Well Whiskey coming pain from power Line blog dot com and produced by Ricochet dot Com. This is the three Whiskey Happy Hour with your bartenders Steve Hayward, John You, and power Lines International Woman of Mystery Lucretia. I've gotta given let that whiskey float where you're being in loud, down and load. So, John, have you tried a double big Mac at McDonald's yet? I finally had my first one this week and I really liked it. Really.
What did you like about it? For Teddies? Yeah? More meat finally. I mean my knock on the big Mac has always been not enough meat and too much bread and other stuff, and you know it's tasted okay, but uh see, I was making my own already. I would get a big Mac and then like a double quarter pounder of cheese. Have you seen those? You know? Yeah? I have that. You just snack it, you just like slap it together like that. You take out that middle
bread bun. I don't know what that thing's doing there, and then you got four petties. I've been doing that for years. Steve, you're so by the times. We need to get started for real, Hi, everybody, it is in fact a three whiskey happy hour, although I'm tempted to call it this week the three whiskey rumpy hour because of all the craziness this
week. And I picked out three or four things for us to look at, starting with John, I'll throw to you if you've had a chance to read it, this Alabama case that has excited the left because well it's been the lead story on the network nightly news for the last three nights, the Alabama case declaring that in vitro embryos are persons. And it looks and this is an in kind contribution to the Democratic Party from the TV networks. Why
is that a surprise? But I actually read the case, or read the majority opinion from one of the justices, and I realized this is being completely misreported. Well why, Steve, why do you think? Well have you have you got a chance to get into it? Just looked at I mostly read the news stories. But oh, there's right there. The whole thing seems logical to me. I mean, I don't. I mean, it's just, uh, it isn't just just that's just it's just how federalism works.
Each state's allowed to draw when life begins for itself. Under the Dobbs decision. So why can't Alabama say life starts at conception? Well, okay, that's not quite correct. See uh no, this actually has very little or almost nothing to do with Dobbs. And here's why this is a peculiar case. It was not a criminal case. It's a civil lawsuit from actually two different couples who had some fertilized embryos at a clinic, then some and
it said that accidentally destroyed. Well, yeah, although it's by a criminal act, was somebody who broke into this room and was you know, I don't know. It sounds malicious and whatever. But the point is is they sue them under under old common law liability that you've destroyed our property. That's one claim, you destroyed our property and you owe us punited damages. The other claim was that, oh, by the way, these should be persons
under an old statue in Alabama, which sounds somewhat familiar. I'm trying to get the name of it here. See, that's the wrongful death of a minor act. That's the name of it. And look, I mean, I'm not an expert in homicide laws, but I do know from if I did just this week teach what's his name Blackstone's chapter on homicide to students that it's long been widely practiced that if an unborn child is killed in an assault on a woman or an expected mother, that the killed fetus can be charged
as a homicide by the criminal. So I don't see this. So the question here was, well, all right, how far back copy for a second, Steve, and just say that in this particular case, because you said you rightfully said it was a civil suit. This particular statute, the Alabama Wrongful Death of a Minor, allows parents of a deceased child to sue for punitive damages for their child's death. And if Alabama law holds it unborn
children are children, then it would apply therefore to these embryos. Well, well, let me read just the first two sentences of the analysis, because I think this pushes I mean, I first thought too, John, that this was, oh, they've gone full personhood under the fourteenth Amendment here, which you thought might happen under Dobbs. But here's how the analysis starts.
The parties to these cases have raised many difficult questions, including ones about the ethical status of extra uterine children, the application of the fourteenth Amendment of the United States Constitution to such children and the public policy implications of treating extra uterine children as human beings. But the Court today need not address these questions because, as explained below, the relevant and statutory text is clear the Wrongful Death
of a Minor Act applies on space to all unborn children without limitation. And you know, we go on from there and talk about it. But the point is this is a statutory construction case. It's not a constitutional case. And what they're saying is, look, there's a question here about whether there was an unwritten exception to the rule for extra uterine children that has unborn children outside the uterus at the time they're killed, like you know, partial to
inside the uterus at the time they're killed. Right. Well, I mean this the opinion of the main opinion of the majority, and there are several concurrences, and I think there's some trouble lurking in some of the concurrences that I think do try to use the personal argument and go further than the court's official opinion. But what they said is is you look, you know, from the sound of things from the scientists were not far away from when gestation
could take place entirely outside of the womb. And if we get to that position to deny that an embryo, a fertilized embryo, is not a human being, then are we going to say to be consistent that this person gets no legal protection even after they fully just stated. I mean, they raise some very interesting questions that cut decisively the other way from the way the press is spinning this. I can rant further it, but I'll stop there.
But I still think it is an implication of Dobbs, because I bet that before Dobs you could not have applied this statute to just a IVF, you know, fertilized egg, because the courts would have said, you are you know, defining you know, a viable life right because you're saying this is a child right, so you can't. I would thought before Dobs, under Row and Casey, the courts would have said, oh, a child can't
exist until you're viable, right, which was the Casey standard. And now you're because of Dobbs, a state can now say, okay, child can exist at the time of in vitro fertilization, and that's allowed by that's allowed by federalism under the dabs approach to federalism. Each state can define that differently, and John, in support of your point, it says here before analyzing the disagreement, it says, all, let's talk about the points of agreement.
