The Ben Shapiro Show - The Biggest Move In A Generation | Ep. 570

00:00:00.000 Justice Anthony Kennedy steps down and the world goes insane.

00:00:03.000 I'm Ben Shapiro.

00:00:04.000 This is The Ben Shapiro Show.

00:00:13.000 Today's show is now in order.

00:00:14.000 I'm not saying that I have inside information on who the president's going to pick or anything like that.

00:00:19.000 I'm not saying anything like that.

00:00:21.000 I'll give you all the updates on the news and we'll go through what this means.

00:00:24.000 The Justice Anthony Kennedy, who, as I have said many times on this program, made up his mind on how to vote based on whether he had his Metamucil that morning.

00:00:32.000 He's going to step down.

00:00:32.000 I'll explain everything that means in just a second.

00:00:34.000 First, I want to remind you that we have a special live stream this coming Monday, July 2nd, 7 p.m.

00:00:38.000 Eastern.

00:00:39.000 We'll be joined by special guest Jordan Peterson to celebrate Independence Day.

00:00:42.000 God King Jeremy Boren will host a new edition of Daily Wire backstage with me, Andrew Klavan, and Michael Knowles to look back on our country's birth and look ahead to its future with the world's most prominent Canadian.

00:00:51.000 Subscribers will even be able to write in live questions for us to answer on the air.

00:00:55.000 Again, that is Monday, July 2nd, 7 p.m.

00:00:57.000 Eastern, 4 p.m.

00:00:57.000 Pacific, with Jordan Peterson.

00:00:59.000 You can find our special live stream on Facebook and YouTube, so don't miss it.

00:01:02.000 And if you haven't heard this already, I will be taking The Ben Shapiro Show live to audiences in Dallas and Phoenix this August.

00:01:07.000 You'll be able to see me in person and join an audience Q&A.

00:01:10.000 Tickets are going fast.

00:01:10.000 Visit dailywire.com slash events to get in those last ticket orders right now.

00:01:14.000 Dailywire.com slash events to get your additional seats and info.

00:01:18.000 Alrighty, so before we jump in, first, let's talk about life insurance.

00:01:22.000 Now,

00:01:23.000 Normally, if you're sitting on the Supreme Court, you stay there until you die.

00:01:26.000 Anthony Kennedy, however, did not.

00:01:27.000 But we all, at some point, will pass.

00:01:29.000 And when we do, it will be a good idea for us to have had life insurance.

00:01:32.000 Because 71% of people say they need life insurance.

00:01:35.000 The real answer is 100% of people.

00:01:37.000 If you have family, if you have people who you'd like to benefit if you die, then Policy Genius is the place to go.

00:01:42.000 Because it's the easy way to compare life insurance online.

00:01:44.000 You can compare quotes in just five minutes.

00:01:46.000 When it is that easy, putting it off becomes a lot harder.

00:01:48.000 You can compare quotes while sitting on the couch watching TV or while listening to this podcast.

00:01:52.000 So go check it out.

00:01:53.000 Policygenius.com.

00:01:54.000 They don't just make life insurance easy.

00:01:56.000 They also compare disability insurance and renter's insurance and health insurance.

00:01:59.000 If you care about it, they can cover it.

00:02:00.000 So if you need life insurance, but you've been putting it off, check out Policygenius.

00:02:04.000 That's Policygenius.com.

00:02:05.000 There's no sales pressure.

00:02:06.000 There's zero hassle.

00:02:07.000 And it is free.

00:02:08.000 Again, there's no reason for you not to have life insurance.

00:02:10.000 The fact is that if something should happen to you and you leave your family without any sort of financial recourse, that is your own fault.

00:02:16.000 And there's no excuse for it.

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00:02:19.000 When it's this easy to compare life insurance, no reason to put it off.

00:02:21.000 Policygenius.com.

00:02:24.000 Okay.

00:02:25.000 So, yesterday, after we finished this podcast, Anthony Kennedy stepped down and blew up the world.

00:02:30.000 So, I was not expecting Justice Anthony Kennedy to step down from his position on the Supreme Court.

00:02:36.000 And the fact is that I think most people were hit by a truck over this.

00:02:40.000 Most people in the Trump administration were very surprised by this.

00:02:43.000 Maybe President Trump was not, because maybe he'd be having discussions with Justice Kennedy.

00:02:47.000 But there are a lot of people who are very surprised by Justice Kennedy stepping down, specifically because most of his legacy is going to be the gay rights stuff, right?

00:02:54.000 He was the lead writer in Obergefell, which was the case that suggested that same-sex marriage had to be the law of the land. 0.54

00:03:00.000 He was socially liberal on issues like abortion.

00:03:03.000 He stepped down while Trump was president and there was a Republican Congress.

00:03:07.000 And that cut against a lot of the conventional wisdom.

00:03:09.000 I, for example, thought that he was going to stick it out until there was a Democrat who was president so that his legacy would be maintained.

00:03:16.000 Instead, he decided to step down.

00:03:17.000 The reason I think he decided to step down, besides the fact that he's 81 years old, is because I think that he looked at the spate of rulings that the Supreme Court has issued over the last three weeks.

00:03:27.000 And what he saw was that there were four votes to overturn a lot of First Amendment protections.

00:03:31.000 There have been three major cases in the last couple of weeks in which five to four, the Supreme Court had decided in favor of free speech.

00:03:38.000 But if he were to be replaced by somebody from the left, then the left would immediately curtail the right to free speech.

00:03:43.000 So, for example, there was a case that I discussed at length yesterday on the podcast, this case in which the Supreme Court decided that you could not be forced to pay into a union for which you did not vote.

00:03:52.000 And Anthony Kennedy was on the majority side of that opinion.

00:03:56.000 He said that that was a violation of the First Amendment.

00:03:57.000 Well, there are four votes to say that the government can force you to pay money to an association like a union that you don't want to pay into.

00:04:04.000 Anthony Kennedy probably looked at that and he said, I'm not sure that I want to leave when a Democrat's in office because then there will be five votes in favor of the proposition that the government can force you to pay money to an association that you don't like.

00:04:15.000 And then there was a case that came down in the last couple of weeks, in which, for example, it said that it mastered the Masterpiece Cake Shop case, where it said that if you are a religious baker, you do not have to bake a cake for a same-sex wedding, but only, this was decided on narrow grounds, only because the regulation in question was badly promulgated by the Colorado Civil Rights Commission.

00:04:33.000 There were four votes in that case to basically suggest that any religious baker in the country can be forced, at point of government gun, to cater a same-sex wedding.

00:04:41.000 And Anthony Kennedy, even though he's a gay rights advocate,

00:04:43.000 So I think Anthony Kennedy looked at the radical left of the court and he said, I don't want my legacy to be the radical left of the court.

00:04:48.000 I'd rather that my legacy be the gay rights legacy. 0.96

00:04:49.000 My guess is that he went to Chief Justice Roberts and he got a guarantee from him

00:05:10.000 That Roberts would become the new swing vote if same-sex marriage were to come back up for reconsideration and Roberts will work to tamp that down. 0.75

00:05:18.000 The same-sex marriage stuff will stay enshrined in law and his legacy will be enshrined and he'll be fine and he will be able to step down from the court and be replaced by somebody who is more in line with his thinking on First Amendment issues. 0.69

00:05:29.000 Now all of that is speculation but that is my strong inclination is that that's what happened here.

00:05:34.000 In any case,

00:05:35.000 The Kennedy steps down and that of course opens up a slot on the Supreme Court and a swing vote on the Supreme Court because Kennedy has been the swing vote.

00:05:42.000 Kennedy has been the guy who makes the decisions in these 5-4 cases.

00:05:45.000 He's been the most powerful guy in the country for a long time and that is a testament to the fact that the Supreme Court has become far too powerful in American life.

00:05:52.000 You saw an enormous amount of gnashing of teeth and wailing and rending of garments from the left and tremendous excitement from the right at the fact that this seat is now open on the Supreme Court and Trump is going to get to fill it.

