this at gay marriage if the state is involved, you have no intellectual but I mean, you know, neither does Sonia what's her face. You have no intellectual honesty. If you can say, well, we're going to make an exception here but not for triads but not for polygamy or anything else. You can't change one part of it without the other. I personally think, like California be California, Utah be Utah, call it a day, let's move on.

PILON: Well, this is a complex issue that can be approached on many levels. Let's start at the most basic level. Marriage is a contract. And who's to say what contracts people can enter into of various kinds.

Now, what's the state doing involved in this contract? Well, there are complicated reasons for that. Historical, for example, then there are children involved, at least in some marriages where the state has an interest. And then, too, there is the impremateur factor and that's the really tricky issue. It's one thing if you have contracts that are just simply recognized about I the state, but the state recognition tends to impose an impremateur and that's where you get into the political difficulties because there are lots of people, as in the State of California who don't want their impremateur to be placed on the political realm on this union of same sex couples. And it came out that way when it was put to a vote not once but twice in the State of California and so now you get to the Democratic dimensions. And if the Supreme Court of California overrides again the will of the voters

GLENN: They are going to.

PILON: then there is going to be some real consternation, I predict. That's why the conventional wisdom has it that there will be kind of a split decision, that is to say they will allow the proposition to stand but they will also allow those marriages that took place before that to stand as well.

GLENN: I think they are going to go for this new argument that it has to be introduced by the legislature with 3/4 vote and then brought to the people.

PILON: I see. You think that's the route? Well, it's possible, yeah.

GLENN: You don't think so?

PILON: I don't know. I mean, the California Supreme Court

GLENN: Crazy?

PILON: is a world all unto itself.

GLENN: If that happens and I've only got 30 seconds here. If that happens, shouldn't you go back in California and repeal every constitutional amendment that hasn't been done exactly that way?

PILON: Well, one would think that that would follow. But Glenn, let me tell you. The same sex marriage issue is the least of the problems in California today.

GLENN: I mean, it's just, it's really ridiculous. I mean, it really is. Like, "So North Korea's testing nukes. Hey, who won on American Idol?" Maybe that's just me. Roger, thank you so much, sir.

PILON: You're quite welcome.

From the moment the 33-year-old Thomas Jefferson arrived at the Continental Congress in Philadelphia in 1776, he was on the radical side. That caused John Adams to like him immediately. Then the Congress stuck Jefferson and Adams together on the five-man committee to write a formal statement justifying a break with Great Britain, and their mutual admiration society began.

Jefferson thought Adams should write the Declaration. But Adams protested, saying, “It can't come from me because I'm obnoxious and disliked." Adams reasoned that Jefferson was not obnoxious or disliked, therefore he should write it. Plus, he flattered Jefferson, by telling him he was a great writer. It was a master class in passing the buck.

So, over the next 17 days, Jefferson holed up in his room, applying his lawyer skills to the ideas of the Enlightenment. He borrowed freely from existing documents like the Virginia Declaration of Rights. He later wrote that “he was not striving for originality of principle or sentiment." Instead, he hoped his words served as “an expression of the American mind."

It's safe to say he achieved his goal.

The five-man committee changed about 25 percent of Jefferson's first draft of the Declaration before submitting it to Congress. Then, Congress altered about one-fifth of that draft. But most of the final Declaration's words are Jefferson's, including the most famous passage — the Preamble — which Congress left intact. The result is nothing less than America's mission statement, the words that ultimately bind the nation together. And words that we desperately need to rediscover because of our boiling partisan rage.

The Declaration is brilliant in structure and purpose. It was designed for multiple audiences: the King of Great Britain, the colonists, and the world. And it was designed for multiple purposes: rallying the troops, gaining foreign allies, and announcing the creation of a new country.

The Declaration is structured in five sections: the Introduction, Preamble, the Body composed of two parts, and the Conclusion. It's basically the most genius breakup letter ever written.

In the Introduction, step 1 is the notificationI think we need to break up. And to be fair, I feel I owe you an explanation...

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another…

The Continental Congress felt they were entitled by “the Laws of Nature and of Nature's God" to “dissolve the political bands," but they needed to prove the legitimacy of their cause. They were defying the world's most powerful nation and needed to motivate foreign allies to join the effort. So, they set their struggle within the entire “Course of human events." They're saying, this is no petty political spat — this is a major event in world history.

Step 2 is declaring what you believe in, your standardsHere's what I'm looking for in a healthy relationship...

This is the most famous part of the Declaration; the part school children recite — the Preamble:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

That's as much as many Americans know of the Declaration. But the Preamble is the DNA of our nation, and it really needs to be taken as a whole:

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

The Preamble takes us through a logical progression: All men are created equal; God gives all humans certain inherent rights that cannot be denied; these include the rights to life, liberty, and the pursuit of happiness; to protect those rights, we have governments set up; but when a government fails to protect our inherent rights, people have the right to change or replace it.

Government is only there to protect the rights of mankind. They don't have any power unless we give it to them. That was an extraordinarily radical concept then and we're drifting away from it now.