All parties to these cases, like all members of this court agree that an unborn child is hold on, I just have child has a genetically unique human being whose life begins at fertilization and ends at death. The parties further agree that an on board child usually qualifies as a human life, human being, or person, as those words are ordinarily used or used in ordinary conversation in the text of the Alabama's Robe death statute. So they may not be
reaching the Fourteenth Amendment issue of what is a person. But according to this decision, every man of the court and both parties in the case agree that an unborn child is a child. Yeah, it seems to me that It seems to me that this decision is not possible until after Dobbs, because if
this were true before Dobbs. But you so, if this statute meant what you say it means, and the court saysn't what it means, then but three Dobs, you have a right to carry out an abortion, then you would have been committing murder according to this statue, or a wrongful death according to this statue. But the abortion doctor, the abortion doctors, and the woman would have a constitutional defense that they what they were doing was allowed under
Casey and Rowe. No, you know, I don't know. I mean, well, all right, the implications I think could be drawn in that direction. But this case doesn't involve an abortion. But the issue an abortion isn't abortion. The issue in abortion and is what really constitutes a human life, whether or not the Court was willing to go that far. And again it's it's the question John always asks us, do we need does the Fourteenth
Amendment grant personhood to an unborn child? And the court skips the Supreme Court skips around that question pretty well. Is just like the Court does here and tries to do some other things historical tradition and this and this and this. They never come out in Dobbs and say that a fetus isn't is a person deserving a protection by the state under the Fourteenth Amendment. Never this one gets closer, I think a little bit closer. They Yeah, they do make
a I see it now, I'm looking it up. They do make a reference to Dobbs, and know they cite Dobbs very early in the opinion. Now that I am, I think I missed it the first time that we caught Maya, I was a citation not to Dobbs, but not the Harvard case. Caught that on page sounds pretty Blackstone and everything. Yeah, yeah, I like all the Blackstone sites. Of course, I don't know. I mean, I think this highlights maybe the person to talk to about this
would be Hadley Arcis. Of course, maybe this highlights the incoherence and difficulties that everyone's been trying to avoid. And I think this majority opinion raises some of those difficulties or suggests them in a pretty interesting way. And everybody's hair is on fire. But maybe I'd like to ask a question of you guys. This is a as Steve pointed out, First of all, it's a civil case, and it is an exception. The case is about an exception
to a rule. What I really want to ask you, guys, is what about the long standing contradiction where in fact, it's not just Alabama Low, it's a law in most states that if you kill, if you harm a pregnant woman and kill her unborn child. You can in fact be tried with murder. That was the case before Dobbs. And I mean, what a huge, incredible contradiction it is to say that that can happen, but
that somehow the female herself can choose to end that child's life. And it's not I mean, because once they're born, you don't get to just kill your kid, right, So so murder's murder once a child is born. What creates the exception there? And it makes no sense, It's it's absolutely
inconsistent and hypocritical. Well, the way I reconcile it when I would, I mean, it's not what I study closely, but you know I teach abortion from time to time in class, and I thought the way to reconcile it was that if you had if the pregnant woman who was killed or the fetus was killed, the fetus was past the point of viability, that's murder the state because the Row doctrine was that the state has this right, has
this perior interest in the protecting the life of the fetus after viability. But I think I've just not looked at the cases. If there was a pregnant woman, and she was pregnant but pre viability so in the first trimester, and some murderer killed her or her fetus, could she still could he still be prosecuted for murder of the fetus even though it's not viable. Yeah, well, okay, probably very state to state. But what I will tell
you is that they don't prosecute a woman for partial birth abortion. They make it legal in some places. Well, so, what little I know is that the laws bury on this. I mean, there's I think there's some acknowledgment of that in this opinion here and there. But let me introduce another wrinkle to it, which is a lot of conservative politicians are rushing out to say, we need to fix the law to clarify this because we're for in
vitro fertilization. And there's some controversy about this, not because it's somehow unnatural necessarily, but it's the surrogate angle. But let's leave aside that the surrogacy question. But so a lot of pro lifers are foreign virtual fertilization. It brings us more babies. It's you know, it's it's it's it's pro life
for for couples that are having difficulty conceiving in the normal way. And so there is an interesting cross cutting confusion about what to think about this case and what should be done about it. Well, I think politically it's a mistake for yes, other states are the Republican party to agree with the policy implications of this decision. If it means, you know, IVF is going to be banned, I take it. I'm not an expert, but I take
it. Then, or to have a successful IVF treatments as they're done now, maybe technology will change it. Now you have to create several embryo yeah, right, and so then you implant, yeah, and then some you don't and some you destroy. Is that murder? Or is that wrongful death? And now and now it sounds like it is under the statute, And so you would have the effect of actually preventing i f F from working successfully if you took this decision and applied it to the IVF industry. I don't
see. Yeah, I don't know. I mean, I mean, my first pass all up, I might change my mind, is that at least you would immunize or limit a liability for retro fertilization clinics to simply gross By the way, one of the councils lawsuit is gross negligence, which I and so that's several different claims here. But I think you can ask a question. Yeah, go ahead. I didn't know, it's been a week. What I heard was that Alabama had stopped all individual fertilization practices as a result
of trying to figure out what this case actually meant. Did I hear the wrong thing? Well, though the state did not order them closed, it was the individ clinics because of the question of liability now have stopped any further. That's all I mean, that's a perfectly normal business response. But no, the state I heard barely something about it and didn't have time to run
it down. So I just want a clarification. So, well, yeah, if you hear someone say Alabama has shut down IVF clinics, if they mean Alabama, thus it's not state action, right, it just means the uh. And I totally get that, because you're suddenly in limbo and right, and and your insurance companies are anyway, you can see how the how this. But I Alabama is defining life as beginning as conception, then why wouldn't the destruction of IVF embryos be murder in Alabama. Yeah, body,
I mean, the logic seems very straightforward. I don't see how they get out of it. I saw in the pay I saw in the paper today that the Attorney General of Alabama is saying that we're not going to bring criminal prosecutions against IVF clinics. But then what he's reading in an exception and to their statute and their definition of life and their state constitution, that's not there.
Yeah, so I don't know. Again. My first pass is this is one of those cases where maybe Lucretia the shoes on the other foot here are charge against utopian liberals is they believe that you can have a human society without any tragic outcomes. Right, We've been saying that for forty years and essential element of human society, and here is an example of this cutting the other way. That's the best. This is the thing. This is not
like where you can play around with the words. I mean the state I'm reading it's in the decision that quotes the state constitution that says it is the public policy of this state to ensure the protection of the rights of the unborn child in all manner and measure lawful and appropriate. And it even directs the courts to interpret all laws to favor unborn children. Yeah, it's obviously how the Attorney general and the district attorneys down there can start running around and saying,
well, we're going to create an exception for IVF clinics. Yeah, yeah, this is Uh. I think you're I think you are quite right that even if the media we're reporting it more accurately, it still is politically damaging to the pro life cause. Probably. Well. I read also in the paper today that, like I think, almost every Republican candidate for a contested Senate seat has come out saying that they support iv IVF and not this
decision. And President President Trump he is still you still call him that. He said the same thing very forcefully on the campaign trail Friday. Yeah. But again, I mean, you're making too much of what the actual decision does. Uh. And so if you can't have a bit of prudence in the way this comes across. They're not alleging that that, you know, as in the course of a business practice, the clinic just destroyed a fertilized
embryo that they no longer needed. They're actually alleging something criminal took place, which they're now bringing punitive civil damages against. Right, you said criminal negligence, Steve, so Well, I guess you can say that the logical extension of that is to say that even if you allow an embryo to you know, to the temperature to go wrong and it is destroyed, however you want to put it, that that would be problematic. But I actually think that
this is a game. I don't think that this is a serious thing. In some ways. I think it's actually part of the whole, the larger trying to figure out what it means to protect unborn children. And I'm not sure that they may necessarily made the exact right decision, but I just think it's part of the skirmish. I don't think it's Does anybody really think it's a serious problem that people are going in and destroying embryos in fertility clinics.
