Conversation Across the Divide: David French and Erwin Chemerinsky
Articles,  Blog

Conversation Across the Divide: David French and Erwin Chemerinsky


– Thank you all so much for coming. I wanted to thank Mr. David French and Dean Erwin Chemerinsky
for your time today. They are very busy, so we tried very hard
to get them out here. This event is being telecasted and there will be a live stream online. So there will be a live audience as well. And I just want to first thank
everyone else for coming. This is really an
initiative between students and the university to
essentially demonstrate that constructive conversations
and democratic deliberation really are still the norm in society. You know, right now politics is so toxic. We really see a lack of dialogue. We really see a lack of constructive engagement across political differences. And the goal is to show that
these conversations can happen. It is possible for intellectuals, still given our toxic culture, to really engage and come
to fruitful consensus points and come to a point of agreement. So I want to first introduce
our first panelist. Mr. David French. He is a senior writer and editor at the National Review Institute. He has done a lot of work when it comes to sort of advocating for
the Republican Party in the face of Trumpist thought. And he has done a lot of writings, especially in the
National Review Institute and recently in The Atlantic discussing how we can sort of counter the influence of President
Trump in the Republican Party. And then we have our esteemed
dean, Erwin Chemerinsky. He is one of the
preeminent legal scholars. He is also, on Wikipedia I looked today. And it said that you’re the
most cited legal scholar, or the second most cited, not the first. But the second. The second most cited. I guess that’s still a good honor. He has done a lot of work
in constitutional law and he is currently the dean
of the Berkeley Law School. And I want to thank
Professor Steven Hayward for bringing out Mr. David French. And I want to also thank the chancellor and our two organizations that
are sponsoring this event. BridgeUSA, who I am one
of the student leaders of, and we have the National Review Institute. BridgeUSA is one of the
organizations on campus. It was started two years ago. It essentially came outside of
the Milo Yiannopoulos riots, if you all remember, that sort of really cast
Berkeley into the limelight and really made free speech an essential issue on college campuses. So this is one of the 25 chapters. I am personally the CEO of the
organization and then we have some of our student
leaders in the audience. And our goal is to partner with the university to make these events happen. So with that being said, I am
going to start a conversation essentially about how we
engage politics and how we can figure out common consensus
on certain issues. Democracy is sort of the real topic today. What is the state of democracy? Where is democracy headed now? Where are we headed? So the first question right off the bat is what do you think is
the state of democracy? Everyone talks about
the doomsday is coming. – It might be. I’d have to say. Well first, thanks so much for having me. I really appreciate it. And I really am, it’s a treat to share the stage with Dean Chemerinsky. And Dean, you have the
distinction of being the person who came closest to anyone else in the United States of America to persuading me to vote for Donald Trump. Now to give some background, I read an article you
wrote in The Atlantic about the future of a
progressive Supreme Court and I was like, uh, no, no. But then the more I thought about it, I thought no, I still can’t
vote for Donald Trump. So this is a real treat. And so thank you very much for having me. I would say when I think
of the state of democracy, I tend to think more of what is the state of our constitutional republic? Because I think when you
use the word democracy, that often means majoritarianism. And some parts of our constitution are very much dedicated to majoritarianism and some are intentionally
counter-majoritarian. And are these parts functioning
the way they should? And I would say no, they’re not. Structurally we have a significant problem and at the most powerful
branch of government. People say three co-equal branches. They’re not three co-equal branches. The legislature is
designed to be more potent than the presidency and the Supreme Court. And it has become the least potent. So you think about the
House of Representatives as sort of the most democratic element of our constitutional structure. And yet it is the weakest in many ways. It is the weakest half of the
weakest branch of government and that is not what was intended. So that’s a tremendous problem. Then the other thing is I
think that’s a real issue is we are losing a culture of
respect for civil liberties, a culture of respect for free speech, even if the law is solid. And so what I mean by that is
we are beginning to implement, a lot of people don’t realize
that the First Amendment case law right now protects
free speech to a degree almost unprecedented in American history. And yet people often do
not feel free to speak even though they are more free
from government interference than they have ever been, arguably. There is a sense of social sanction and social consequences
and economic consequences and career consequences if you speak up that I think is really damaging people’s perception that our republic is healthy. And then we have the concept
of negative polarization. So negative polarization essentially means that if I am a Republican, I am a Republican not because I love Republican ideas but because
I really don’t like Democrats. If I am a Democratic, I am a Democrat not because
I like Democratic ideas, but because I really
don’t like Republicans. And this is a bipartisan problem. So if you look at some Pew data, they would say that 82% of
Republicans either have a very unfavorable of an
unfavorable view of Democrats. Just Democrats in general. It’s not always been the case
that it’s that unfavorable. Democrats are more tolerant. They have 78% of them have an unfavorable or very unfavorable view of Republicans. And I would say that is not
a sustainable way to build and to continue a healthy
constitutional republic. But other than that, everything is fine. – That’s rather somber. Dean. – Let me also begin by
saying what an honor and pleasure it is to be
here and how wonderful it is to share this stage with you. I am going to answer
your question directly. I don’t believe our constitutional
republic is in danger. The Constitution has lasted since 1787. There is no reason to
believe that it’s not going to continue to last in the future. I certainly believe that
Donald Trump is a threat to many things about our social fabric, but I don’t think he is a threat
to the Constitution itself. Elections were held all over the country a week ago yesterday. People were elected, people were defeated. Some elections are unresolved because the ballots are still being counted. But that’s what it
should be in a democracy. Now when you ask the question what is the state of our democracy, I am then also led to ask,
well compared to what? Compared to an autocratic society, our democracy is alive and well. On the other hand, we
have in the White House someone who lost the popular
vote by three million votes. In fact, twice in the last 16 years, or two out of the last three presidents, we have somebody who lost the popular vote becoming president. The United States is the only country in the world that considers