The Preamble is the justification for revolution. But note how they don't mention Great Britain yet. And again, note how they frame it within a universal context. These are fundamental principles, not just squabbling between neighbors. These are the principles that make the Declaration just as relevant today. It's not just a dusty parchment that applied in 1776.

Step 3 is laying out your caseHere's why things didn't work out between us. It's not me, it's you...

This is Part 1 of the Body of the Declaration. It's the section where Jefferson gets to flex his lawyer muscles by listing 27 grievances against the British crown. This is the specific proof of their right to rebellion:

He has obstructed the administration of justice...

For imposing taxes on us without our consent...

For suspending our own legislatures...

For quartering large bodies of armed troops among us...

Again, Congress presented these “causes which impel them to separation" in universal terms to appeal to an international audience. It's like they were saying, by joining our fight you'll be joining mankind's overall fight against tyranny.

Step 4 is demonstrating the actions you took I really tried to make this relationship work, and here's how...

This is Part 2 of the Body. It explains how the colonists attempted to plead their case directly to the British people, only to have the door slammed in their face:

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury...

They too have been deaf to the voice of justice... We must, therefore... hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

This basically wrapped up America's argument for independence — we haven't been treated justly, we tried to talk to you about it, but since you refuse to listen and things are only getting worse, we're done here.

Step 5 is stating your intent — So, I think it's best if we go our separate ways. And my decision is final...

This is the powerful Conclusion. If people know any part of the Declaration besides the Preamble, this is it:

...that all political connection between them and the State of Great Britain, is and ought to be totally dissolved...

They left no room for doubt. The relationship was over, and America was going to reboot, on its own, with all the rights of an independent nation.

And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

The message was clear — this was no pitchfork mob. These were serious men who had carefully thought through the issues before taking action. They were putting everything on the line for this cause.

The Declaration of Independence is a landmark in the history of democracy because it was the first formal statement of a people announcing their right to choose their own government. That seems so obvious to us now, but in 1776 it was radical and unprecedented.

In 1825, Jefferson wrote that the purpose of the Declaration was “not to find out new principles, or new arguments, never before thought of… but to place before mankind the common sense of the subject, in terms so plain and firm… to justify ourselves in the independent stand we are compelled to take."

You're not going to do better than the Declaration of Independence. Sure, it worked as a means of breaking away from Great Britain, but its genius is that its principles of equality, inherent rights, and self-government work for all time — as long as we actually know and pursue those principles.

On June 7, 1776, the Second Continental Congress met in Philadelphia at the Pennsylvania State House, better known today as Independence Hall. Virginia delegate Richard Henry Lee introduced a motion calling for the colonies' independence. The “Lee Resolution" was short and sweet:

Resolved, That these United Colonies are, and of right ought to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved.

Intense debate followed, and the Congress voted 7 to 5 (with New York abstaining) to postpone a vote on Lee's Resolution. They called a recess for three weeks. In the meantime, the delegates felt they needed to explain what they were doing in writing. So, before the recess, they appointed a five-man committee to come up with a formal statement justifying a break with Great Britain. They appointed two men from New England — Roger Sherman and John Adams; two from the middle colonies — Robert Livingston and Benjamin Franklin; and one Southerner — Thomas Jefferson. The responsibility for writing what would become the Declaration of Independence fell to Jefferson.

In the rotunda of the National Archives building in Washington, D.C., there are three original documents on permanent display: the Constitution, the Bill of Rights, and the Declaration of Independence. These are the three pillars of the United States, yet America barely seems to know them anymore. We need to get reacquainted — quickly.

In a letter to his friend John Adams in 1816, Jefferson wrote: “I like the dreams of the future, better than the history of the past."

America used to be a forward-looking nation of dreamers. We still are in spots, but the national attitude that we hear broadcast loudest across media is not looking toward the future with optimism and hope. In late 2017, a national poll found 59% of Americans think we are currently at the “lowest point in our nation's history that they can remember."

America spends far too much time looking to the past for blame and excuse. And let's be honest, even the Right is often more concerned with “owning the left" than helping point anyone toward the practical principles of the Declaration of Independence. America has clearly lost touch with who we are as a nation. We have a national identity crisis.

The Declaration of Independence is America's thesis statement, and without it America doesn't exist.

It is urgent that we get reacquainted with the Declaration of Independence because postmodernism would have us believe that we've evolved beyond the America of our founding documents, and thus they're irrelevant to the present and the future. But the Declaration of Independence is America's thesis statement, and without it America doesn't exist.

Today, much of the nation is so addicted to partisan indignation that "day-to-day" indignation isn't enough to feed the addiction. So, we're reaching into America's past to help us get our fix. In 2016, Democrats in the Louisiana state legislature tabled a bill that would have required fourth through sixth graders to recite the opening lines of the Declaration. They didn't table it because they thought it would be too difficult or too patriotic. They tabled it because the requirement would include the phrase “all men are created equal" and the progressives in the Louisiana legislature didn't want the children to have to recite a lie. Representative Barbara Norton said, “One thing that I do know is, all men are not created equal. When I think back in 1776, July the fourth, African Americans were slaves. And for you to bring a bill to request that our children will recite the Declaration, I think it's a little bit unfair to us. To ask our children to recite something that's not the truth. And for you to ask those children to repeat the Declaration stating that all men's are free. I think that's unfair."