I didn't. I never thought about it until this week, exactly exactly, So anyway, I think it's and of course the left is going to make the most about it. Yeah, yeah, well, all right, let's let's leave it there for now, right, all right, let's turn to one other legal topic before we get to some political topics. So John,
I'm gonna turn to you again first. I was dismayed this week when the Supreme Court denied cert on an appeal of the Thomas Jefferson Science School there in Virginia, which, for people don't know this is this is the school that very high public school, but it specialized when you had to apply to math and science strength the ads, we won't be surprised to learn heavily Asian over
the last couple of decades. And that didn't sit well with the new school, so they fiddled with things and did diversity and changed all that and kicked out half the agent students. They lost in the district court before the Harvard case. Then the circuit court reversed and said no, no, they can discriminate if they want, essentially is what they said. And the Supreme Court
denied cert on hearing the appeal. And I'm stunned at this because I would have thought after the Harvard case this would be a slam dunk case of a mop up operation like you saw after Brown versus Board in the fifties, But they denied. Sir John, do you know why you have time to pay attention to this. Are they waiting for something better, which seems hard to
me to imagine. I'm really disappointed too. I should disclose upfront that I'm on the board of the Pacific Legal Foundation and they were the lawyers representing the Asian student not just Asian students, but the student groups and parents that were
suing the school district here. So I'm very disappointed too. The only thing I can think of is this court probably take some note of what happened, as you said, Steve, after Brown, and after Brown, you might remember there was something called massive resistance, which I think is going on right
now in school districts and colleges and universities everywhere. And I think the Court, if it looked honestly at its history, would realize that they fought a hard war for ten years after Brown, and they didn't always succeed because they didn't have the support of the President and Congress behind them. And it wasn't really the until the passage of the Civil Rights Act of nineteen sixty four that you really see desegregation really start to get underway in the South. But I
find it really hard to square with what the Constitution should meet. They put it this way. But the lower court with the Fourth Circuit, the lower court here basically allowed was you can get away with racial discrimination as long as you do it in a way where the rules look facially neutral, where the rules don't talk about race, even if you have the intention. Because one thing the district judge found, he made, oh credible findings about what these
school board members were emailing and saying to each other. He just found it as obvious that they're acting against ccations. Yeah, that they're they're racists. Yeah. I remember reading the district court opinion. It was spectacularly good. Yeah, well yeah, I mean he just because I mean, the school board members were open about what they were doing, but they didn't write it
down into the law. This is what the Supreme Court said you couldn't do after Brown, because after Brown, the South, the Southern States did exactly this. They tried to think of every way they could to try to get around Brown bypass. So I still remember there was one state, it might have been Virginia, that just closed all the public schools. They said, yes, well, if we have to desagreate the bubbsles, then we're just going to privatize all schools. And the Court was like you, obviously we
know what you're up to. I think that's exactly what's going on now. So the only thing I can uh, only thing I can think of that might explain this is that the Court has so much politically on its plate. It's got all these Trump cases coming. It is trying to, you know, start killing off the administrative state. It's got a lot of federals and
cases. I bet what they want to do is let the country you live a year or two, a few years under the Harvard case, see what happens, see whether people will comply, and then if they don't, then pursue a kind of Brown too, you know, the implementation of Brown. But that they don't want to do it right away. I think they might say, is they would like a better case. You know, so often you look for what they call circuit splits, so they might want to see
other cases. Now. As a board member of PLF, we're not letting them get away with it. We're also representing a similar case in Boston evolving the famous school. Right, We're representing students out here with the famous Lowell
High School where Stephen Bryer to school. By the way, so we're trying to find every magnet school we can where you know, the school board is messing around with the missions to get the right racial balance again and sue so that eventually it will get back to the Supreme Court and they can't deny CIRT on all of those cases. Yeah, okay, now let me throw a red meat question into lucretia. Well, all right, comment. Sure,
So here's my problem with that, John. I don't just necessarily disagree with your analysis, but it just confirms what I often say, which is that Roberts cares about the integrity of the court and not the integrity of the constitution. He couldn't care less with the constitutions. You guys tried to convince me that this was one of those things that Roberts was really good at. But
if it looks like it's going to put the Court in hot water. I saw five or six different articles that said the reason that the Supreme Court denied CIRT was because they were you know, they didn't want any more backlash and they were just cowards. Basically, that was the thing it read me. Question I was going to ask you, do you think the intimidation campaign is working? And if it is then, how embarrassing because you know, quite
frankly, the Warren Court didn't let that stop them. I mean, there were you'll recall the billboards across the South and Peter o' warren, but they were also engaged in a massive, massive, uh you know, what would the word be, evolution of the constitutional interpretation. You know, those are the years following Brown where most of the very worst decisions, the Map versus
Ohio. I could go on and on and on about the terrible Warren decisions, but my point is it, I don't believe this entirely, but you've both heard this before, the trope that it was the Warren Court's moral leadership in Brown and the cases that follow it that actually made the Civil rights movement and the Civil Rights Act nineteen sixty four the Voting Rights Act of nineteen sixty five possible. Whether I believe that or not, let's take it at face
value. So what this is going to mean to everybody out there is that, yeah, maybe the Court said that, but they weren't really all that serious about it, And there is no moral force to the argument that people should be judged on the content of their character, not the color of their skin. That's the takeaway from this, and that's because Roberts is a coward at bottom. Well now, wait, okay, I won't dispute you on well I've learned better than to dispute you on your views. It only took
four votes. I mean, if the four other conservatives of the other five had wanted to do it, they could have heard it. So Roberts had to have at least a couple others going on and one at least yes. Yeah, okay, do in my math, right, yeahv one And that's
easy. It's either Kavanaugh or Amy Cony Barrett, both of whom have proven themselves, if not necessarily to agree with Roberts, to be susceptible to Roberts integrity of the court argument or the court shouldn't be appeared to be too political or as you put it to me, John, that moderating or balancing act. Okay, we decided Harvard this way last year. But yeah, we're
going to decide the Chevron case doctrine again. So maybe we need to just be squishy on this right now and save it for later because you know, well okay, let me also don't do that. Only conservatives do. Damn it. Yeah, okay, I don't want to let me ask you with John about another case they denied assert on this week, and I'm not sure PLF was of all in this, but they turned away to appeals of rent control, which, by the way, there's sort of fresh evidence of how
destructive rent control is with the collapse of a New York community bank. Never mind the details. I didn't but I didn't notice those cases. But this is something that PLF and the Our Group and other groups of pushing forward because I don't know how much people know about rent control. But there's a famous case from the end from nineteen forty four where the court upheld New York City rump rent control on the ground that it was an emergency measure justified by World
War Two. And this is still the authority that New York City is using even today to justify rent control. And so I mean, I think rent controls are taking I think like understanding. The state just comes in and says you are not allowed to charge what the market allows you to charge for rent, and so the idea that it's still justified on an emergency, I can't believe the court hasn't fixed us one too. I really do think this again.