itself a democracy where the person who loses the popular vote can be president. We should be very concerned about that in terms of our democracy. Because of partisan gerrymandering, in terms of congressional districts, in terms of state legislative districts, in terms of the council districts. Often it’s not voters choosing
their elected officials, but elected officials
choosing their voters. And I think this is a real
threat to our democratic system. In terms of freedom of speech, and I know we’re going
to talk about that more, there is a greater commitment
to freedom of speech on the part of the Supreme Court
than at any point in history. I think we would agree with that. In terms of social pressures to not speak, that’s nothing new. That’s existed throughout
American history. And I don’t know that it’s worse today than it’s been before. I will agree with you
that I think our society is more polarized than at
any time that it’s been since Reconstruction, since the Civil War. And I worry very much what’s the path forward beyond that polarization? I think that polarization is deeply destructive of our social fabric. And I don’t think anyone’s come up with an idea for how to bring us together. – So David mentioned
there is a cultural attack on the Constitution, I would say. Or a cultural attack on the ideals. For example, social
pressures as you mentioned, or in the form of free speech there is a real cultural pressure. Would you say that that’s a risk? Or maybe is that sort of the way you characterize the argument? – I think there is not a cultural threat to the Constitution. It’s a cultural threat to
the value of free speech. So for example, here is what I mean. So I am in a Sunday school
class a couple of weeks ago right outside of Nashville, Tennessee. And Nashville, Tennessee,
for those who aren’t really familiar with it all that much, isn’t just the belt
buckle of the Bible Belt, it’s the Jerusalem of the Bible Belt. So I mean, it is a core that’s the head of the Southern Baptists. The Southern Baptist convention is there, Christian publishing industry,
Christian music industry. And a guy said, he works
for a major multi-national corporation that has offices in Nashville, and he said I don’t feel
like I can express my point of view in the same way
that my colleagues can without risking my job and
without risking my future. And there is a widespread
sense, widespread sense, that particularly if someone
is culturally conservative or traditionally religious
that in many parts and sectors of the American economy, there is a risk to your career, a risk to your livelihood even if you are civil, even if you have never discriminated against
anybody in the corporation, that the existence of your point of view, that your point of view
is known, is a problem. And I think that that is something that is a pervasive feeling across
the United States of America. And it’s something that is embittering an awful lot of Americans right now. And I think it’s something that our culture has to get a grip on. – So one of the things
that Erwin said was, and then I’ll let you respond,
is this has existed though. This has been a part of American history. Do you think it’s at a peak right now? – I don’t know that it’s a peak, but it’s worse than it
was in recent years. And so a lot of times we have recent, we always suffer, people
suffer from recency bias. Maybe it’s recency bias
that makes me think that LeBron James is the
greatest of all time. I think he actually is. But we always bias, it’s always worse now. It’s always better now. Whatever superlative you want to use, we have this recency bias. However, it is absolutely the case, it is absolutely the case that a person interacting in corporate America, particularly progressive-dominated
corporate America, if they have a particular point
of view on sex and marriage, on particular hot button cultural
issues, they are at risk. And that is something that
I think is a real problem. And it’s something that is
feeding negative polarization. Because it should not be
the case that a person, so long as they’re not discriminating, they’re being respectful in the workplace, that the mere existence that you have a particular point of view, the mere knowledge that you
have a particular point of view will inhibit your career or
perhaps destroy your livelihood. And I think that that is a real problem. – I’m going to disagree. I do want to draw a distinction between freedom of speech as a
constitutional matter and freedom of speech in
terms of social interactions. There is a really important
distinction there. The First Amendment
applies to the government. The First Amendment doesn’t
apply to private institutions. When I taught at Duke Law School, if I had criticized the
president of the university, I guess I would say if
I were again to have criticized the president of the university and he would have ordered me fired, I couldn’t have sued him or the university for violating my First Amendment rights. The Constitution doesn’t apply to a private institution like Duke. But here, if I were to give
a speech critical of Janet Napolitano and she were to
order me fired, I could sue. In fact, you can be my witnesses. I would sue. Because this is a state institution. The First Amendment applies. And the point that I think we agree to is we have a Supreme Court
more committed to protecting free speech than at any
time in American history. Now if you look back
through American history, you find not only that the Supreme Court wasn’t being protective of speech, but there was also enormous social pressures with regard to speech. Think of the McCarthy era from the late 1940s through the 1950s. Merely being suspected
of being a communist was enough for somebody to lose a job, sometimes even to lose liberty. And the Supreme Court didn’t
stand up to those pressures. We’re not experiencing
anything like that now. You can go back in American history. During World War I, Congress
passed statutes that made it a crime to criticize the
draft or the war effort. A man went to prison for 20
years for circulating a leaflet saying do not submit to intimidation, the draft is unconstitutional. Not a single piece of evidence existed that his leaflet had the slightest effect. But the Supreme Court upheld the conviction and the sentence. That was tremendously chilling of speech. During the Civil War, Abraham Lincoln ordered
the jailing of people who criticized the way the North
was fighting the Civil War. And no court stood up for them. Talk about chilling speech. And I could give so many more examples. So instead what we’re talking about now, the question is do conservatives have reason to fear that if they speak up and express their conservative views, they’ll lose their jobs,
be socially ostracized? I think there is very little
evidence to support that. I think we’re at a point
in time where everyone wants to portray
themselves as the victims. I see this all the time in my law school. Every group wants to tell
me why they are the victims. And I think conservatives want to tell us they are the victims. Gosh, we have a conservative president, still at this moment we
have both Houses of Congress controlled by the Republican Party, we have conservative majority in the Supreme Court for some time to come. Maybe that’s why I can’t
feel so sympathetic with conservatives being
the victims in our society. The reality is there are a
few high profile incidents of individuals who have
been fired for saying offensive things in the workplace,
like the Google incident. And I sure don’t see