00:06:01.000 And the reason for that is that the Supreme Court has become entirely too powerful in the structure of American government.

00:06:07.000 If you go back and you look at the Federalist Papers, and we go through them every week here on the Ben Shapiro Show, when you go back and you look through the Federalist Papers, what you see is that they thought that the judiciary was going to be a relatively powerless arm of the government, that its job was basically going to be to sit there and say, this is constitutional and this is not, but not on the grounds that they don't like a piece of legislation.

00:06:25.000 In fact, the federal constitution didn't even apply to the states.

00:06:28.000 So the federal courts,

00:06:29.000 And the Supreme Court in particular, we're supposed to be relatively toothless.

00:06:32.000 Now the Supreme Court gets to decide whether everyone in the country is able to obtain an abortion, is able to kill babies.

00:06:39.000 The Supreme Court gets to decide whether anyone in the country is able to get married to anybody else.

00:06:42.000 The Supreme Court has entirely too much power.

00:06:45.000 And that is reflected in all of the focus on the Supreme Court.

00:06:47.000 That's because the left has taken the Supreme Court and used it as a tool in order to promulgate its agenda.

00:06:52.000 The left sees the Supreme Court as its chief tool in pushing legislation it can't get passed through popular means.

00:06:58.000 The reality is the left was pushing same-sex marriage, for example, for years and years, and they weren't getting any place with regard to federal legislation.

00:07:05.000 So they went to the courts, and the courts gave them what they wanted, and the same thing was true on abortion.

00:07:09.000 Well, because you rely on the courts, when the courts flip to the other side, there's now a lot of power in the hands of the right.

00:07:16.000 I'll talk about what that means and what the courts should be doing in just one second.

00:07:20.000 First, I want to point out that, you know,

00:07:23.000 Some of us have been dreaming of being on the Supreme Court our entire lives.

00:07:26.000 So, Mr. President, if you're listening to this, I would just remind you that when 12-year-old Ben Shapiro was playing at the Israeli Bonds Banquet in 1996, Larry King talked specifically about the dreams of that young man.

00:07:38.000 Shapiro is 12 years old.

00:07:40.000 He'll be accompanied by his father, David.

00:07:43.000 He began training on the violin at age five.

00:07:46.000 In addition to the violin, he plays chess, loves baseball, completes in track and field.

00:07:51.000 His goal is to become the first Orthodox rabbi to sit on the Supreme Court.

00:07:57.000 Meeting of court.

00:07:59.000 Court will have to close at three o'clock on Friday.

00:08:02.000 So I'm not saying that it's something that I would take.

00:08:06.000 I'm not saying it's a job that if it were offered to me, I would take.

00:08:08.000 I'm not saying that both Ann Coulter and David Limbaugh said in 2005, when I was still at Harvard Law School, I should be on the Supreme Court.

00:08:14.000 I'm not saying that I'm 34 years old and I'd be on the Supreme Court for the next 60 years, Mr. President.

00:08:18.000 But if you chose to make that pick, would I turn it down?

00:08:21.000 I don't know.

00:08:22.000 I don't know.

00:08:23.000 I mean, it's not like I'm, I don't know.

00:08:25.000 I'm not that enthusiastic about it.

00:08:27.000 But OK, in any case, in any case, Mitch McConnell says that the vote is going to come this fall, that this fall there will be a vote on President Trump's replacement justice.

00:08:37.000 And you can you can just see the glee on Mitch, on cocaine Mitch's face.

00:08:40.000 So Mitch McConnell snorted a full line and then he went into Capitol Hill.

00:08:44.000 And this is what Mitch McConnell sounds like when he's very, very excited about something.

00:08:48.000 The Senate stands ready to fulfill its constitutional role by offering advice and consent on President Trump's nominee to fill this vacancy.

00:09:00.000 We will vote to confirm Justice Kennedy's successor this fall.

00:09:06.000 OK, that is amped up Mitch McConnell right there.

00:09:08.000 That is Mitch McConnell on an 11 on a skeleton.

00:09:11.000 He's got that spinal tap.

00:09:12.000 He's got that spinal tap volume turned all the way to the top.

00:09:15.000 And look, Mitch McConnell deserves a lot of credit for this because it was Mitch McConnell who said, I am not going to move forward on the nomination of Merrick Garland.

00:09:22.000 And he stood strong in the face of a lot of press attacks.

00:09:24.000 And it's Mitch McConnell who is largely responsible for the fact that there will be two picks for the president of the United States.

00:09:30.000 President Trump says he's going to pick from the current list, which makes a lot of sense.

00:09:33.000 He has a list of 25 possibilities.

00:09:35.000 There are top five that I'm going to explain in just a few minutes here.

00:09:38.000 I'm going to go through the people who are being looked at with the most scrutiny, according to Fred Barnes over at the Weekly Standard.

00:09:42.000 We'll talk about how a justice should be selected.

00:09:45.000 But here is President Trump saying that he's going to pick from the current list.

00:09:47.000 Unfortunately, there are those of us who are not on the list, but President Trump says that he will pick from the list that he's got already.

00:09:54.000 To replace him, sir.

00:09:55.000 Thank you.

00:09:55.000 Thanks, everyone.

00:09:56.000 Well, we have, obviously, numerous people.

00:09:59.000 We have a list of 25 people that I actually had during my election.

00:10:03.000 I had to 20, and as you know, I added five a little while ago.

00:10:08.000 And President Trump also said last night, he had a big rally last night, and he said that he was honored that Kennedy chose to step down on his watch.

00:10:15.000 I'm very honored that he chose to do it during my term in office because he felt confident in me to make the right choice and carry on his great legacy.

00:10:27.000 That's why he did it.

00:10:29.000 One of the things that's amazing about President Trump, you really have to admire, the man has the devil's luck.

00:10:34.000 I mean, there's just no question that he has incredible luck.

00:10:36.000 Now, that doesn't mean he doesn't have skill.

00:10:37.000 I mean, the president is very skilled at a good many things.

00:10:41.000 But he's also damned lucky.

00:10:43.000 I mean, the fact is that George W. Bush, in his entire eight-year term in office, got to replace two justices.

00:10:48.000 President Obama, in his entire eight-year term in office, got to replace two justices.

00:10:51.000 Neither of them swing justices.

00:10:53.000 President Trump gets to replace two justices in the first year and a half of his term.

00:10:57.000 That's an amazing, amazing thing.

00:10:59.000 And one of those is Justice Kennedy, who is a swing justice.

00:11:01.000 President Trump was lucky enough to have Jeb Bush to beat up on in the primaries and then get $2 billion of free media coverage.

00:11:06.000 He was lucky enough to run against the worst candidate in American history, who was under full FBI investigation.

00:11:10.000 And a week before the election, it was revealed that she was under renewed FBI investigation.

00:11:14.000 President Trump was lucky enough to be there when Kim Jong-un accidentally blew up his own nuclear mountain. 0.56

00:11:19.000 And now he is lucky enough to be there.

00:11:21.000 When Justice Anthony Kennedy steps down.

00:11:23.000 So, you know, Lefty Gomez, famous New York Yankees pitcher, once said, it's better to be lucky than good.

00:11:27.000 It's better to be both lucky and good.

00:11:29.000 President Trump is definitely lucky, and he certainly has the opportunity to be quite good here.

00:11:33.000 Now, how should justices be selected?

00:11:36.000 How should we determine which justices should be selected?

00:11:38.000 Because the fact is, Republicans have blown opportunity after opportunity on the Supreme Court.

00:11:43.000 I may be the only conservative in America who came out against the nomination of Judge Roberts for Chief Justice Roberts.

00:11:49.000 Way back when, way back in 2005, when Bush nominated Roberts, I opposed Roberts because I said the man did not have a long track record of textualism and originalism, and he wasn't on record supporting strong textualist positions.

00:12:02.000 When it came to controversial cases, and anybody who is not openly conservative, and I don't mean conservative in the sense that they're politically conservative, anybody who is not textualist or originalist, which I'll explain in just a second, those people tend to move to the center relatively quickly.