Well, so, you know, the Court has been making advances in property rights cases right like PLF for example, has won ten cases in a row with the Supreme Courts, an incredible record. But I have to say they've been doing it on the outer boundaries. What they haven't done is strike at the core of the way we've allowed the government to really restrict our property rights, like things like rent control. That's where you would really or you
know, these very restrictive conditions on how you can develop your property. Yeah, that's I mean, they allow the you know, the Court has allowed the most egregious things that state and local governments do to be challenged and struck
down. But some of the core things they still have to get to, and I think, right control, I could see them saying rent control is something we got to get to and do a few more years of these property rights cases because that's like that would be politically, you know, that would be combustible if they struck down rent control, although I think it would be the right decision. Well, our favorite, our favorite justice did did issue a statement in this denial of sert saying, hey, look, we need
to take this on. Think the thing is John. I think Lucretia, you were sound like you're about to jump in and say something like what I'm going to say, which is I think they have feared taking a bold stroke because it would open up a can of worms and the Federal Court would be flooded with similar kinds of challenges to regulatory measures that restrict prices and conditions in trade. And my bring it on is what I say. I kind of
welcome that world, but they're afraid of that. I think that's that's always been the conventional wisdom of why they didn't reinvigorate the takings clause. I mean that they don't care about the Constitution and they don't understand the critical nature of the takings clause and why it exists. I mean the idea that you would equivocate and say, oh, well, practical considerations should take precedence over the I mean it's the takings clause is the central thing that protects property, the
right of property in our constitution. If you think it through, it's even more important in many ways than the Due Process clause because it speaks specifically to property and to the ownership of property and who rightfully owns it and the idea that the Supreme Court, other than Clarence Thomas, of course, doesn't understand the critical nature of that and isn't willing to stand up for it. It
just it further illustrates my point. They're just they're more committed to whatever view they have of their lofty place in society than they are to the Constitution. Sorry to say that, I agree with Lucretian on this, that the media exaggerates of the threat of originalism or it's an originalism dominated court. It's still
not. I mean, it's still people like Roberts and I think Kavanaugh, maybe Barrett too, I hope not, but I think Roberts and Kavanaugh they are trying to balance what the right answer is against what they think the political
pressures on the Court are. And right, like you say, if, as you say, Steve, if you were to strike down rent control, then the Court, which hasn't done since the thirties, would have to get into the business return to the business of saying is government regulation of economics gone too far to the point where has taken away not just starting to d right
to property. Remember, there's also contracts clause in the Constitution, which has been right out the new Deal. There's you know, there's you know, there's a there's a good case that uh, you know, individual economic liberties were originally on a par with political and civil liberties, which which is what Justice Thomas believes. Can I uh do a segue, and Steve stopped me if you if this really upsets your plan, But there's there is some similarity
to that and to that nonsense happening to Trump in in Manhattan. We well that is my next topic, but go ahead, okay, but do you see I mean, there has been a lot of really intelligent commentary about the fact that this is going to destroy business in New York. Why I was the first one out with that point on TV right after the decision. You I got Vinue, I got it from because I only listened to Fox when you're on it, John. But yeah, of course that's the point.
I mean, okay, right now, Trump is is the quintessential boogeyman to the to the New York elite. I get it. He's he is an extraordinary case. They're not going to go after everybody the way they go after Trump, the way they went after Trump's business. But at the same time, if you're you look at it, and you say, they're willing completely to abandon any principle, any commitment to the rule of law, any sense of fairness or justice, just to get to destroy a political enemy. What
happens when you become the political enemy. And I'm told, in addition to John's brilliant argument, that there are actually many businesses leaving New York and Delaware by that for that matter, because of the you know what happened in Delaware with the judge deciding that Elon Musk just got too much in compensation after he h you know, made billions and billions of dollars with his company. H the terms of the contract that gave him those bonuses had to be overturned because
somebody who also made a whole bunch of money had stock. I don't know, it's so stupid, but well here's the yes. Sorry, that's we'll be tied together this way, from the rent control to damages. I have
a particular form of the question I wanted to bring up. I think way back in nineteen fifty Milton Friedman and George Stigler wrote a famous pamphlet about rent control, saying it's the most well forruliable way to destroy housing in a city except for bombing by a form an enemy, which I've always stuck in my head. Look the Trump thing, three hundred and fifty five million dollars in damages. I guess that's it. I actually want to end it. Look
New York jury and politicized prosecution. I want to ask about another case that has it's well known, but I think he deserves more attention, and it's this libel case against ran Simberg and mark Stein in Washington. I don't know if you're following us, John mark Stein, you know you probably met him on an old National Review cruise, right, he's you know, he got sued for libel by Michael Mann, the famous climatologist who's a really nasty piece
of work. Yes, well, he's a real nasty piece. And by the way, Michael Man, I aw you a liar, don't get me? Yeah? So, and and uh what happened is is that uh, I think we are we joined in severally liable. I need to take out defamation insurance. Now, well, let me work backwards here, John. What happened is the uh, the jury ruled uh an awarded man one dollar in damages, Uh, compensatory damages and in Stein's case, a million dollars
in punitive damages. So hold that thought. The other defendant in the case, Ran Simberg, was also a rule to owe a dollar in compensatory damages, and I think it was one thousand dollars in punitive damages. Now, the odd thing is Simberg is the author of the most the most incendiary of the remarks about Man, which I'll repeat him for the listeners who don't know this. It was Man's the guy of the famous hockey stick and climate change.