many incidents of people losing their jobs or
being expelled from school or losing benefits for
expressing conservative views. I agree we’re deeply
polarized as a society. That’s obvious. But I don’t think that conservatives are the victims at this point in time. – I’m sure you have more. – Yeah, so we are in this
really interesting environment where you are exactly right,
both sides feel aggrieved. Conservatives, if you talk
to a conservative audience, are going to say yeah,
we’ve got the government, but we don’t have the culture. And the culture is more
powerful than politics. And it’s a very, it’s a famous statement
in conservative circles that politics is downstream from culture. And so an awful lot of
really smart conservatives look at politics and they
say politics as an influencer of the overall course of a
nation, the culture of a nation, the ethos of a nation,
is lower in importance and priority than the arts, for example. Lower in importance and priority than the marketplace, for example. And so what you have
is a dynamic right now where conservatives will
say yeah, we have politics, we don’t have the more important thing. And then a lot of folks
on the left will go, how on earth can you put yourself in any kind of position
where you feel like you’re losing anything
when, at least until 2018, the Republican Party
was at a 100 year high in political power and influence. 100 year high. But a lot of this is the product of the polarization that
we’re talking about. Each side sort of has its spheres that it has been more successful at. And what ends up happening
is that people who are, those who are so, for
back of a better term, sort of strangers in a strange land, the people who enter into the core sphere of the other side often
feel, and often for very, very good reasons, quite
isolated, under siege. And you can talk to progressives
who would say the same thing in different contexts
in this country as well. And so that’s a product
of negative polarization. And one thing that I would say is it has reached such a critical mass, especially in the academy,
especially in, for example, critical areas like Silicon
Valley that you would say, well I’ve never censored any
GOP employee that I have. And then you look around and you go, but I don’t have any of
those colleagues at all. You looked at, there was this survey of
Silicon Valley giving. It was extraordinary political giving. 98.5%, 99% going to one side. And what we’ve done is we have created monocultures within this country that are, where we’re beginning to
wall out the other side. And that is something that’s deeply corrosive to the social fabric. And I’m not saying oh, look at the victims, look at the victims. I’m saying there is a
reality of a walling off and a cocooning in this
country that is corrosive. And one of the aspects of
the cocooning and walling off is that within those
communities that are cocooned, you will see an increasing
amount of intolerance and a decreasing amount of openness or even desire or interest in being open to people with opposing points of view. – So I want to bring this conversation to the college campuses quickly. And it’s still pertinent. There is often, the argument
is made that there is a real cultural pressure
against conservatives. And the most recent example,
actually a high profile case, was just at Berkeley a couple
of, I think last week it was, that one of the student
senators spoke against transgender rights on
campus or said that it doesn’t necessarily align
with their religion. And so there was massive
protests and uprising against that amongst the student body. Do you think there is a cultural pressure against conservatives on college campuses? – Well not at Hillsdale. But you know, absolutely, absolutely. Now there are times
when I will freely admit that there have been student groups, Republican student groups,
conservative student groups, who sort of have intentionally trolled. Like they’ll intentionally
whip of a fervor and then go oh, look at
all this intolerance. I’m not interested in
those kinds of incidents. But I think it’s hard to look at the state of discourse on college
campuses and say that, now I do actually think
it’s better in 2018, 2019, so far than it has been
in some previous years. But you know, when we
have had acts of violence, we have had acts of
attempted heckler’s vetoes. You have people who will contact me and because I write about free
speech on college campuses, they will talk about incidents
that never make the news that are extraordinarily,
extraordinarily vicious acts directed against people
who especially disagree on the sexual revolution issues. Especially on those issues. So to say that discourse is
healthy on college campuses I think is just flat out wrong. And then I would say
it’s a natural byproduct of an ideological monoculture. It is very hard to be, it is
more difficult to be tolerant when you are rarely if ever exposed to thoughtful perspectives
from the other side and have often come to
believe that these people, rather than being people of good will, are inherently malicious
or bigoted in some way. – Let me start with our agreement. I believe that college
campuses should be a place where all ideas and views are expressed, all are tolerated, all are respected. Disagree though with a lot of
other things that you said. To start with, I am a liberal. And if I could find a bottle with a genie and I could trade and
get a liberal majority on the Supreme Court, a liberal president, a liberal controlled Congress, I would gladly give up the culture in order to be able to have that. – Deal. – If only we had that
kind of a choice to make. In terms of Silicon Valley
or any other workplace, I challenge you to show me that there is discrimination based on ideology in hiring where other than a rare instance somebody is getting fired
on account of ideology. Now why do people have
particular ideologies? It’s interesting. Many studies have shown the
more educated people become, the more liberal they become. And so people who have less
than a high school degree are much more likely to be
politically conservative. On the other end, those who
have post-bachelor’s degrees are much more likely to be liberal. And so you need to take
that into account when you talk about liberalism in a
place like Silicon Valley or liberalism within universities. I have been a professor now for 39 years. This is the fifth university where I have had a full-time appointment. I teach large classes. I don’t see the chilling of the conservative viewpoint that you do. I don’t see a crisis of free
speech on college campuses. I walk across this
campus many times a week. There’s always free speech activities going on in Sproul Plaza. There’s always posters all
over campus for speakers, liberals and conservatives. And that’s true of campuses
across the country. Now I wrote a book titled
Free Speech on Campus, so people write me all the
time with incidents too. But they’re the atypical incidents. Now it’s true that any environment, there can be criticism if you say things that others don’t like. So if somebody comes before a group and expresses a view that
the group doesn’t like, they have free speech rights to say that we don’t accept that message. So if somebody wants to say that same sex marriage is morally wrong, they have the First
Amendment right to say it. But so do people have the First Amendment right to say we disagree with you and we think that your
position is bigoted. And that’s free speech too. It can’t be that free speech is only to express a conservative viewpoint and those who want to criticize the conservative viewpoint