00:12:15.000 And I'll explain why that matters in just a second.

00:12:17.000 First, I want to talk a little bit about zip recruiters.

00:12:20.000 So your business needs to get better, right?

00:12:22.000 You need to recruit a new justice to the Supreme Court.

00:12:24.000 So where do you look?

00:12:25.000 Well, you could rely on your friends, you could rely on people that you know to recommend somebody for a job, or you could actually canvas the entire country for the best candidates.

00:12:33.000 And that's why you need ZipRecruiter. 0.72

00:12:34.000 ZipRecruiter learns what you are looking for, identifies people with the right experience, and then invites them to apply to your job.

00:12:40.000 80% of employers who post a job on ZipRecruiter get a quality candidate through the site in just one day.

00:12:45.000 And ZipRecruiter doesn't stop there. 0.80

00:12:47.000 They even spotlight the strongest applications you receive, so you never actually miss a great match.

00:12:51.000 The right candidates are out there, and ZipRecruiter is how you find them.

00:12:53.000 Businesses of all sizes trust ZipRecruiter for their hiring needs.

00:12:56.000 That's why we use ZipRecruiter here at The Daily Wire.

00:12:58.000 Right now, my listeners can try ZipRecruiter for free.

00:13:01.000 So go to ZipRecruiter.com slash Daily Wire.

00:13:04.000 That's ZipRecruiter.com slash Daily Wire.

00:13:05.000 You can try it out for free.

00:13:07.000 ZipRecruiter.com slash Daily Wire.

00:13:09.000 Again, there's a reason that we use it here at the office, and there's no reason

00:13:12.000 For you to waste a lot of time sifting through a bunch of bad resumes when you could have ZipRecruiter basically do it for you.

00:13:17.000 ZipRecruiter knew there was a smarter way. 1.00

00:13:19.000 They built a platform that finds the right job candidates for you.

00:13:22.000 Go check them out right now.

00:13:23.000 ZipRecruiter.com slash DailyWire.

00:13:25.000 They are the smartest way to hire.

00:13:26.000 Again, ZipRecruiter.com.

00:13:27.000 And when you use that slash DailyWire, you can try ZipRecruiter for free.

00:13:30.000 Okay, so when it comes to selection of justices, here's what you need.

00:13:33.000 You need an

00:13:34.000 Open and obvious commitment to originalism and textualism.

00:13:38.000 Originalism and textualism are the basic notion that when you read a text, when you read the Constitution of the United States, you're not reading poetry.

00:13:45.000 It is not a living document where you get to reinterpret the provisions as you see fit that day.

00:13:50.000 That's not what the Constitution was for.

00:13:52.000 And you wouldn't interpret any other piece of legislation that way.

00:13:55.000 You wouldn't take the Sherman Antitrust Act of 1907 and take that piece of legislation and then say, you know what?

00:14:01.000 I think the Sherman Antitrust Act means that gay marriage is now legal, because the document evolves.

00:14:06.000 That's not how documents work.

00:14:07.000 The whole point of writing something down in a document, the whole point of legislation, is that it is a piece of law promulgated at a particular time, with a particular meaning, in a particular place.

00:14:16.000 And if you want to change that meaning, then you can always pass another piece of legislation.

00:14:19.000 You can have a constitutional amendment, for example.

00:14:22.000 This is why the Constitution has so many amendments, because it needed to be changed in many ways.

00:14:28.000 The fact is that the Constitution of the United States does not explicitly prohibit, for example, women from voting.

00:14:32.000 But the Supreme Court didn't just go back and reinterpret the Constitution and say, the Constitution now means women can vote. 1.00

00:14:39.000 There was a constitutional amendment that had to be passed in order so that women could vote because that's how legislation works. 1.00

00:14:44.000 The way legislation works is that it is the legislature that should be doing the legislating.

00:14:48.000 It is the job of judges to look at the text, see what it means, not what they wish it meant, not what they hope it meant, not what they would like it to mean, but what it actually meant at the time that it was written.

00:14:56.000 And then they implement that text.

00:14:58.000 And again, if you want to change that text, well, that's why you have a legislature.

00:15:01.000 That's why you have an elected branch of government.

00:15:03.000 The left doesn't believe in this.

00:15:04.000 The left believes that reading a text as it is meant to be read is instead an exercise in conservatism.

00:15:11.000 It's an exercise in judicial activism to read the Constitution as it was written.

00:15:15.000 Now, if that sounds backwards to you, it's because it is.

00:15:17.000 It's stupid.

00:15:17.000 It's the idea there should be an oligarchy that rules us from above and gets to determine what everything means in their own heads.

00:15:23.000 So the latest example of that?

00:15:25.000 I mean, the Obergefell decision that Kennedy decided is a great case of this, where Kennedy looked at the 14th Amendment to the Constitution, which was about preventing discrimination against black people, and said the 14th Amendment to the Constitution mandates that a man can marry a man all across the country.

00:15:39.000 Now, maybe you believe that a man should be able to marry a man. 0.98

00:15:41.000 That's your prerogative.

00:15:42.000 Vote for a legislature that says it's fine.

00:15:44.000 That's fine.

00:15:44.000 But the idea that a judge is going to determine that from a document that was written in 1789

00:15:51.000 And a Bill of Rights that was promulgated in 1791, and you're going to take that document and reinterpret it to mean whatever you think it ought to mean, that is a fundamental breach of judicial duty.

00:16:02.000 And that's why when we look at the judges, what we should be looking at is who is going to implement the Constitution as written.

00:16:06.000 That's their job.

00:16:07.000 Okay, so how does this play out?

00:16:09.000 Well, let's talk about some of the potential nominees that President Trump is considering.

00:16:29.000 So all of these folks are relatively young.

00:16:32.000 You figure that all of them will spend probably 30 years on the court barring serious health problems.

00:16:36.000 This is why the idea that Trump gets to shape the court for a full generation here is exactly right.

00:16:58.000 All of that assumes, of course, that Chief Justice Roberts isn't going to become a Kennedy-like swing vote, which I think is a dubious assumption, but it's possible that you may actually have a conservative majority on the Supreme Court for the first time in legitimately generations.

00:17:10.000 So here is what we know about the people who are being discussed.

00:17:14.000 Brett Kavanaugh is apparently the frontrunner.

00:17:15.000 He is also the person who is the most icy.

00:17:17.000 Okay, so I do not think the president should select Brett Kavanaugh of the D.C.

00:17:21.000 Circuit Court of Appeals.

00:17:22.000 He's a former clerk for Justice Kennedy.

00:17:24.000 He was elevated to the federal bench in 2006 after a three-year delay.

00:17:27.000 The reason his nomination was delayed was because Democrats were upset over the fact that Kavanaugh used to work for Ken Starr in the office of the Solicitor General, and he had the temerity to say that the Clinton administration targeted Ken Starr.

00:17:37.000 So Kavanaugh has been on the court for quite a while.

00:17:39.000 He has a long record.

00:17:40.000 He's authored about 300 decisions.

00:17:42.000 He recently dissented when the circuit decided that a 17-year-old illegal immigrant detainee had a right to an abortion.

00:17:47.000 He said that the decision was, quote, based on a constitutional principle as novel as it is wrong.

00:17:51.000 He held in 2011 that the Washington, D.C.

00:17:54.000 ban on semi-automatic rifles and its gun registration requirement were unconstitutional under the Supreme Court Teller decision, which recognized that the Second Amendment to the Constitution was an individual right.

00:18:04.000 All of these are good decisions.

00:18:05.000 He also held that the Consumer Financial Protection Bureau structure was unconstitutional, which of course is true as well, and holds administrative decision-making to a minimum.

00:18:15.000 Here's where it starts to get a little bit dicey.

00:18:17.000 Kavanaugh, like Chief Justice Roberts, is known for working across the aisle.

00:18:21.000 He is, on the downside apparently, a general believer in Chevron deference.

00:18:24.000 Chevron deference is the idea that you have these administrative courts, these administrative law courts, that get to decide your fate, and you can't appeal that directly to the judiciary.