He teaches at Penn State. And at the same time that that Jerry Sandusky guy got busted and fired for being a child molester and a predator. Ran Simberg wrote, Oh, you know, Michael Mann's at Penn State, and he molested the data about climate change every bit as much as Jerry Sandusky blested football player something like that. Okay, pretty wild thing to say, But the point is Mark Mark Stein went further in a substant critique but quoted
Simberg. So the point is, though, or several points one, I thought that there was some ratio now between compensatory damages and punitive damages a million to one seems completely out of wa Yeah, that's unconstitutional. They're going to lose that, of course. I mean that's what I was. Okay that that seems easy to me. It has to be camping more than I think the Supreme Court has. There's this famous case called BMW versus four. Yeah, this guy sued BMW for a paint scratch on his car, which you
couldn't even notice. I think it was he discovered it had been repainted and then sold to him, and he I think he won a few thousand dollars and then he won you know, millions and millions of punis. And the court said, now, I'm not sure I agree with this actually, but the court said that the due process clause. You know, it's not a surprise. I think that it was Justice O'Connor. I think it was the main motivator of this, you know, the one who, like Casey,
also under the due process clause. I think conservatives have a problem with this because the Court said, we're just going to say the due process clause requires period of damages to be no more than ten times the compensatory damages. And you're like, well, where did that come from? Well, does it seems right, But why is it due process clause require that there was no
historical showing that was the case. But anyway, that's the rule now, at least it is so far so that that award should be struck down by the Supreme by the federal courts at some point. Well at one point of clarification, wasn't the excessive finds clause also invoked in the pleadings in that case? I sort of vaguely remember that. I mean, I think that that's always been an idea that Peela. That's an alternate idea. Okay, that the excess of fines claus could be involved too. I know that Trump is
gonna appeal. His lawyers have already said they're going to appeal the three hundred and fifty million dollar judgment as an excessive fine. Those appeals, Oh sorry, I just want to ask John about appeals in all these cases, actually, because we talked about you know, I know so much about that case because John schooled me on it when it was first being litigated. So, but and we talked about appeals, and I asked you about the New York
Appellate Court, and you said they're pretty bad. But what's the basis if if Trump were to take it to the New York Appellate Court and they were not defined any kind of problem with the prosecutor. Some of the different avenues of appeal, I'm forgetting what they are now. I apologize a long week. Are any of those appealable from the New York Appellate Court the Supreme Court to the United States Supreme Court since it is a state law? Oh yeah, so this is that's what I want to ask. I mean, no,
we have whole courses about this problem. Honestly, it's but in this particular case. Yeah, no, So, but this is a common problem all the time, which is what happens when a state does something that you think is unconstitutional, and then it's done to you in state court, which is going to be unfriendly to you. How do you get over to federal court? And so usually this is interesting. You cannot go to a lower federal court. You have to go all the way up the state system,
and then you go to the US Supreme Court. And you know, if you think origin original, no, no, they just have they just have appellate jurisdiction. They just have they have discretionary jurisdiction. But it has to be a federal issue. So the problem for Trump here is that you know he's going to claim he was screwed over in areas which conservatives think are matters of state law, contract law, things like this, or you know,
generally not up to they're not considered federal issues. So this law is strange. It doesn't require there to be a victim. You don't have to show laws by any individual. But generally we allow states to define fraud and we allow states to define contract law. But you do have the right to go to the Supreme Court if you say it's gone so far that violates my constitutional
rights. So he can go to the Supreme US Supreme Court and appeal on the ground that this so Steve is saying it violates excessive fine clause or that it violates due process. That in fact, the reason I think it's interesting is maybe it's an excessive fine to punish someone when there's been no harm to any individual right like that could just my definition, be an excessivefying because you
didn't hurt anybody. That's never made it to the Supreme I don't think that's ever gotten to the Supreme Court. Is actually genuinely a really interesting issue. So the other just as an example, the common example most people I hope who listen to this are not familiar with, is being prosecuted. So when the state prosecutes you, it prosecutes you in state court for criminal law violations. And you would say, oh, my search and seizure rights are violated
or miranda rights are violated. You have to go all the way up the state court system and then appeal to the Supreme Court. Then maybe you could do something called habeas but that only applies to criminal prosecutions, and the courts are kind of unfriendly to those right now anyway. So this is a reflection
of our federalism. My question is back to this case. Specifically, my understanding correct me if I'm wrong, is that the only other time this law has ever been successfully prosecuted against someone, there actually was a case of fraud where there was in fact victims were in fact victim. So and it's a law that's been on the book since what nineteen eighty four, I want to say, I forget, but it's only ever been applied once before, and
in that case there was in fact a victim. At what point could any honest jurist. Look at this situation here, the nonsense coming out of that large black woman's mouth about she's going to get Trump this and that, and the nonsense about the the guy that likes to take pictures of himself nude, that pretends to be a judge, and oh, you mean, the whole thing is just it's whatever his name is. What's his name? You mean Trump's judge. Yeah, the judge in Trump's case. He takes pictures of
himself nude at the gym. He's a nasty old man. Please, But anyway, the guy is just awful. Never mind. But at what point, at what point does somebody look at this and say, maybe due process includes the fact that you actually have to be treated as an individual before the law and not the subject of some kind of political vendetta. I know that's not in the Constitution, but neither is innocent until proven guilty. It does seem to me that our founding fathers did not want to see our legal and
judicial system being used as a political weapon against political enemies. Yeah. Well, the version of the I was going to ask a version of that question, John, which was, look, Michael Mann chose Washington, d C. To bring his suit against mark Stein, and because I think he reckoned that that would be the most sympathetic jury to claim that these and in fact, his lawyer, a man's lawyer, in his closing argument, said, ah, you want to send a message to these climate deniers that they can't
be slandering scientists or something like that. The judge admonished him that that was an impermissible argument, but the jury heard it right as trials go, and that seems to and likewise with Trump's case, the obvious political motivation, lucretian mentions, and an unsympathetic jury in New York. I mean, I don't know. The Trump case is hard, and he's sort of a one off. In the case of mark Stein or the January sixth defendants, we can