are doing something wrong. So I don’t find the silencing
the conservative viewpoint. I don’t see it in my classes,
I don’t see it on this campus, I don’t see it on campuses across the country as a general matter. – So we came across this point of, is political power more important or is cultural power more important? And I think that’s a good
transition to the midterms. Do you think, first, why do you think that political power is more
important than cultural power? Do you think that if the laws are enacted but society is necessarily, the
majority against those laws, do you think those laws
have much force or impact? Is there a reason why you think political power is more important? Dean. – What the Supreme Court
does affects all of us. Often the most important and
intimate aspects of our lives. I think we now have five
justices who are going to effectively explicitly
overrule Roe versus Wade. And it is going to have
a devastating effect, especially on poor women in this country. A devastating effect in
terms of their lives, their families, their careers. We’re going to have a
Supreme Court, I think, that’s going to very much
narrow the protections for gays and lesbians in this country. And it’s going to have a
devastating effect on their lives. And I can go through
example through example of what I think it’s going to mean that we now have five
conservatives on the Court. And here it’s not about abstractions. So what it’s going to
mean for people’s lives. I look at what Donald Trump
has meant for this country. I look at the environment. We have a president who denies the problem of climate change. Who might, by pulling out
of the Paris climate accord, be giving up the only chance we have to literally save the planet. I’ll take saving the
planet over cultural power. – So you are ready to give up all of that? – Oh, because you see
what would happen is, when you have the cultural
power, left and right moves. And the culture moves left and right. The culture determines
what is the left edge and what is the right edge. And so if conservatives
had the cultural power, what would be a progressive Supreme Court would be different. And what would be a conservative Supreme Court would be different. So what happens is when you
have immense cultural power, you change the entire frame of reference. So for example, let’s
take the abortion debate. As a pro-life American, what
I want is zero abortions. That’s what I want. I do not want any abortions in
the United States of America. And now, there are a couple of ways. I don’t think that there
is any prospect reasonable, even if Roe v. Wade is overturned, that you would reach zero abortions in the United States of America
without immense cultural change. Immense cultural change. Because California would
immediately protect the right to abortion and
a host a blue states would. Red states would have
varying legal regimes. But abortion would still be legal in the United States at scale. But if there was immense cultural
change regarding abortion, you could reduce abortion
far more dramatically even than by eliminating Roe v. Wade. That’s the power of culture. And so one of the things
that we often forget is that culture sets where the boundaries
of political debate are. Culture sets what are acceptable ideas to even begin to offer. That puts the, there’s this phrase called the Overton window. The Overton window being sort of this, the window of acceptable
debate on various issues. And where the Overton window moves is where politics moves in many ways. So for example, one thing
that has been outside the Overton window, by and large, and hopefully will remain
outside the Overton window, is out and out mainstream
expressed white supremacy. Like that is something that
both political parties reject. And so that is a point of
view that is completely outside of the mainstream and
that’s the power of culture. And so that’s when I say that
culture is more powerful. What culture does is it
shifts left and right. If you look at the Clinton
political positions, the Bill Clinton political positions, just to look at the power of culture. Bill Clinton in the 1990s
passed a legislative package, a series of legislative
packages that could not make it through an all
Republican legislature with a Republican president now. You could never pass a
Defense of Marriage Act. Setting Obergefell’s, you couldn’t now because of Obergefell. But you couldn’t pass a
Defense of Marriage Act. The Religious Freedom Restoration Act, which passed with overwhelming majorities, would not be passed. The elements of the Clinton crime bill would be an anathema now. Like you could go down the list in the Clinton administration and
you would say those things are not politically possible anymore. Why are they not? Because the culture shifted radically. – So a lot of those, I want to– – Can I just say, I think we’re
drawing a false distinction. Because the reality is culture and politics are inherently integrated. And I’m not sure we’re gaining anything by saying which is more
important than the other. Take marriage equality. It wouldn’t have happened
if not for the legal system. It was the Massachusetts
Supreme Judicial Court in 2003 that was the first state to
find a constitutional right to same sex marriage under
the state constitution. And then other states began to do so. And then slowly this became something that changed public attitudes. And within 12 years there was a right to same sex marriage in all states. Right now a significant
majority of the population and 85% of voters under age
35 favor same sex marriage. So I worry that by trying to
separate culture and politics, we’re doing something
that isn’t very useful and is actually a false distinction. – So we talked about the Supreme Court. And I think that this
sort of is a good segue from the distinction between culture and power and whether or
not that should exist. Should the Court be influenced
by these cultural shifts? Isn’t the Court an
independent institution? Or do you think it’s lost
its impartiality in politics? – I think we’ve got to take out the word, you talked about the word
impartiality of the Supreme Court. The Supreme Court is not political in some senses that we use the word. It’s not elected. It doesn’t face election by the
voters at any point in time. No one can lobby the Supreme Court. You can lobby your city council member, you can lobby a state legislator, you can lobby a member of Congress. But you can’t lobby the Supreme Court. So far as we know, Supreme
Court justices never trade votes in the way legislators will trade votes. So in that sense, it’s not
a political institution. But it has always been
through American history and always will be that
the values of the justices determine how they decide cases. The language of the
Constitution is so ambiguous. What’s cruel and unusual punishment? What’s due process of law? Also, no right in the
Constitution is absolute. Inevitably it’s about
balancing competing interests. And that’s a product
of who is on the Court. That’s been true from the
first days of American history. Marbury versus Madison was a function of the views of John Marshall. From the 1890s to 1930s,
a very conservative Court struck down 200 federal, state, and local laws protecting
employees and consumers because of the ideology of the justices. The Warren Court expanded civil
rights and civil liberties because of the ideology of the justices. So I don’t think that the Court is more or less impartial today than it’s been. It’s just that ideologically