00:18:32.000 So, administrative law courts exist in the executive branch.

00:18:34.000 There's a whole branch of thought that says Chevron deference is stupid.

00:18:37.000 That if something is decided by, for example, the EPA, that is reviewable by a judge because the EPA is not a judicial system, the EPA is a regulatory system.

00:18:45.000 Kavanaugh reportedly does not use textualist methods nearly as much as conservatives might wish, and worse,

00:18:50.000 He upheld Obamacare in Sissel v. Department of Health and Human Services, as well as 7th Sky v. Holder, in which he may have actually crafted the rationale that Chief Justice Roberts eventually used in calling the Obamacare penalties a tax.

00:19:02.000 Remember that Chief Justice Roberts rewrote Obamacare to make it constitutional, suggesting that it was a tax rather than a penalty, and it appears that Kavanaugh may have actually created that rationale.

00:19:15.000 I'm not saying that Kavanaugh would certainly be another Chief Justice Roberts, but I think it's more likely he would be another Roberts than another Gorsuch.

00:19:21.000 Hey, now, Amul Thapar, he's relatively new to the appellate courts.

00:19:25.000 He voted to uphold Ohio's method of legal injection, lethal injection, and in Michigan, government's meetings opening with a Christian prayer.

00:19:32.000 He said that's legal as well.

00:19:33.000 He's ruled that monetary donations are a form of protected speech under the First Amendment.

00:19:36.000 Now, because Thapar's record is relatively thin on the Court of Appeals, he's only appointed in the last year and a half, there's not much to go on with regard to issues like abortion and religious freedom.

00:19:44.000 With that said, Professor Brian Fitzpatrick of Vanderbilt Law School described Thapar as very Scalia-like and very Thomas-like.

00:19:50.000 And Thapar has criticized Richard Posner's pragmatism.

00:19:52.000 Posner is on the Seventh Circuit Court of Appeals and is a terrible judge.

00:19:56.000 He criticized Posner's pragmatism in judicial theory because using pragmatism rather than text would, quote, elevate judges to the position of co-legislator.

00:20:04.000 Which is exactly right.

00:20:05.000 Judges should not be legislating, they should be interpreting the law as it is written.

00:20:08.000 He is a textualist who has praised Scalia himself.

00:20:11.000 So, if I have to choose between Thapar and Kavanaugh, I choose Thapar.

00:20:15.000 The best of the bunch, it seems to me, is Amy Barrett. 0.89

00:20:17.000 So, Amy Barrett... 0.69

00:20:18.000 is on the Seventh Circuit Court of Appeals.

00:20:20.000 She was a cause celeb, you recall, when Democrats began suggesting that her Catholicism was a bar to her ability to be an objective judge.

00:20:26.000 And she was supposedly so Catholic that she was going to use her Catholicism to rule in particular cases. 0.97

00:20:31.000 She says that life begins at conception.

00:20:33.000 She signed a letter from the Beckett Fund criticizing Obamacare's requirement that employers provide contraceptive coverage, calling it a, quote, grave violation of religious freedom.

00:20:41.000 Barrett has written in depth on Justice Scalia's originalism.

00:20:44.000 She's evidence support for textualism as well.

00:20:46.000 She clerked for Scalia.

00:20:47.000 So Amy Barrett would just be first rate. 0.68

00:20:49.000 She's the youngest of the bunch.

00:20:50.000 She's a woman. 0.82

00:20:51.000 And it would drive Democrats up a wall because she's Catholic as well.

00:20:54.000 So I think Amy Barrett is my number one choice.

00:20:57.000 Now, in just a second, I want to get to the last two possibilities for the Supreme Court, according to Fred Barnes.

00:21:02.000 These are the top five that we are going through right here.

00:21:05.000 First, I want to talk a little bit about Dollar Shave Club.

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00:22:20.000 Okay, so we have been going through

00:22:22.000 The five judges that President Trump is looking at for the Supreme Court, according to Fred Barnes.

00:22:27.000 I'm hearing the same thing from from the folks that I know in the White House, that these are the judges who are being considered.

00:22:32.000 So we've already gone through.

00:22:34.000 We've already gone through Brett Kavanaugh, of whom I'm deeply skeptical.

00:22:37.000 Amul Fopar, who sounds good, but his record's a little bit thin.

00:22:40.000 Amy Barrett, who is a who I think is a deep textualist, a deep originalist and would be a very, very solid pick.

00:22:47.000 Now we get to Thomas Hardiman.

00:22:48.000 So Thomas Hardiman, you recall, was one of the last two.

00:22:50.000 It was down to Hardiman and Gorsuch for the last seat.

00:22:52.000 I opposed Hardiman.

00:22:53.000 I supported Gorsuch.

00:22:54.000 Good for me.

00:22:55.000 OK, that was right.

00:22:56.000 Gorsuch has turned out to be a tremendous justice.

00:22:58.000 I'm very skeptical of Thomas Hardiman.

00:22:59.000 Leonard Leo, who's one of Trump's chief advisors, has described Hardiman as very much in the mold of Justice Scalia, well-schooled on the doctrines of originalism and textualism.

00:23:07.000 But Hardiman has never spoken openly about originalism and textualism, never heard his judicial philosophy.

00:23:13.000 So I need to hear his judicial philosophy.

00:23:15.000 Now, in some cases, he's done great.

00:23:16.000 He stood against a New Jersey law that required showing a justifiable need to allow carrying a handgun publicly.

00:23:20.000 He said that violated the Second Amendment.

00:23:23.000 In another Second Amendment case, he specifically stated that the threshold question in a Second Amendment challenge is one of scope, adding that the inquiry, quote, reflects an inquiry into text and history.

00:23:32.000 So that sounds originalist, but it's still a little bit thin.

00:23:35.000 Here's where we get dicey.

00:23:36.000 He also ruled that a plaintiff could sue for sex discrimination on the grounds that he was a male treated badly for being effeminate, thus broadening the class of claims under Title VII of the Civil Rights Act.

00:23:45.000 So Title VII of the Civil Rights Act says you can't discriminate against someone on the basis of sex.

00:23:49.000 He broadened that to include you can't discriminate against someone on the basis of their perceived effeminacy, which is not the same thing at all.

00:23:58.000 The whole point of Title VII is that men can't discriminate against women in employment.

00:24:02.000 That was the point of Title VII.

00:24:03.000 It's not that you can't discriminate.

00:24:05.000 It may be bad, but Title VII doesn't say anything about you made fun of a guy's shirt because you thought that it was pink or something.

00:24:10.000 There's nothing in Title VII about that.

00:24:12.000 That kind of logic is not textualist or originalist.

00:24:13.000 If you look at

00:24:29.000 If you look at disparity, and you immediately jump to, it must be discrimination, then I've got a problem with your legal reasoning.

00:24:35.000 He also ruled in favor of an illegal immigrant seeking asylum on the grounds that he was targeted by MS-13.

00:24:39.000 There was an illegal immigrant who said that he wanted asylum in the United States, and he was refused asylum.

00:24:43.000 He said he was being targeted by MS-13 in Honduras, and he was refused asylum because they said, well, the government's supposed to protect you down there.

00:24:51.000 Anybody targeted by MS-13 doesn't just get to claim asylum in the United States.

00:24:54.000 And Hardiman overruled that.

00:24:56.000 He said that this guy got to claim asylum.

00:24:58.000 Hardeman is also good friends with President Trump's sister, who sits on the, I believe, the Third Circuit Court of Appeals.

00:25:07.000 And they are good friends.

00:25:08.000 I'm skeptical of Hardeman.

00:25:09.000 I don't think that Hardeman would be a strong pick.

00:25:11.000 So two out of the four, I think would be great picks.

00:25:13.000 Two would not be particularly strong.

00:25:15.000 Then we get to Raymond Kethledge.

00:25:16.000 So Raymond Kethledge, like Kavanaugh,

00:25:18.000 He's a former Kennedy clerk.

00:25:19.000 Unlike Kavanaugh, he's actually expressed his judicial philosophy.