go on a long list of these. It seems to me that there's a good argument that our friend Richard Samuelson makes that defendants ought to be able to succeed in a motion to have their venue move to some other place than Washington, DC, especially when there's a political angle to it because of the jury pool is ninety two per Democratic. How are you gonna scream, Oh my god, no, really, Oh good lord? I guess you're gonna put that now on the show notes because people are going to wonder why did Steve
and John's scream silenteously podcast? Yeah, I lost my train of thought with some kind of I don't know what is anyway, my question takes the point, and you know at that point we need to call halftime here and refill our whiskey glasses. I need to drink after that. I know that was horrible. I'm swilling Phil Logan tonight. What do you have? You got the little froug open there? John? Is that I do? I have Lafroy only ten years, so that's the best to get. Actually, yeah,
here it is. But just because I felt, yeah, since you were the moderator or the host, you wouldn't be able to fully sing Lafoug's praises tonight, so I decided to drink it instead for you. Well, I'm glad I picked something else. Lucreasy, you're having wine, I think you said, I am. I am, thank you, guys, I'm I'm the way. It's been way too tough of a week for me to get slashed on Scotch tonight. You guys would either you would destroy me or
I would destroy you. I'll just put it that way, and probably you would destroy me, which is why I decided not to drink scotch. Did you know that lafrou is a Gaelic word that means the beautiful hollow by the broad bay? I did not know that the label. Okay, all right, let's move on to some politics. Uh. Well, you know, the legal things were going to be with us always. But one thing that might not be with us is the latest rankings of the presidents from political scientists,
rounded up by the American Political Science Association. And John, I think you know that. I mean, look, these rankings are simply a barometer of any logical bias and higher education that not much more needs to be said about that, because they they you know they Well go ahead, John, what were your observations? And I'll give you a couple of mind. Maybe can I make one before he actually gets through the No, Actually, you
guys should defend your profession first. I can't. But my actually, my first problem, never mind the ideological bias and all that other stuff, is what a stupid question to survey presidential scholars over? And I want John to say what that actual question is? They're not asking how did this person, how did this president fare in this category, this category, this category, et cetera, et cetera. They who's the greatest and who's the least?
Yeah, what a stupid I mean those were you asked? Kindergarteners what the heck? Right? And kindergarteners. I had a little friend who was a first grader once and she was given the assignment to write a letter to the president. I think at the time it was George Bush, George W. Bush. And so I still have the letter because I kept it. It's beautiful. She says, Hello, mister president. I don't know why anybody would want to be president. What a stupid job. I kind of feel
sorry for you. Good luck being president. Love Mary. Here for listeners, who I mean, I shouldn't I should describe too quickly. Here's the list, from best to worst. I'm not the whole list. I'm just giving you a few of them. First, say what the question was exactly what they asked. I don't have a handy. The question was, no,
this is it's silly, it said. So. First of all, they say, oh, this is so scientific, because we only can we only quizzed Scott in the American Political Science Association in the President's and Executive Politics section, like you got to organize yourself that way. Five hundred and twenty five respondents were invited to participate. Only one hundred and fifty four usable,
I don't know what that has a usable responses per received. And they asked each of those people to rank every president on what for their overall greatness from zero to one hundred. Zero's a failure, fifty average, one hundred equals great. Yeah, that's a question. Yeah, and so could answer that. I'm just gonna give you the first seven. So the top ten Americans love top ten lists, Well, all right, but we have to stop at seven. Okay, it's Lincoln, Franklin Roosevelt, George Washington, Theodore
Roosevelt, Thomas Jefferson, Harry Truman. Number seven, Barack Obama, who moved up from you know, he in right, he's ahead of Dwight and then eight, nine and ten is eyes an hour, Lyndon Johnson and John F. Kennedy. Seeing Kennedy down to ten kind of represents a general racial change and maybe from blowback from his nephew. Right now, but there's Barack Obahama ahead of you know Madison. Oh well, Donald Trump, of course, that's you know. I would love to have seen the raw scores they
got from all these people. But I mean, the thing that bugs me about this so for first, so I wrote a book about presidential Greatness and Failure about around twenty ten, and there was I started out by looking at the top ten list that was generated at that time by the Wall Street journal and the Federal Society, Right, yes, and that list actually aligned much
better. And they did first of all, they didn't just do political scientists, they did historians, right, because one of the things I found comic about this study is that the authors reported that the political scientists didn't know enough about James Polk to answer the question to rate him, right, they just said there was there. So they identified certain presidents that they got very poor responses. Nobody rated them because they didn't know enough about it. James Polk.
I mean anyway, so Mexican American War, etc. It's very different, I mean not extremely but like the if I remember the Federalist Wall Street Journalist did not have Obama of course at all. It didn't have Johnson and didn't have Kennedy, right, And I think that's so the presidents who were on that list that are missing, but I think actually represented what a lot of historians would have said. It included Eisenhower, Ray again and Jackson and
Polk. Yeah right, and that makes sense to me. I mean, you know, I just don't see how you could put Obama, Lyndon, Johnson, and Kenny. I mean, Johnson and Kennedy you could say were failed presidencies. In fact, oh yeah. In the case of Johnson the only thing they can say for him is the sixty four Civil Rights Act and the sixty five Voting Rights Act, maybe the you know, the whole War on poverty that they probably think was a massive six as because idiots. Yeah.
And and the thing is, usually Kennedy has been dropping in the polls because there we learned about him, the worse he was. Yeah, yeah, that's right. That's uh. And like, well it could be a
generational thing. Now. My way to retaliate is, uh, I think we should rank apsa president American Political Science Association presidents, because if nothing else, there is one person who is both the President of the United States and the president of the American Political Science Association, and that's Woodrow Wilson and he belongs to the bottom of both lists, right or Steve, you can make it a trifecta. And also at university presidents, since Wilson was one of
those too. All how Claude Dean Gay and the president of Penn would do on the rankings compared to these guys. Well, I by the way, by the way, he didn't mention you forgot to mention that. Where does Biden appear on this list? Oh wait, he's number fourteen? Yeah, I mean, how do you He's higher than Reagan's high than Grant, is
higher than Jackson, McKinley, and polk missus sane. Okay, So I just political to so a lot of the data that they actually do present on this, they don't give you any raw data, but they they break down some of these rankings by ideology and political affiliation. And so the conservative Republican what is it, middle of the road whatever they call it, moderate, democrat and liberal. And my argument and if that's the truth, then you
look at it. The numbers are stupid and unbelievable because Barack Obama still ends up like the god of the world for conservatives. You know that's not true.