we have the most conservative Court now we’ve
had since the mid-1930s. – Just quickly, people of my
average intelligence would ask, so it’s never been a
nonpartisan institution? It’s not right to talk about it as a nonpartisan institution? – Well what do you mean nonpartisan? – Well I would say that in the mainstream, when we talk about the Supreme Court we assume that it cannot be influenced. It’s just not influenced
by those cultural forces. Kavanaugh’s nomination, everything that came with
Kavanaugh’s nomination, that has no effect on the
decisions of the Court. – The Supreme Court justices are human beings that live in society. So inevitably they are going to be influenced by the society
that they live in. And I don’t think the Court is partisan in a Democrat or Republican sense. I don’t think it’s partisan in the sense of blatant party politics. I do think, though, that the
justices have a great deal of discretion in how they
exercise it as a result of the views and the life experience
of those who are on the Court. I’ll give you an example. Bush versus Gore in December of 2000. I remember on Friday night. And I can tell you that it
was December eighth, 2000. The Florida Supreme
Court said that all the uncounted votes in
Florida should be counted. Does that sound familiar today? Does that sound like
deja vu all over again? And I remember I went
on a television program, River Live on CNBC, and said you know, everyone who I know who voted for Al Gore takes the view that the
Florida Supreme Court was right and all of the votes should be counted. And everyone I know who voted
for George W. Bush says that there should be an end to
the counting of the votes. And I said why believe that
the Supreme Court justices are going to see it any
differently than that? And they didn’t. The five most conservative
justices all came down on the Bush side and said end
the counting of the votes. The four liberal justices
came down on the side of the Florida Supreme Court
and said count all the votes. But I don’t think it’s that
the five conservative justices were saying we want a Republican
president and the four more liberal judges saying we
want a Democratic president. I think we look at things
through our own experiences. We look at things through
the lens we start with. And the justices are no
different than that either. They can aspire to try to decide cases to their best views of the Constitution, but they are still human beings. They still live in a society. – Well nobody disputes that every judge has a judicial philosophy. Judges have judicial philosophies. The question is what is your philosophy? What will that philosophy mean in considering the outcomes of cases? What’s the legitimacy of
that philosophy versus, and what are the dangers
of that philosophy? What are the virtues of that philosophy? One of the reasons why
I believe, you know, I prefer to see justices
who take a position that their job is to try
to determine the original public meaning of the Constitution, of the statues that they interpret. It’s because I believe that that is putting the justices
where they are intended to be within a constitutional structure. And that when they are outside
of that particular role, it distorts the entire structure
of our federal government. And it actually recreates
some of the very institutional and structural problems that
we have been talking about now. For example, where the
House of Representatives. One half of what is supposed
to be the most powerful branch of government is now
the least consequential. How inconsequential is the
House of Representatives? You talk to, if you put a Republican right now on a polygraph machine and you asked them on
a scale of one to 10, how upset are you about
losing the House and how happy are you about expanding
the lead in the Senate? The losing the House, like they could say, and they would say I’m actually
thrilled with expanding the Senate and don’t care
that much about the House. And they would pass that
polygraph with flying colors. Because the energy of the
Republican Party right now is not directed towards legislation. It’s not. I hate to say that. I think there are some really good legislative reforms that could be passed. But it’s just not. The executive branch has
so much power right now. So much power. The thing about this,
Democrats actually were quite optimistic about their
political power in the US going into the 2016 election
even though they had been slaughtered up and down state
and congressional races, had lost a net of about 1000
seats in state legislatures because they had the presidency. And so that distortion of power
I think is a real problem. And so one of the things
about the philosophy of applying the original
public meaning is you’re ratcheting the Court back
into its intended position. And that’s where our
system best functions. – May I respond to that?
– Yeah, go ahead. – I think that it’s impossible
to follow the original public meaning as a way of
interpreting the Constitution. And no justices ever really do it. Let me try to explain that a little bit. The Constitution is written
in very broad language. As I mentioned, what’s cruel
and unusual punishment? What’s freedom of speech? We don’t know what the
original public meaning was. So many people participated
in the drafting and ratification of the Constitution. It’s a myth to say there was some intent. And even if somehow we could know it, it’s so irrelevant for our modern world. Take the issues the Supreme
Court has to deal with. Do corporations have the right to spend unlimited amounts of money
in election campaigns to get candidates elected or defeated? That was the issue in Citizens United versus the Federal Election Commission. I challenge anyone to find
an original public meaning in 1791 about that because corporations didn’t exist then as they exist today. And election spending didn’t
exist then as it does today. In fact, if we were to try to follow the original public meaning, it would lead to such repugnant results we wouldn’t want to do so. I’ll give you an example. Article II of the Constitution
refers to the president and the vice president
with the pronoun he. It’s clear that the Framers
intended that the president and vice president would be male. Does that mean that it’s unconstitutional to elect a woman as
president or vice president until the Constitution is amended? Or another example. The same Congress that voted to ratify the 14th Amendment also voted to segregate the District of Columbia public schools. Does that then mean that Brown versus Board of Education was wrongly decided? Because you can’t reconcile with the original public meaning that was adopted by Congress at the time
with the 14th Amendment. Besides all that, there is strong evidence that the Framers of the Constitution didn’t want their views to be controlling. In fact James Madison took
the only notes we know of of the Constitution convention. And he instructed that they not be published until after his
death, which was in the 1840s. If you really want to
follow the Framers’ intent, the Framers’ intent was that
their views not be followed. But beyond all of that,
those justices who tell us that they are following the original public meaning really aren’t doing so. I’ll give you an example. Affirmative action. I don’t think that we can ever really know the Framers’ intent, but it’s clear that the same Congress that ratified the 14th
Amendment also adopted a lot of programs that we know of
today as affirmative action. Things like the Freedmen’s Bureau. And so you think that