00:25:22.000 So in his original confirmation testimony, he said, He also said before the Federalist Society, the quote,

00:25:39.000 Okay, that's sort of definitional originalism.

00:25:40.000 We don't have a lot in terms of his, in terms of his particular decision-making.

00:25:42.000 We do know that in 2016, Keflage slammed the IRS for failing to turn over materials necessary for determining whether they discriminated against conservative groups.

00:25:47.000 As far as abortion,

00:26:06.000 We don't have much on Keflige.

00:26:07.000 Keflige was the Judiciary Committee counsel for Spencer Abraham when he was a senator, when Abraham was pushing for a federal abortion ban.

00:26:13.000 So, here is the bottom line.

00:26:14.000 The most outspokenly textualist judges on this list are Barrett and Thapar.

00:26:17.000 Barrett by a long shot.

00:26:18.000 Kavanaugh has the most red flags.

00:26:20.000 Hardiman has red flags too.

00:26:21.000 We don't know enough about Keflige at this point from his rulings, but his talk of judicial philosophy is promising.

00:26:26.000 Here is the problem.

00:26:28.000 Since Justice, since Judge Bork was nominated in the 1980s and and Ted Kennedy, the worst of all Kennedys, came forward and started bashing the hell out of Judge Bork and coined the term Borking him.

00:26:40.000 He just went after him and destroyed him on the public stage.

00:26:44.000 Since then, there's been a tendency by Republican presidents to nominate people who are stealth candidates, to nominate people who do not have a long, historic record of originalism and textualism.

00:26:54.000 And you're not even allowed to ask people tough questions.

00:26:55.000 You're not allowed to ask them whether you think that Roe was wrongly decided.

00:26:58.000 You see this in judicial hearings all the time, in Supreme Court judicial hearings.

00:27:01.000 Somebody will say, well, was Roe wrongly decided?

00:27:03.000 And the left uses it as a litmus test.

00:27:05.000 If you say Roe was wrongly decided, they won't vote for you.

00:27:07.000 Well, the right should have a litmus test, too.

00:27:09.000 Of course, Roe versus Wade was wrongly decided.

00:27:11.000 It's a garbage case.

00:27:13.000 It is one of the worst recent cases in the history of the United States and it inculcates a moral standard that is simply not based in the Constitution.

00:27:20.000 There's nothing in the Constitution that grants a right to kill your baby in the womb.

00:27:23.000 The founders would have been appalled at such a notion.

00:27:26.000 Literally nothing is there.

00:27:27.000 They said there's an emanation from a penumbra that ends up... What does that even mean?

00:27:31.000 Basically what that means is there are a bunch of justices on the Supreme Court who decided they felt like legalizing abortion that day so they went ahead and they legalized abortion that day.

00:27:39.000 It seems to me that you should be able to ask judicial nominees who are going to be sitting on the court for the next 30 years what they think of critical cases, that they should be able to give honest answers to those critical cases.

00:27:49.000 But because Democrats have made it such a cause celeb to destroy people over their positions on controversial cases, the easiest way of getting on the court is to be a stealth candidate who's never said anything controversial, and then we never have to ask you about the things you've said that are controversial.

00:28:02.000 Here's my recommendation.

00:28:04.000 There are 51 United States senators who are Republicans.

00:28:07.000 That means that President, and thanks to Harry Reid, which I'll explain in a moment, President Trump does not need 60 votes to get anyone through the Senate.

00:28:15.000 So let's ask every question we've got to ask.

00:28:17.000 Let's vet these candidates all the way down to the ground.

00:28:19.000 We cannot afford to blow this.

00:28:21.000 If we get another Justice Souter, if we get another Sandra Day O'Connor, if we get another Anthony Kennedy,

00:28:26.000 If we get another John Paul Stevens, this will have been a massively blown opportunity.

00:28:29.000 A massively blown opportunity.

00:28:31.000 A historically blown opportunity that will not come around again because there's this sort of ghoulish death watch that happens on the Supreme Court where we sit around waiting for somebody of the other party to die.

00:28:39.000 But the Supreme Court needs to be hemmed back into its constitutional role.

00:28:44.000 And it's constitutional role is not to implement stuff that I like or stuff that you like.

00:28:48.000 It's constitutional role is to read the Constitution and apply the words of the Constitution clearly.

00:28:53.000 This is why, for example, if I were going to go off the board here, but still on President Trump's list, I would be going for Senator Mike Lee.

00:28:59.000 I think Senator Mike Lee would be the best pick of anybody that's been brought up.

00:29:01.000 We know where he stands politically.

00:29:03.000 We know where he stands constitutionally.

00:29:05.000 I know where he stands constitutionally because I've discussed the Constitution with Senator Lee.

00:29:08.000 Senator Lee is a deep textualist, a deep originalist, and you know that he would vote to constrain the federal government's powers when it violates the Constitution of the United States.

00:29:17.000 And he would also not use his own political preferences as the guidepost for determining what the law allows.

00:29:23.000 So I like the idea of Senator Mike Lee.

00:29:25.000 I know people are saying, well, then you won't have that vote in the Senate.

00:29:27.000 Are you kidding?

00:29:28.000 Utah?

00:29:29.000 Yeah, right.

00:29:29.000 Utah is going to appoint a Democrat senator to fill Mike Lee's spot.

00:29:32.000 No chance.

00:29:33.000 So if you want to guarantee that this is a pick that goes through and a pick that votes the way that justices should all be voting, then it should be Mike Lee.

00:29:41.000 Mike Lee would be the best pick.

00:29:42.000 Of the people on the list, Amy Barrett would be the best pick as far as I am concerned.

00:29:46.000 Now in just a second, we're going to talk about the wailing and gnashing of teeth from the left.

00:29:49.000 I have this right here, this leftist tears tumbler, and it has been refilling non-stop.

00:29:53.000 This is the first time in 24 hours that it's not spilling over onto the desk.

00:29:56.000 I've literally just left it here, and it's just overflowed.

00:29:59.000 And we had to have a plumber come in and everything, and they couldn't stop it.

00:30:02.000 The magical leftist tears were just flowing into it.

00:30:04.000 I had to drink them hot.

00:30:05.000 There was no time to let them cool.

00:30:06.000 That's how amazing it was.

00:30:09.000 If you want to hear all of that, all you have to do is go over to dailywire.com right now and subscribe.

00:30:12.000 $9.99 a month gets you a subscription to dailywire.com.

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00:31:00.000 So the best part of all of this is how we got here.

00:31:02.000 So the way that we got here is that Democrats in 2013 decided they were tired of Republicans filibustering judicial nominees.

00:31:08.000 Now the process of filibustering judicial nominees did not start with Republicans.

00:31:11.000 It started under George W. Bush.

00:31:13.000 It started with Democrats trying to filibuster people like Miguel Estrada, who was nominated to the D.C. 0.70

00:31:17.000 Circuit Court of Appeals.

00:31:18.000 And when it came time for Barack Obama to stack the courts, Republicans, who had enough votes in the Senate to stop him, filibustered.

00:31:24.000 So Harry Reid went forward and he said, you know what?

00:31:27.000 We need to get rid of the judicial filibuster. 0.56

00:31:29.000 There will be no more filibuster.

00:31:30.000 He used what's called the nuclear option.

00:31:32.000 He went to the Senate parliamentarian and got a ruling that suggested that there would be no need for 60 votes to shut down a filibuster.

00:31:39.000 Instead, he just got a 51 vote vote.

00:31:42.000 Let him do it!

00:31:42.000 Why in the world would we care?

00:31:43.000 We were trying to protect everybody.

00:31:44.000 I mean, do they want a simple majority?

00:31:46.000 Fine!

00:32:08.000 I mean, all these threats about we're going to change the rules more.

00:32:11.000 As Senator Schumer said, what is the choice?

00:32:14.000 Continue like we are or have democracy?

00:32:17.000 OK, so he said, let him do it.

00:32:19.000 If the Republicans ever get in charge, let him do it.