But it might be true, because I have a hard time believing with how many one hundred and fifty nine surveys they usable surveys right, that there was an n large enough to be even statistically significant of either conservatives or Republicans in the American Political Science Association. And further, I'm going to tell you that a colleague of mine, who is in fact a conservative and a member of that presidential and executive whatever the heck it is, was not asked,
and he's an active member, was not asked asked to fill out this survey. He was not contacted. Imagine that he is a very conservative guy. So I'm guessing that their data are not only stupid kindergarten level stuff, but it's entirely flawed because they pretended they had conservatives on there and they didn't. Yeah, yeah, So do you know any conservatives at the APSA, Steve, Well, no, you know, I'm just looking over there on that
subgroup. Well, I'm looking over past presidents, and there had been some very good ones like James Q. Wilson, Samuel P. Huntington thirty years ago. Well, that's right. I was just about to say that Aaron Woldowski in nineteen eighty five. Right, Actually a conservative said, we don't have this in law. Why do you guys even care about these as anociation? Don't? So the readers should, the listeners should know that. The reason that I raised this originally was because is we're going to have a new
feature that Steve's can introduce. Yeah, whatever that features. This was my proposal was to make fun of this. Minds really interesting, John, And I think you'll think so. So then I'll lock it just to get back at you. So that's fine, you can knock away, but it's very interesting because, let me tell them, listen, is what we're doing. Yeah, yeah, yeah, we're doing an article of the week, a bad one, right, right, And you want to go first? You
want to go first, Lucretia, Well, actually John went first. That was I already went. I already went. This was going second because I think John at least to find this interesting. So today on MSNBC's written whatever they call it, Paul Waldman writes an article doing it. I didn't put the title down, but it was something like we don't elect a president, we elect of Roqua. Not quite that, but something along the lines.
In other words, his whole point is everything that we say, John, everything we say that it doesn't really matter who you elect as president, because
what matters is the vast bureaucracy that backs him up. And his argument begins with the student loan forgiven, the latest one point two billion student loan forgiveness of Biden's and talking about how you know this is the thing that could save Biden's presidency, but not because of the way people think about it, because this isn't a brilliant move on Biden's part, because Elizabeth Warren or Bernie Sanders
would do much the same thing. This is because in the Department of Education there's a whole bunch of really clever, progressive people who know what's good for the country and have been putting together this program. And so please understand, it doesn't matter if Biden is a senile old man. As long as we can keep Biden in office, we keep the entire progressive bureaucracy in office. And it's okay to vote for Biden even though he's getting really, really old
and senile. And the most important thing we need to understand is, yeah, sure, some presidents. Presidents from time to time, they kind of set direction, especially things like foreign policy. But let's be honest, what you really like about Biden was all the great progressive judges he put in place and the progressive things, you know, and he goes on and on. You know that at the EPA they don't turn away advocates and they care about
the environment. But if we get I actually have to read this part, if we get Trump, if we get Trump in office. In contrast, another Donald Trump term will not only produce all the terrible outcomes of any Republican presidency, but an entirely separate and utterly horrifying set of consequences unique to Trump
and the extremists who surround him. The widely docum minute goals of Project twenty twenty five demonstrate how much the dangers of another Trump presidency lie not only in his own delusions, extensive and growing as they are, but in the increasingly detailed plans of those who would staff his White House. So what this guy's admitting first of all is everything we've said it doesn't really matter, but Trump might Trump might matter. And then then he's in this the last part of
it. And I'll do this very very quickly. Let you guys comment, is he says, I get it if you know, Biden's only real hope of winning election is to to campaign on how bad Trump is, and you the danger of doing that is that if you're gonna concentrate on Trump the personality, then people are going to turn around and try to concentrate on Biden the senile, corrupt, old pedophile. He doesn't actually say that, that's my little editorialism, But the point is that at the end he can't really quite
decide what to do. But what he wants to say is every good thing you think that Biden did, he didn't really do. It's just because we had that Democrat guy in the White House that all of the great people throughout the bureaucracy were able to fundamentally transform our society, which is well, isn't that the mirror view of what we've been saying in this podcast? Right? I mean, what's the main point of John Marini for forty fifty years now
is that the permanent bureaucracy is the partisan instrument of the Democratic Party. And why don't Republicans ever say that directly? Like I just did. I don't know why, but he can find out and admits it. And yeah, that, by the way, seems to be a new talking point. I've seen two or three versions of that argument in the last ten days or so, and I think it's really really quite striking that they have no awareness of
what it is admitting. The clever thing about it that strikes me from Lucretia's description is that's turned into a justification for allowing someone who's not mentally capable of handling the off right. It's a the strange defense of Biden. Yeah, it's about all though, but but you know, so the fact that democratic presidents also have been frustrated by bureaucracy too, right, and so you know
that's the that's what the president. That's part of the president's power that makes the president important feature of our government is that he has the power to stop the bureaucracy from doing things right. That's part of the part of things that he does. But I think, as we've talked about, democrats have less but I mean less less less problem doing that. Let me just read you. I agree. This is the way he kind of tries to walk a
really thin line. He says, depersonalizing the campaign away from Biden is no easy task. We are all prone to seeing politics through the individuals who drive events. It's why not wait, it's igh. Non Fiction authors write books with characters in scare quotes, and journalists build their stories around what are sometimes called exemplars, individual people whose stories provide the vehicle to explain it's so stupid.
In other words, this is really a journalistic thing. This is a narrative, and all we have to do is kind of just slightly turn the narrative toward Trump and a little bit away from Biden, but back to what the great things Biden's bureaucracy will do, because Trump will come in and just destroy that bureaucracy, and he says it may not be possible to get them
to think about Donald Trump and not think about Biden. So then we have to go back to the great things that Biden did and he's not getting credit for. Okay, yeah, I'm done because I just think the whole thing is funny, and like you say, admitting to it, John, actually
admitting that's the amazing thing. All right. My article of my article of the week is a call of I Caught I Wish I had, written by Carol Markowitz in The Great New York Post, and the headline is why is noting married people are happier and kids do better with married parents, so controversial.
The funny thing was, is, I was just going over with one only classes this week the way Thomas Aquinas talks about the importance of families, and I said, now, you don't need Thomas Aquinas, or if you don't believe him, just look at the social science data, which is overwhelming.