the conservative justices who want to follow original public meaning would say affirmative
action is constitutional. And yet the foremost opponents
of affirmative action have been Antonin Scalia
and Clarence Thomas. And you never see a word in their opinions about public meaning. Well there was a terrible
Supreme Court case five years ago, Shelby
County versus Holder, that struck down provisions of the Voting Rights Act of 1965. And this is a law that had been renewed by Congress unanimously in the Senate with only 33 no votes in the House, signed by President George W. Bush. The Supreme Court five to four found it unconstitutional because it violated the principle of equal state sovereignty, that Congress had to
treat all states the same. I challenge anyone to find
that in the Constitution or in the original public meaning. In fact again, the Congress
that ratified the 14th Amendment created military rule over
the South in Reconstruction. So they didn’t believe that Congress had to treat all states the same. The reality is conservatives
invoke original public meaning when it gets to the results
they like and completely ignore it when it doesn’t get
the results they like. – That’s completely false. The fact that the
Constitution is susceptible to debate about the original
public meaning is not the same thing as saying there is
no original public meaning. And the idea that, for example, if you talked to Antonin
Scalia about, say, what would he prefer if he was going to draft the Constitution from the ground up, what would his preferred stance be, say, on various due process issues regarding the rights of criminal suspects? Scalia himself as a man might be quite the law and order hawk. When in fact, when he was
deciding a number of cases that dealt with the rights
of criminal defendants, he sided with liberal
justices time and again because he felt that this is what the meaning of the Constitution dictated. Now one of the things that I think is important to realize is, and Dean has done a very able job of misdirecting just a tad. No one would argue, for example, that the original public meaning and the use of the male pronoun in describing people who are going to be president and vice president, that that was meant to be a mandatory provision of the Constitution. That’s the kind of thing
that’s very easy to discern. Now there are things
that are more difficult to discern that require judgment, such as what is the freedom of speech? And the interesting thing
is there’s not a whole lot of contemporaneous records about what the freedom of speech is
in the First Amendment. It’s one of the reasons why there has been so much contention around that. But one of the problems
that we have is when you say I am going to abandon
a notion of trying to figure out what these words were intended to mean when they were passed, when you abandon that, what
you then have is essentially a document that becomes
extraordinarily malleable. Just extraordinarily malleable and subject to multiple
meanings depending on the desires of the
justice almost entirely. And so one of the things
that the Dean’s article, how he almost persuaded me
to vote for Trump when he was talking about what a progressive
Supreme Court would do, he was talking about a
progressive Supreme Court, as I recall the article, that would create some positive rights, that would create in much the
way some state Supreme Courts have stepped in and created
what are called positive rights. There’s you have a right to a very particular kind of education, for example. And that is a situation
where what you have is the Supreme Court becoming in a very real way a superlegislative body. And that’s a problem for our
constitutional structure. – Can I just ask one followup question? Is there a way that we can change the nomination process to
solve a lot of these issues? – Yes. If I could just respond before that. Let’s take Antonin Scalia as an example. Because that’s the one that you picked. He believes that governors should be able to give unlimited amounts of
money to parochial schools. He believes that the
people who owned businesses should be able to discriminate against same sex couples on
account of their religion or refuse to provide
contraceptive coverage for women on account of the business
owner’s religious beliefs. He believes that there should be no constitutional right to abortion. He believes that affirmative action shouldn’t be allowed, and so on. His views are remarkably like those of the Republican platform. Now maybe you can believe
that the Framers in the 1790s, 1787 when the Constitution was drafted, or 1868 when the 14th
amendment was adopted, have the same views as the
Republican platform today. I don’t think so. I think he is simply reading his values into the Constitution
and they’re coming out that way as a Supreme Court justice. I am not saying that it’s Republicans who do this and Democrats don’t. I’m saying it’s the nature of a document written like the Constitution. And such open-ended
language that inevitably how the decisions come out
as a product of who is there. Their life experiences,
their ideology and views. It’s true for Democrats,
it’s true for Republicans. Why did the Republicans fight so hard to get Brett Kavanaugh confirmed? Why did the Republican senators ignore the compelling testimony
of Christine Blasey Ford? Because they wanted their
conservative justice on the Court before
the November elections. And they wanted to make sure that they had the conservative majority because they know how much it means to have five conservative
justices on the Court. There is no such thing as a value neutral constitutional interpretation, which is the transition to your question. I do think the nomination
process has become unduly toxic. And so I have a proposal. And maybe here we can find common ground. – Ha, I’m skeptical. – I think that the next president, Democrat or Republican,
should say I want to get past the bitter confirmation fights. So I am going to create a
judicial nomination commission. If it’s a Republican president, 60% of the members are Republican. If it’s a Democratic president,
60% will be Democrat. And I want you to send me three names that 75% of you agree to. Three people who you think would be superb Supreme Court justices. And I promise to either pick from your names or ask for additional names. I think that would tremendously diffuse the ugliness of the confirmation process. And any president could do it. And wouldn’t it be nice if
both Democrats and Republicans could say this would be
a really good change? Will you agree? – No, no. – I tried. – Yeah. And Brett Kavanaugh, ironically enough, would have been a guy that a commission like that would have selected. – We can debate that. – I mean, Elena Kagan
invited him to speak, to teach at Harvard Law School. Before the Christine
Blasey Ford allegation he had a lot of people who respected him on the left side of the aisle, were pleased by his nomination,
particularly compared to Amy Coney Barrett as an alternative. So and in fact when he
was actually selected, one of the sounds you
heard was a thundering sigh of disappointment from much, a large part of the Republican coalition. They did not want a Brett Kavanaugh. – Why not my proposal though? Because I would make the same for a Republican or Democratic president. We would agree in advance to do this. – Do you have a specific
response to the commission and the creation of the commission? We’re sending this tape to
the White House, by the way. It’s going to be implemented.