Remarkable — an elected representative saying it wouldn't be fair for students to have to recite the Declaration because “all men are not created equal." Another Louisiana Democrat explained that the government born out of the Declaration “was used against races of people." I guess they missed that part in school where they might have learned that the same government later made slavery illegal and amended the Constitution to guarantee all men equal protection under the law. The 13th, 14th, and 15th Amendments were an admission of guilt by the nation regarding slavery, and an effort to right the wrongs.

Yet, the progressive logic goes something like this: many of the men who signed the Declaration of Independence, including Thomas Jefferson who wrote it, owned slaves; slavery is evil; therefore, the Declaration of Independence is not valid because it was created by evil slave owners.

It's a sad reality that the left has a very hard time appreciating the universal merits of the Declaration of Independence because they're so hung up on the long-dead issue of slavery. And just to be clear — because people love to take things out of context — of course slavery was horrible. Yes, it is a total stain on our history. But defending the Declaration of Independence is not an effort to excuse any aspect of slavery.

Okay then, people might say, how could the Founders approve the phrase “All men are created equal," when many of them owned slaves? How did they miss that?

They didn't miss it. In fact, Thomas Jefferson included an anti-slavery passage in his first draft of the Declaration. The paragraph blasted King George for condoning slavery and preventing the American Colonies from passing legislation to ban slavery:

He has waged cruel war against human nature itself, violating its most sacred rights to life and liberty in the persons of a distant people who never offended him, captivating and carrying them into slavery in another hemisphere... Determined to keep open a market where men should be bought and sold, he has prostituted his negative for suppressing every legislative attempt to prohibit or to restrain this execrable commerce.

We don't say “execrable" that much anymore. It means, utterly detestable, abominable, abhorrent — basically very bad.

Jefferson was upset when Georgia and North Carolina threw up the biggest resistance to that paragraph. Ultimately, those two states twisted Congress' arm to delete the paragraph.

Still, how could a man calling the slave trade “execrable" be a slaveowner himself? No doubt about it, Jefferson was a flawed human being. He even had slaves from his estate in Virginia attending him while he was in Philadelphia, in the very apartment where he was writing the Declaration.

Many of the Southern Founders deeply believed in the principles of the Declaration yet couldn't bring themselves to upend the basis of their livelihood. By 1806, Virginia law made it more difficult for slave owners to free their slaves, especially if the owner had significant debts as Jefferson did.

At the same time, the Founders were not idiots. They understood the ramifications of signing on to the principles described so eloquently in the Declaration. They understood that logically, slavery would eventually have to be abolished in America because it was unjust, and the words they were committing to paper said as much. Remember, John Adams was on the committee of five that worked on the Declaration and he later said that the Revolution would never be complete until the slaves were free.

Also, the same generation that signed the Declaration started the process of abolition by banning the importation of slaves in 1807. Jefferson was President at the time and he urged Congress to pass the law.

America has an obvious road map that, as a nation, we're not consulting often enough.

The Declaration took a major step toward crippling the institution of slavery. It made the argument for the first time about the fundamental rights of all humans which completely undermined slavery. Planting the seeds to end slavery is not nearly commendable enough for leftist critics, but you can't discount the fact that the seeds were planted. It's like they started an expiration clock for slavery by approving the Declaration. Everything that happened almost a century later to end slavery, and then a century after that with the Civil Rights movement, flowed from the principles voiced in the Declaration.

Ironically for a movement that calls itself progressive, it is obsessed with retrying and judging the past over and over. Progressives consider this a better use of time than actually putting past abuses in the rearview and striving not to be defined by ancestral failures.

It can be very constructive to look to the past, but not when it's used to flog each other in the present. Examining history is useful in providing a road map for the future. And America has an obvious road map that, as a nation, we're not consulting often enough. But it's right there, the original, under glass. The ink is fading, but the words won't die — as long as we continue to discuss them.

'Good Morning Texas' gives exclusive preview of Mercury One museum

Screen shot from Good Morning Texas

Mercury One is holding a special exhibition over the 4th of July weekend, using hundreds of artifacts, documents and augmented reality experiences to showcase the history of slavery — including slavery today — and a path forward. Good Morning Texas reporter Paige McCoy Smith went through the exhibit for an exclusive preview with Mercury One's chief operating officer Michael Little on Tuesday.

Watch the video below to see the full preview.

Click here to purchase tickets to the museum (running from July 4 - 7).

Over the weekend, journalist Andy Ngo and several other apparent right-leaning people were brutally beaten by masked-gangs of Antifa protesters in Portland, Oregon. Short for "antifascist," Antifa claims to be fighting for social justice and tolerance — by forcibly and violently silencing anyone with opposing opinions. Ngo, who was kicked, punched, and sprayed with an unknown substance, is currently still in the hospital with a "brain bleed" as a result of the savage attack. Watch the video to get the details from Glenn.