And so she makes reference to two brand new books, one by Brad Wilcox called Get Married, and I forget the subtitle that it's about all the data he's assembled that shows why married people are happier, why I married, religious people are happier, why kids grew up in two parent homes much lower rates of poverty, crime, and all the other problems that come along with it. The other books she mentioned is actually a little more interesting in some
ways. You know, Brad Wilcox is a conservative at UVA and at AEI. The other book that's just out is by a professor who I think is a liberal at the University of Maryland named Melissa Kearney, and the main title is The Two Parent Privilege, and the subtitles something about you know why I children go up to two parent households do better and so forth. And she has been telling the story about how she was urged by her colleagues at the
University of Maryland not to publish the book. Why I think we know why the left hates families. They're dedicated to Well, you go through the whole diagnosis of it. But it is a curious thing that for people who've been saying for fifty years we should follow the science, and especially social science findings.
And when you have such robust findings on the benefits of intact families for the two people who are married and for their kids, that nowadays that goes against the left favorite narrative and you have to destroy it and instead Mark Witz points out, and Mark Judge does also in the Washington Examiner, what's the New York Times doing right now? They're doing a whole series of articles on the greatness of polyamory, you know people, and of this currenty woman.
She got reviewed in the Washington Post saying she wasn't open to exploring other possible also arrangements people in an enter into these days. That's how deeply dug in the left is on I don't want sorry what I just I don't want you necessarily to present this as a a sudden kind of discovery or sudden kind of social science fact. I mean, that's the thing that got Charles Murray in
trouble in the Bell curve. Everybody talks about the IQ tests and that sort of thing, but the central point of the Bell curve is that, controlling for all other variables, the number one independent variable that predicts material comfort. I don't think you used success material comfort and whatever measurable thing there is a
happiness. The number one independent variable is being married. It supersedes race, it supersedes socioeconomic status, it supersedes everything being made buried in a stable household. A longitude will say something like twenty thousand young men who were followed for a period of fifteen something years, and that was it being married. Can I tell story? Workshop story? So I was at a workshop at Berkeley and the presenter gave a paper about why marriage was a classic Berkeley thing.
Marriage was the social construct imposed by an oppressive legal system on the poor. Yeah, And so I raised my hand. I hadn't been to a workshop. I've been away in Washington for a while, and I came back and I was like, oh, no. So I raised my hand. I said, well, but you know, you're trying to help minorities and inner cities, and yet you are arguing against the single thing we know will bring
those minorities and inner cities out of poverty. Ooh right. Everyone looked like I was interird in the punch It was like the turn in the punch bow. It was like, look, I thought it was sort of. I was like, you're you're giving people advice, and I think, isn't that Charles Murray's point and coming apart is that all the people who say these things that Lucretia is reporting, actually college graduates are like eighty five percent married.
I'm sure professors are married at a very high rate there. They don't take any of the advice that they preach, right, they don't practice what they preach. Yeah, yeah, that's that's Charles's summary is that he wishes that the elites who live in Belmont would preach what they practice, which I think is great. Yeah, yeah, that's right. All right, we have as usual gone along. Do you have some bad bee things for us?
Lucretia. It has been a great week for those guys. But it was a great week, but We didn't necessarily discuss all of the right the social the social trends that led to some of the better ones, but i'll give
it, I'll give it a few. We didn't even discuss the fact that Big Fanny Willis was probably not entirely telling the truth if you actually believe sell location data, cell tower location data, because it turns out that for some reason, a cell phone owned by her, that that incredibly talented and experienced prosecutor that she brought on in the Trump case had actually been at her house. What a lot fifty Yeah, a lot in the years prior to being
appointed to that position anyway. But so I do want to get that out there, just in case anybody missed it. Letitia James sees its, Mara Lago sells it for seven hundred and forty million. It's probably right. Yeah. Another one that we didn't discuss at all was the release of Google Gemini. Oh my god. Yes. Also Google Gemini is an AI much like chat GBT. It replaced Bard right barred. I don't know. This is another example of the things that John misses that I know, I miss this.
What is this? So what happens is it came out and you would. You would ask for it to give you. You'd ask about Abraham Lincoln and it would pop up with a picture of Abraham Lincoln as a black man. Yeah, the founding founders are all black. It turned up to be black. Why because it's been because unlike what some people think, AI has programmers who create its algorithms, and those algorithms sometimes are biased. In fact, they're always biased. Well, apparently there was a diversity plug in it.
Somehow all the answers had to emphasize diversity, and it's somehow tilted and squirted. Essentially everybody came out black. George Washington, I was in a Hamilton. It's just no, it's been a huge embarrassment this week for Google. So so a couple on that lines, now that you understand John, Google execs promised to do a better job of hiding their AI's racism, and
then excited Netflix writers turned to Google Gemini for show ideas. Well. There was one I don't know if it was the Babylon b but there was one that said, uh uh, Gemini finally produces a white guy when asked to produce a picture of Clarence Thomas. That was my next one. Oh sorry, I'm sorry. Gemini finally draws white Man after being prompted to generate Clarence Thomas. So, yeah, sorry, I see you kind of just had
to be there. I don't know if you guys know about the big network failure of AT and T. Oh yeah, I actually have a Yeah, why is it my cell phone working? So here's here's the Babylon be's take on it. AT and T customers unaware of network outage since they're used to not having cells signal anyway? Wasn't that through? That's true? That is true anyway? Yeah, actually that's true of me, very true. Trump is the greatest set to America, says man over seeing invasion of America.
And of course you get the point. All Right, I'm done. Did Camel say anything not worthy? This week? John? Remember you're announce it. We're replacing the commalism with the new feature about articles. Oh well, I thought, okay, well good enough. Well then let's get out because we're really long here tonight. Okay, go ahead, John, all right, always drink your whiskey, meat, Let's go Brandon and Steve. Uh that's my news. Next week, game by seven and eight, losing way
wellies and sunflower seeds, drinking lots of carriage. Jesus still get over raised, but it's not heav These wands are cruel dreams, some kind of sensuous treat non sacchini beata Jean Burger. We put a big warm bone and a huge tung of music, cheeseburger and paradise to them out all the fun your slide nine. Two particular nons imprecise, not just cheeseburger and paradise, hurt him out the old time sailor man. They need the same. Ricochet joined the conversation