00:32:24.000 Oh, yes, indeed.

00:32:26.000 Let them do it.

00:32:27.000 And Mitch McConnell, cocaine Mitch, right, cocaine Mitch, he said at the time, looking exactly the same, he said at the time, you're going to regret this a lot sooner than you think.

00:32:37.000 He looks a little more peaked now because he's done a lot more coke.

00:32:39.000 But here is Mitch McConnell saying, Harry Reid, you are going to regret this.

00:32:43.000 And Orrin Hatch sitting in the background looking just as alive then as he is now.

00:32:46.000 Here is Mitch McConnell.

00:32:48.000 If you want to play games, set yet another precedent that you will no doubt come to regret.

00:32:55.000 Say to my friends on the other side of the aisle, you'll regret this, and you may regret it a lot sooner than you think.

00:33:00.000 Boom! 0.99

00:33:01.000 Mitch McConnell, prophet!

00:33:02.000 You may regret this a lot sooner than you think.

00:33:04.000 Indeed, indeed.

00:33:05.000 Harry Reid tweeted this out.

00:33:06.000 Harry Reid owned the libs yesterday.

00:33:08.000 So Harry Reid tweeted out, Thanks to all of you who encouraged me to consider filibuster reform.

00:33:12.000 It had to be done.

00:33:13.000 Harry Reid owning the libs circa 2013.

00:33:16.000 Just, just wonderful.

00:33:18.000 Just wonderful.

00:33:18.000 Here's an entire montage of leftists at the time suggesting how much they love the idea of nuking the filibusters.

00:33:24.000 This is 23.

00:33:25.000 Democrats and this president are going to war with their enemies finally.

00:33:29.000 This is a move Democrats had to make.

00:33:30.000 Republicans put them in a position where basically Republicans were saying we are not going to honor the power of the president.

00:33:35.000 All this really does is say that the president that we elected to actually run the government gets to run the government.

00:33:42.000 Once the majority is blocked all the time on relatively ordinary things, it's not going to tolerate the protection of the minority.

00:33:49.000 Ted Cruz is sort of exhibit A for why the Democrats and why Harry Reid did what they had to do.

00:33:57.000 What we had in the Senate, which likes to call itself the world's greatest deliberative body, we had paralysis instead.

00:34:03.000 I think the escalated use of the filibuster has more or less made it obsolete.

00:34:06.000 On the other hand, the actual history of how the filibuster is used is mostly nasty, ugly, and racist.

00:34:13.000 I love it so much.

00:34:14.000 They couldn't stand it.

00:34:15.000 The filibuster was the worst thing that ever happened.

00:34:17.000 It had to be stopped.

00:34:19.000 It just had to be stopped.

00:34:20.000 Because it was so bad.

00:34:21.000 It was so bad.

00:34:22.000 And then, they stopped it.

00:34:23.000 And guess what?

00:34:28.000 Ah yes, I can feel the weight of this right here.

00:34:30.000 It grows in my hand, the weight, because the tears are filling up.

00:34:34.000 It was here, and just in the last five minutes, it's gone all the way up to here.

00:34:38.000 Soon it will overflow.

00:34:39.000 President Obama at the time said, we need to eliminate the routine use of the filibuster for judicial nominees, because come on guys, we have to stop this.

00:34:46.000 We need, we, it can't, it can't go on.

00:34:47.000 It can't go on.

00:34:48.000 Probably the one thing that we could change without a constitutional amendment that would make a difference here would be the elimination of the routine use of the filibuster in the Senate. 0.98

00:35:03.000 Excuse me for saying a little bit of schadenfreude here, but yes, you all deserve this.

00:35:07.000 You had it coming.

00:35:08.000 But the richest schadenfreude came courtesy of people wailing yesterday.

00:35:12.000 Now listen, I understand why people are upset.

00:35:14.000 The fact is that when you believe that an institution is dedicated to the promulgation of your political ideology, and then that institution might be hemmed back into its constitutional boundaries, where it won't just declare that gay marriage is the law of the land based on nothing, or it won't just declare that abortion is the law of the land based on nothing.

00:35:31.000 When all of that happens, then I understand why you'd be upset, but that's because you were stupid about what you think the Supreme Court should have been doing to begin with.

00:35:38.000 This was not the job of the Supreme Court.

00:35:40.000 But DNC members, who thought that they were, like, basically, Anthony Kennedy was the last bastion of hope.

00:35:45.000 So, this audio broke yesterday of DNC members legitimately wailing after Kennedy announced his retirement, and it is just delicious.

00:35:53.000 All the more reason.

00:35:56.000 Yeah.

00:35:57.000 Not that he's done us any good on these recent decisions, but he was the one occasionally persuadable.

00:36:19.000 Oh, no!

00:36:21.000 Oh, yes.

00:36:22.000 Okay, so, people were going crazy yesterday.

00:36:25.000 Tommy Veeder got out of his van and decided, from Pod Save America, folks, he decided to tweet, F U U U U U U U U C K.

00:36:34.000 To which I tweeted back to him, Tommy, get back in the truck.

00:36:37.000 So Tommy Veeder really doing yeoman's work there.

00:36:42.000 It is funny to watch as Tommy Veeder's boss's legacy is peed on like a mattress in Moscow by a Russian prostitute. 0.98

00:36:47.000 It's pretty astonishing.

00:36:49.000 And then the best tweet yesterday was definitely from some rando named Matty K, who tweeted out, literally in tears, haven't felt this hopeless in a long time.

00:36:57.000 With Justice Kennedy leaving, we now have two options as Americans.

00:36:59.000 Get fitted for your Nazi uniform or report directly to your death camp. 0.72

00:37:03.000 How do you fight the darkness without light?

00:37:05.000 My spark is going out.

00:37:06.000 Hashtag SCOTUS.

00:37:08.000 Yeah, yeah, that's probably, that's probably what's gonna happen here, is that the constitutional boundaries will be restored, and then we'll make you into a Nazi and put you in a death camp. 0.86

00:37:17.000 That's not an exaggeration at all, guys.

00:37:19.000 Now listen, there are some of us who've been prone to exaggeration about Supreme Court decisions in the past.

00:37:23.000 I think my reaction to the Obamacare decision, well, I think I was right about the general reaction, was probably overstated on Twitter, but at least I wasn't saying that we were living in a Nazi death camp, so there's that.

00:37:33.000 In any case, the level of leftist ire is insane, and the proposed solutions to stopping this are just as wonderfully delicious.

00:37:41.000 So let's get into how the left has decided that they are going to hold up the nomination of Kennedy's replacement.

00:37:46.000 So Chuck Schumer, the Senate Minority Leader, he says that he's begging Republicans now that they should follow their rule.

00:37:52.000 What exactly does he think was their rule?

00:37:53.000 He thinks that Mitch McConnell said that we shouldn't vote on a judicial nominee in an election year.

00:37:58.000 Well, no.

00:37:58.000 What Mitch McConnell said is you shouldn't vote on a judicial nominee in a presidential election year.

00:38:01.000 Now, I thought that rule was stupid from the beginning.

00:38:03.000 I don't think you should vote on a judicial nominee that you don't like if you don't have to.

00:38:07.000 Because why would you?

00:38:08.000 Why would you vote to confirm a bad justice just because that's the way things are supposed to go?

00:38:12.000 That's not the way things are supposed to go.

00:38:14.000 This is why the Senate advises and consents.

00:38:16.000 They are not mandated to give their consent.

00:38:18.000 But Chuck Schumer says, no, no, no.

00:38:19.000 I'm going to pretend that what Mitch McConnell actually said is that we can't vote on a justice in any election year at all, midterm,

00:38:26.000 General, we can't, we can't, none!

00:38:28.000 There will never be another vote on a judicial nominee.

00:38:32.000 Now, somebody remind me, when was Elena Kagan confirmed?

00:38:33.000 Oh right, that was in 2010, in a midterm election year.

00:38:36.000 Here's Chuck Schumer begging Republicans not to clock him with the tool he gave them back in 2013, along with Harry Reid.