– Yeah. So 75% of a. – Right. And a Republican can pick,
make it a 20-member commission. The Republicans get, if
Trump wins reelection, or some Republican in 2020, the Republicans get to pick
60% of the numbers of it. And if it’s Democrats, 60%. And just send me a name. And that way it would be
really a merit selection. And say I want somebody who 75% of you, liberals and conservatives. – If you have a lot of experience with the legal establishment in this country, the idea that an elite
commission selecting a person is a merit-based process is hilarious. The legal elite of this country is, present committee excepted, but the legal elite in this
country is a pretty singularly unimpressive collection of
individuals in my experience. And the idea that I am going to take a constitutional process
and I am going to delegate that constitutional process to an unelected board of legal scholars, when I think legal scholarship
and the community of legal scholars in the United States
is frankly pretty low rent, both as a matter of character and as a matter of
intellectual quality, no way. – I am going to ignore the ad hominem argument on my profession. It’s not going to get us any place. – I am a lawyer too! – But what I do want to
focus on is what if I let The National Review pick
the Republican group and the ACLU pick the Democratic group? Because to me, the key isn’t how do you pick the people from the commission. The idea is trying to get a process to generate names that would
be focusing on merit and that would have some
bipartisan support to start with. And so we can certainly, between us, come up with a way of choosing the members of the commission that we’re happy with. I just think that–
– Well let me– – This is a classic law school exercise. He’s asking me a hypothetical
that could never, ever happen in a million years. – I disagree. Jimmy Carter when he
was president created– – But National Review is
never going to pick them. – Well. Jimmy Carter when he was
president created merit selection commissions for federal
court of appeals judges. He tried to do it for federal
district court judgeships, but the senators wouldn’t
give up the prerogative. And they were incredibly
successful in generating people who turned out
to be terrific judges. Also the most diverse group of judges to that point in American history. Prior to Jimmy Carter’s presidency, there had only been two women serving as federal court of appeals judges. Because of his merit selection plan, nine women were picked in
his presidency for that. He never had a vacancy to
fill on the Supreme Court. But you asked me what would be a mechanism to reform the nomination process. And I think I already
outlined one for you. – And before we go to Q
and A, I just want to ask, do you think there is an alternative to the president picking the nominee? Can we agree on that or do
you think that the president is the perfect, or not the perfect, but– – The constitutional
process of the president picking and a Senate
advising and consenting, that process is not the problem. That is something that we have been doing for a very long
time in this country. The problem that we have
is what you have seen is the consequence of the
negative polarization. The power of the toxic culture. I’m going to go back to that. You have a process that has
existed for a very long time that is now existing in a
different American culture. And when it exists in that
different American culture, it has the natural consequence of that, because of the negative polarization, is that you are going to see the kind of combat that we have seen. There is not a way out of
that in the short term. There just isn’t. You would have to amend the Constitution to change the process. And if you ever had the amount
of consensus that you needed to amend the Constitution
to change the process, the problem would already have been solved because the American national community would be fundamentally different. It would be a fundamentally
different, more united place. – Got it, okay. Well thank you so much. I think that the way we are going to do this is we have Q and A. If the audience has questions,
we have a microphone. But because it’s 2:00 to 3:30, a lot of students aren’t here. But we have a lot of student
questions that were sent to us. Because we are on a campus, so it would be nice to
also hear from students. So I am going to ask one student question. But do we have questions
from the audience first? Patrick. You pick. I’m not going to pick. It’s on you. – [Diane] My name is Diane Baker and I am a community member
and I am an attorney. And nothing has ever upset me
quite so much as the Congress blocking Obama from nominating
a Supreme Court justice. What do you have to say about that? – Which one of us? – You can go first. – Okay. So there is a presidential appointment and a Senate role in
advising and consenting. One of the interesting
things about that is that everyone involved in the
process won their elections. And Obama won a presidential election. And McConnell and the Senate majority won all of their elections. And there was, in my view,
the Senate exercised its advise and consent function
and refused to consent. And there is nothing out of bounds from the constitutional process. That was the constitutional process. And one of the things I
find difficult to deal with in this debate is I just
flat out do not believe that if in the last nine months of, say, George W. Bush’s presidency, if Ruth Bader Ginsburg
had had to step down that a Democratic majority
Senate would have voted on, much less confirmed anybody that George W. Bush had sent forward. But that’s the consequence of elections. – Let’s keep these
responses short, by the way. So that we can get to others. – 24 times in American
history prior to 2016 there was a vacancy on the Supreme Court in the last year of a presidential term. In 21 of 24, the Senate confirmed. In three instances the
Senate denied confirmation. This is the only instance in history where a Senate had ever
said no hearings, no vote. And no one has raised
the slightest question about Merrick Garland’s qualifications. It was entirely power politics. And talk about increasing the
toxicity and polarization. I think now from the foreseeable future, whenever a president and
the majority of the Senate are of different political parties, certainly during the last two years and maybe through the whole presidency, it’s not going to be possible
to get somebody confirmed. I think the Republicans set a terrible precedent for the future. – [Audience Member 1] Hi, thank you. So it seems like the general
theme of the discussion is kind of the polarization
of our politics. And it seems to me that
there is kind of two more or less unique factors
for the current time. Which is one, that this is that the split is more or less even or is pretty even in the United States between
who supports those parties. And second, that the split
is fairly geographical. So I’m wondering what you think the role of embracing our federal system could be in dealing with that issue
and if that’s something that you support or what
the problems are with it. – Oh, I think that we are,
if we want to turn down the temperature of American politics, we are going to have to
embrace more federalism. The problem that we have right now is, one of the problems that we have right now is citizens of California, Ted Cruz has too much power over the lives of the citizens of California. Dianne Feinstein has too much power over the lives of the citizens of Texas. And so what you end up having is an electoral dynamic where Nancy Pelosi is the issue in a
congressional race in Alabama, where Mitch McConnell is
the main issue in, say, Senate races in Washington or Oregon. Because this is something that as a
conservative would be heresy, but hold with me for a second. Part of me actually wanted to see California pass single payer. Here’s why. It would have revived,
in a very dramatic way, the notion of our states as
laboratories of democracy. To have single payer happen, because just the financial reality of it, California would have had
to have gotten a series of exemptions and waivers
and special considerations from the United States
government to kind of detach it from the rest
of the welfare state. Which would have then
allowed multiple other states with other points of view to
petition the federal government and to seek from the federal government a way to detach themselves
and create their own systems. And I think it could have really revived federalism in this country. But I think we have a fundamental
structural problem in that we are living lives that
are increasingly customized. So one of the ways that
Google is so huge and powerful is it provides a very customized
experience for the user. One of the reasons why Amazon
is so huge and powerful, it provides a customized user experience. We are living lives that
in many of our other areas are very customized and
then we are fighting over a government that is
increasingly centralized. And especially when we have very different cultures in this country, very different cultures concentrated in specific geographic regions, and that is a recipe for further conflict and further division. – I think it’s so much