00:38:42.000 Our Republican colleagues in the Senate should follow the rule they set in 2016.

00:38:49.000 Not to consider a Supreme Court Justice in an election year.

00:38:53.000 Okay, so, yeah, that's not gonna happen.

00:38:55.000 So, congratulations to you, Chuck Schumer.

00:38:57.000 You handed the baseball bat to the other side, and now you are just begging not to be clocked with it.

00:39:00.000 Kamala Harris, she is, of course, the leader of the crazy caucus of the Democratic Party, and she says, it's time to play hardball.

00:39:08.000 The only problem is that all they have at this point, as someone observed on Twitter, is a wiffle bat.

00:39:14.000 So, good luck with that.

00:39:15.000 Here's Kamala Harris saying that somehow, using votes they don't have, in a filibuster process they themselves nuked, they're gonna try to work to stop this.

00:39:22.000 Are you guys going to play hardball this time and say, we're not going to let you pass this?

00:39:25.000 You're not going to rush this through us in a few months before election day?

00:39:28.000 Based on every conversation I've had with my colleagues so far this afternoon, everybody's prepared to play hardball.

00:39:34.000 They have no tools.

00:39:35.000 There's no way for them to play hardball.

00:39:36.000 They don't have the votes.

00:39:37.000 It ain't going to happen.

00:39:38.000 So Elizabeth Warren. 0.98

00:39:42.000 She was sending up some serious smoke signals that she was upset about this entire thing. 0.78

00:39:48.000 In fact, it sounds like she really wants to refight the battle of Little Bighorn here.

00:39:53.000 Elizabeth Warren, our Native American senator from Massachusetts, who's not Native American in any way, makes a mockery of Native American background with her claims that she is. 0.99

00:40:00.000 Here she is explaining that Donald Trump is about to destroy the country wholesale.

00:40:04.000 This woman taught at Harvard Law School when I was there. 1.00

00:40:06.000 She was obnoxious then, she's obnoxious now. 1.00

00:40:08.000 Donald Trump has the opportunity to remake the Supreme Court for a generation.

00:40:13.000 A woman's right to decisions over her own body are at risk. 0.77

00:40:17.000 Equal rights, equal marriage is also at risk.

00:40:21.000 This is the fight of our lives.

00:40:23.000 If you want to be in this fight, then now's the time.

00:40:26.000 Raise your voice.

00:40:27.000 Raise your voice.

00:40:28.000 Raise your voice.

00:40:29.000 We do not want an extremist judge on the United States Supreme Court.

00:40:35.000 Raise your voice as much as you want, Cain.

00:40:37.000 You ain't got 51 votes.

00:40:38.000 You ain't got a majority.

00:40:39.000 So listen, eventually this will all be turned around and there will be a time when Democrats are in power again and we'll suffer the same way the Democrats are now.

00:40:45.000 The difference is that Republicans aren't interested in the Supreme Court becoming a tool of their political agenda.

00:40:50.000 Republicans just want the Supreme Court to go back to the original text of the Constitution and read the Constitution like any other law would ever be read, like the Bankruptcy Code would be read.

00:40:59.000 It is Democrats

00:41:00.000 Who have mandated that the Supreme Court is supposed to read the Constitution as a piece of leftist legislation written in 2017.

00:41:07.000 It's absurd.

00:41:09.000 And you can see the media response here is so over-the-top and crazy.

00:41:12.000 Comedy Central, you know, the place for comedy, they tweeted this out.

00:41:18.000 That's literally what they tweeted out.

00:41:20.000 So, well done.

00:41:21.000 There's so much comedy in there.

00:41:23.000 I mean, can't you see the comedy?

00:41:24.000 They're so great at comedy, these people.

00:41:26.000 And I know Trevor Noah also lost his mind.

00:41:28.000 He said, it feels like all hope is dead.

00:41:31.000 Yeah, sure.

00:41:32.000 All hope is dead for comedy on your show.

00:41:34.000 But here's Trevor Noah.

00:41:35.000 I know this news is very painful for a lot of people.

00:41:37.000 It feels like for the next 30 years, America is going to change in a horrible direction.

00:41:41.000 In some ways, it feels like all hope is dead, and nothing can bring it back.

00:41:46.000 Or, alternatively, you could get people elected to office who pass the laws that you like.

00:41:51.000 Alternatively, you could vote.

00:41:52.000 Alternatively, you could stop relying on nine leftists on the Supreme Court to pass your legislative agenda, and you could actually go and have that legislative agenda passed by a bunch of Democrats.

00:42:01.000 Or you could whine about it, really loud, and cry and whine.

00:42:04.000 You could have Chris Matthews go out there and say, it's time for Democrats to play hardball.

00:42:08.000 Yeah, go, Chris Matthews, get up, come out of the show, come in here all angry.

00:42:11.000 Oh, I'm so angry.

00:42:12.000 Go, Chris Matthews, go!

00:42:14.000 It's time for Democrats to play hardball.

00:42:17.000 I'm Chris Matthews urging them to do just that.

00:42:20.000 It's time to play hardball.

00:42:21.000 It's time for me to stop coming out of the show, and I will finally go and buy a comb, because that's how serious I am about this situation.

00:42:27.000 The reality is the Supreme Court never should have been this important.

00:42:30.000 It is Democrats who made it this important.

00:42:31.000 It is leftists who made it this important.

00:42:32.000 And now they are reaping what they sow and it is well, well deserved.

00:42:36.000 OK, time for some things I like and then time for some things that I hate.

00:42:40.000 So the thing that I like today is a book called The Hollow Hope by Gerald Rosenberg.

00:42:43.000 OK, there are a lot of people who believe that the Supreme Court is the great

00:42:47.000 Hope for their agenda, that the Supreme Court is going to save them.

00:42:51.000 The Supreme Court is going to make the country a better place, that they're going to do justice.

00:42:55.000 There's a very famous story about Justice Oliver Wendell Holmes, that he was deciding a particular case, and he was at a dinner party, and he goes out from his dinner party, and he hops in his carriage, and he's about to ride away, and some guy starts running after him, and the guy starts screaming at him, do justice, Mr. Holmes, do justice!

00:43:13.000 And Holmes looks back at him and he says, it's not my job to do justice, it's my job to enforce the law.

00:43:17.000 Yes, this is correct.

00:43:19.000 Historically speaking, for all the talk about how the Supreme Court has radically changed things, people radically overestimate how much the Supreme Court has changed things.

00:43:25.000 It is my belief that even if same-sex marriage had not been passed on the federal level by the Supreme Court of the United States, that is the direction that the country was moving anyway. 0.76

00:43:32.000 It is my belief that even without Brown v. Board of Education, the country would have moved away from segregation.

00:43:37.000 In fact, Brown v. Board of Education happens in 1955.

00:43:39.000 It takes until 1964 and the Civil Rights Act to forcibly desegregate the South.

00:43:45.000 That's the argument that Gerald Rosenberg makes.

00:43:47.000 Gerald Rosenberg is not a conservative.

00:43:48.000 He's a professor, I believe, at the University of Chicago Law School.

00:43:50.000 And he writes a book called The Hollow Hope, Can Courts Bring About Social Change?

00:43:54.000 And his real answer is no.

00:43:55.000 The courts cannot bring about social change.

00:43:57.000 The best that they can do is sort of lag behind and then rubber stamp the direction they think the country is going anyway.

00:44:02.000 So the left that wants to use the courts as their tool of social change, the answer is if you want social change, go out and make social change.

00:44:08.000 Don't rely on a bunch of non-elected oligarchs who sit there for life to make your agenda happen. 1.00

00:44:14.000 That's not the job of the Supreme Court.

00:44:15.000 It is the job of the Supreme Court to enforce the greatest document ever conceived of by human beings.

00:44:20.000 And that, of course, would be the Constitution of the United States.

00:44:23.000 OK, time for a couple of things that I hate.

00:44:29.000 So Jeffrey Toobin just made an ass of himself on CNN.

00:44:32.000 Not a great shot.

00:44:33.000 So Jeffrey Toobin is a legal analyst and he is going crazy just like everybody else in the media about how the end of the world is nigh.

00:44:41.000 The Democrats have all become that weird guy from the New Yorker cartoons carrying around the placard that says the end is here.

00:44:46.000 So here's Jeffrey Toobin doing his the end is here routine with Justice Kennedy gone.

00:44:50.000 It will be Mad Max beyond Thunderdome.

00:44:53.000 People will be beating each other up.

00:44:55.000 It will be massacres in the streets.

00:44:57.000 Gay people will be running from crowds armed with pitchforks and torches. 0.98

00:45:01.000 Abortions will be unavailable for anyone.

00:45:03.000 I mean, from his mouth to God's ears.

00:45:04.000 Here's what he says about abortion.

00:45:06.000 You are going to see 20 states pass laws banning abortion outright.

00:45:13.000 Just banning abortion. 0.83

00:45:15.000 And because they know that there are now going to be five votes on the Supreme Court to overturn Roe v. Wade.

00:45:21.000 Okay, so let's be straight about this.

00:45:23.000 Roe v. Wade does not mandate that abortion becomes illegal again.

00:45:26.000 Roe v. Wade, if it were overturned, simply kicks the issue back to the states where it was from the beginning.

00:45:30.000 So if you think abortion is going to be illegal in California, if you think abortion is going to be illegal in New York or Massachusetts,

00:45:36.000 Or a wide variety of other lefty states.

00:45:38.000 You're out of your mind.

00:45:40.000 It ain't gonna be illegal.

00:45:41.000 There might be heavier restrictions in places like Alabama and Mississippi and Texas.

00:45:44.000 And those restrictions may conceive of exceptions for life of the mother, for example, which is probably the most common exception.

00:45:51.000 But...

00:45:52.000 For Jeffrey Toobin to suggest that it's going to be this hellscape where if you want an abortion, you can't get one.

00:45:57.000 It's just not true.

00:45:57.000 First of all, I wish it were true.

00:45:58.000 I wish it were true.

00:45:59.000 But how about the left can make its case in public?

00:46:01.000 See, here's the thing.

00:46:02.000 The left doesn't actually like democracy.

00:46:04.000 When the left talks about how much they love democracy and how this is going to impose on our democracy some sort of burden, the reality is they can't get people to vote for their policies, so they want judges to do it for them.

00:46:14.000 And when Jeffrey Toobin whines about this,

00:46:16.000 I don't see why Jeffrey Toobin's value set should govern what people in Texas think.

00:46:19.000 I don't see why my value set should necessarily govern what people in Massachusetts think.

00:46:23.000 I think on the issue of abortion, it's a little bit different because if you consider abortion to be a form of murder, then you actually do require federal legislation on these issues because it is the job of the government to protect life, liberty, and property.

00:46:33.000 And under the 14th Amendment to the Constitution, there's equal protection of the laws, which in my view should be applied to the unborn as well.

00:46:39.000 But with all of that said, there's this weird antipathy toward people voting for issues that Democrats don't want them to vote for.

00:46:47.000 So they're all pro-choice when it comes to abortion, but they're anti-pro-choice when it comes to everything else.

00:46:50.000 They're anti-choice when it comes to religious bakers. 0.99

00:46:52.000 They're anti-choice when it comes to whether you should have to join a union or pay a union.

00:46:56.000 They're anti-choice when it comes to whether you should be able to vote on issues like abortion in general.

00:47:01.000 So they are utterly inconsistent on these issues.

00:47:03.000 So, you know, it's it's it's just it's ridiculous.

00:47:06.000 But this sort of crisis mentality on the left has been exacerbated.

00:47:10.000 I mean, we had we had Maxine Waters talking about violent uprisings, essentially mob justice happening a week ago.

00:47:16.000 Imagine how bad things are going to get now.

00:47:17.000 I mean, I said to somebody in the White House, I hope your Secret Service protection is great, because I do not trust that there aren't going to be an increased number of nuts who are looking to kill somebody based on the level of and tenor of politics in the modern American state.

00:47:29.000 I'm not going to blame that on the media.

00:47:30.000 I'll blame the raised temperature on the media, but I'm not going to blame, you know, assassination attempts on the media, but the temperature is just too high for something not to blow.

00:47:38.000 That's the direction in which this is moving.

00:47:40.000 And now with all of that said, President Trump gave a rally last night, and President Trump's rallies are always basically hour-long comedy routines.

00:47:47.000 I don't think that President Trump is really cooling down the rhetoric at all.

00:47:50.000 And this is what his fans love about him.

00:47:52.000 His biggest fans love the fact that President Trump likes to engage in the same sort of fisticuffs that the left engages in.

00:47:59.000 And I understand the tendency of the id to resonate to this stuff.

00:48:02.000 So I think this is helping the country move forward in any positive way.

00:48:06.000 Probably not.

00:48:06.000 Here is Donald Trump going after Joe Crowley, who was just defeated in a primary by Alexandria Sanchez, Asya Sanchez, I can't remember her name, the socialist 28-year-old who's the new face of the Democratic Party.

00:48:18.000 He goes after Joe Crowley.

00:48:19.000 Here's what he had to say.

00:48:20.000 Last night, we had a great evening because we watched that television and we were winning left and right.

00:48:26.000 They didn't know what the hell happened.

00:48:28.000 And one of my biggest critics, a slovenly man named Joe Crowley, got his ass kicked.

00:48:38.000 This slovenly man named Joe Crowley.

00:48:41.000 I love that he has to stick his boot on the guy.

00:48:43.000 First of all, Crowley was less anti-Trump than the person who replaced him.

00:48:46.000 But, you know, is any of this really going to make the country better?

00:48:49.000 Not really sure.

00:48:50.000 I also do love the blindness of some people to the fact that President Trump is not exactly Captain Civility.

00:48:55.000 So President Trump himself says, can you imagine if I said what Maxine Waters said?

00:48:59.000 Here's what he said at his rally last night.

00:49:00.000 Maxine, she's a beauty. 1.00

00:49:03.000 I mean, she practically

00:49:05.000 Was telling people the other day to assault.

00:49:08.000 Can you imagine if I said the thing she said?

00:49:12.000 We demand that he immediately drop out of the race.

00:49:16.000 Can you imagine seriously if I said that or?

00:49:20.000 Somebody else said that.

00:49:22.000 Horrible, what you said.

00:49:23.000 I can imagine that, because it happened.

00:49:26.000 A lot.

00:49:27.000 So while I enjoy President Trump's comedic timing, I am going to remind people that the President of the United States did say things about punching people with whom you disagree.

00:49:35.000 Knock the crap out of him.

00:49:36.000 I promise you I'll pay your legal fees on June 30th.

00:49:38.000 I'd like to punch him in the face.

00:49:39.000 Maybe he should have been roughed up.

00:49:40.000 Yeah, the President...

00:49:42.000 Is not quite Captain Civility.

00:49:43.000 So before we before we say that all of this is on the Democrats, I think a lot of it is on the Democrats, but I don't think that it is bringing down the temperature in any real way for the president of the United States to use that kind of language.

00:49:54.000 All right.

00:49:54.000 So I'm Ben Shapiro.

00:49:56.000 This is The Ben Shapiro Show.

00:49:57.000 We'll see you here tomorrow.

00:49:58.000 Court is hereby adjourned.

00:50:05.000 The Ben Shapiro Show is produced by Senya Villareal, executive producer Jeremy Boring, senior producer Jonathan Hay.

00:50:11.000 Our supervising producer is Mathis Glover, and our technical producer is Austin Stevens.

00:50:16.000 Edited by Alex Zingaro.

00:50:17.000 Audio is mixed by Mike Carmina.

00:50:19.000 Hair and makeup is by Jesua Alvera.

00:50:21.000 The Ben Shapiro Show is a Daily Wire Ford Publishing production.

00:50:23.000 Copyright Ford Publishing 2018.

The Ben Shapiro Show - June 28, 2018

The Biggest Move In A Generation | Ep. 570

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