more complicated than that. Look at right now the races
that haven’t yet been decided. Look at how close the
races are for governor and senator in Florida or
for governor in Georgia. Or just look at some of the races for Congress here in California. As of a little bit ago this morning in the 45th congressional district, Katie Porter, my former
colleague at UCI Law School, is 200 votes ahead of Mimi Walters. So it’s not just the difference between red states and blue states. We are just so closely divided
in so many ways as a society. Then I think the interesting question, and it’s one really that isn’t in my competence as a law professor, of how did this come to be? I don’t know that we’ll
be able to solve it unless we come up with a
better analysis of why. Some of it is how the political parties have become much more
ideologically defined. It used to be that, because
of Southern Democrats, there was a real conservative
wing in the Democratic Party. That no longer exists. It used to be that there
were liberal Republicans, Rockefeller Republicans,
John Lindsay, Jacob Javits. That no longer exists. When Susan Collins is the liberal part of the Republican Party, there is no liberal part
of the Republican Party. I think the change in media
has contributed to this. The country has always been divided. But I think the development of media in the 20th century
created a national culture in a way that never existed before. People were watching the same movies, then listening to the same radio programs, then watching the same television
programs and same news. Now we can just watch the news that fits our ideological profile. And so we don’t have
that unity coming about. I don’t think we ever can really decrease the authority of the national government. We need it for national defense. We need it for basic civil rights. We need it for basic programs like Medicare and Social Security. So I think then what we’re talking about is something much more on the margins of what might we leave to state and local governments
without jeopardizing that, which almost all believe we need the national government to do. – Do we? Patrick, over there. I think you can actually just speak. I think it’s okay. – [Audience Member 2] Thanks for coming. It seems to be an interesting job for diagnosing one of our main problems. I think it’s on the issue– – Oh, for the broadcast he needs the mic. – [Audience Member 2]
Also, then I won’t have to feel like I’m yelling into the mic. So that I don’t have to do this. So I guess I’m curious a little bit more maybe about the symptoms of the problem that you sort of walked around. And maybe what I see as
being an inability to sort of solve big problems on our
political system anymore. I mean, we could choose
any number of them. If we’re just looking outside, if we look at the sort of
smoke-filled skies of California. I am someone who believes
in climate change. I am also someone who is entirely open to any solution to it. I would accept a carbon tax if
that’s what Republicans want. I would accept all nuclear
power if that’s what they want. But we are unable to have an honest conversation about real problems. And obviously we are unable
to solve real problems because we can’t even figure
out if we all agree on them. I am sort of curious about
how you guys diagnose, like beyond sort of this
conversation about conversations, to actually starting to solve
these really big issues. – So I think it’s going to get worse before it’s going to get better. And I think that one, was
it Churchill who essentially said one thing about America
is we’ll do the right thing after we’ve tried the wrong
thing in every conceivable way? So I don’t see, I don’t
see an immediate mechanism on the horizon to moderate our politics to move us into a situation where intelligent dialogue,
healthy political debates, healthy political compromise
are the order of the day. I think if you look over the
course of American history, we have had moments where that’s the case. But I think dysfunction
in politics has been a lot more common than
we would like to think. But I would say this. Here is what I have been
urging people as I speak on college campuses and I
speak out in communities. Okay, can we at least, can we at least agree on
basic civil liberties? Can we at least circle the
wagons around the Bill of Rights? Can we at least say, sort of the legal corollary
to the Golden Rule, I will fight for the rights of others that I would like to exercise myself? And if we can at least build from a common defense of civil liberties, one of the things in my experience, because I have defended people
on the left and the right, their rights to free
speech and rights to free exercise of religion and
their due process rights. That process of defending someone, of standing up for someone
that you disagree with, actually bonds people. It actually creates a relationship. So that’s a little, that’s a beginning. That’s a beginning idea. The other thing is, as
far as a cultural change, we have to rediscover the
very concept of tolerance. I don’t think we even
know what that is anymore. So for example, if you are going to talk to somebody and you say are you tolerant? And they might say well yeah. What’s the evidence you are tolerant? Well I am accepting of
people of every race, religion, gender identity,
sexual orientation. And one of the things I’d ask next is what’s wrong with those folks then? Well nothing is wrong with them. Well then what are you tolerating? Tolerance implies that there is something wrong that you have to tolerate. So there is something
wrong that you are going to either overlook or you are going to accept and value the other aspects of the person. And we’re beginning to really lose that. We are beginning to really lose that. And so I think from a legal point of view, I would really like to
see a greater respect and bipartisan defense of
fundamental civil liberties. From a cultural perspective
I would like to see a greater value placed on
tolerating and respecting people for whom there is something
that you have to tolerate. – I certainly agree in terms of embracing the basic fundamental rights
under the Constitution. I disagree in terms of your
definition of tolerance. I don’t think you have to
believe there’s something wrong with somebody in
order to tolerate them. I can simply say your views
are different than mine, but I believe you have the right to express them and I’ll tolerate it. I don’t think there is
some objective moral truth that makes me right and you wrong. I just think that the nature of society is that we have different views
and we should be tolerant. It’s not about right and wrong to me. I think your question goes to something much more fundamental. Does society have the capacity to deal with long term cataclysmic problems that require international solutions? And I don’t think we know
the answer to that question. Because the planet’s never
faced the kind of challenge that global warming presents to it and climate change presents to it now. And whether we can deal with
that is going to just have phenomenal consequences
for our grandchildren and great grandchildren into the future. And unfortunately right
now we have the worst possible president and head of EPA for dealing with the
problem of climate change. The idea that we could have a president and head of EPA who deny
climate change is a problem rather than deal with the
problem of climate change when the clock is really ticking on this. – Well on one thing on climate change. I think there is a– – 30 seconds. – Sure. What we have to understand
is, is the climate changing? Yes, of course it is. But then when you have a measure
that you want to deal with, what is the suggested solution? That always entails a
cost benefit analysis. It always entails a cost benefit analysis. And where an awful of the disagreement now is on the cost benefit analysis. I don’t know, there are some Republicans who will deny climate change. But where I see a lot of the disagreement is where is the cost benefit? Where do we, how do we err
on the cost benefit analysis? Especially when you also have to consider that in the developing
world we want hundreds of millions of people to be blessed with the kind of material prosperity
that we are blessed with. And that involves the consumption and the production of energy at scale. And so those are things
that are very complicated. And those are things that
also involve human lives. Human lives are at stake in the ability to develop parts of the world
that are underdeveloped. And so that’s something that I often don’t hear people wrestling
with sufficiently. – Well I think that’s
a good place to stop. Because that will be the next topic of our next conversation. Let’s thank our panelists. Thank you so much for giving
us the time to speak here. And I just want say as a student, as a student the purpose
of these conversations is to really inchoate hope
within the student body across the university and to really show that these conversations are possible. And a lot of people just don’t see these types of responsible
politics taking place. So thank you so much for a responsible and constructive discussion. – Yes, thank you.
– It’s been a pleasure. – Thank you.

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