By Hillsdale College Online Courses May 5, 2017
Dr. Larry Arnn, President of Hillsdale College, and Hugh Hewitt discuss Judge Michael Luttig's Commencement Address on the court and the politicization of the rule of law.
HH: It is the last radio hour of the week. That means it is time for the Hillsdale Dialogue. Each week, I sit down with Dr. Larry Arnn or one of his colleagues from Hillsdale College. All things Hillsdale collected at www.hillsdale.edu, including your opportunity to subscribe for free to Imprimis, its wonderful speech digest. All of the free courses, including those on the Constitution, and all of my conversations in these Hillsdale Dialogues are collected at www.hughforhillsdale.com. Dr. Arnn, a good Friday to you.
LA: And to you.
HH: I want to talk with you about a very important speech that is going to be given shortly, or maybe as we speak, by the Honorable J. Michael Luttig, the executive vice president and general counsel of the Boeing Company about the rule of law. And we will return to the Declaration of Independence next week. Before I do, though, last week, we agreed that House needed to pass a bill. They needed to. Now, they have. It’s a big win.
LA: They have. Yeah, it is. He squared the circle, and you can see now, it illuminates, because this bill is a, you know, moved one step toward the Freedom Caucus. And then of course, then all the trouble was to get what are called the moderates on board. And so it was a different, you know, it was, and what they did was found the sweet spot, and they got enough votes.
HH: And it goes to the Senate where it may not emerge looking anything like this, but that doesn’t matter. You and I are concerned with regular order that they get a good bill at the end to repair the failing health care system. And to do that, the Constitution provides a roadmap. And the next step in that roadmap is the Senate does its job.
LA: I think we should invite, Hugh, the New York Times to listen to this show for one hour and hear that point, because if you read the articles in the New York Times this morning, you will discover that they don’t seem to understand that.
HH: Yes, I’ve read a lot of commentary. It is not a problem limited to the New York Times. Apparently, most of American media has never read the Constitution.
LA: Yeah, and, or, you know, how it works, right? I mean, the point is, it’s not a novel thing for the House and the Senate to have a different opinion about the same subject, because they always do.
HH: They always do. Now there are two, I have a piece in the Washington Post this morning that says to my friends in the Senate, everybody shut up until McConnell comes up with a plan. We don’t need a thousand tweets. But there are two choices here for the Senator, for the Leader – to go small, to come up with a version of the American Health Care Act which is as close as can be gotten to the House version and send it to conference, or to go big, which is to walk across the aisle and say to Chuck Schumer, come let us reason together. You want a few things, you want some infrastructure, you want some immigration reform. I want a few things. I want a 350 ship Navy, I want free markets in health care, I want to repair this Obamacare mess. Let’s sit down with the President and the House and let’s go big. Which would you prefer that he do, small or big, Dr. Arnn?
LA: Well, I’d, first of all, the Senate, so in order of priority, they should go small and then big, if small means they need to pass a health care bill. They need to do it. But then big if you add to that list, and by the way, we want to return to the idea of the filibuster that has prevailed for most of American history. And if you won’t talk with us, that’s what we’re going to do. He should say that as part of the big thing, because Schumer, you know, he’s going to say they’ve upset the great, you know, traditions of the Senate, but that’s not true. The way the filibuster works today, and the reason Schumer is powerful today, is that it empowers each individual member to, you know, decide a lot of things that the whole body is supposed to decide. So if they qualified or redefined back to what it’s supposed to be, the filibuster, then Schumer would still be powerful, because there’s always an election coming. And so that’s right. If they would proceed to govern, then the Democrats, the opposition, would then understand that things are going to happen, let me try to get what I can get.
HH: Yeah, the grand bargain approach that John Boehner always pursued with the president, the last president, was never successful, because John Boehner never wanted conservative things, and President Obama always wanted more liberal and even, indeed, hard left things. And there was no grand bargain to be had. I am optimistic that perhaps there’s a laundry list of things that Democrats want which are not destructive of the republic that would allow us to repair a lot in the course of giving them that.
HH: I don’t, I’m not looking through rose-colored glasses. It just seems to me that McConnell is uniquely talented in this regard.
LA: If, you know, he has been, you know, the much-derided by conservatives leader of the Senate, got Gorsuch through, held all the votes back in the day, so no senator, not Olympia Snowe, not anybody, voted for Obamacare. No Republican did. All of that, he is effective, you know. And he’s done a lot of good things. And so I hope he’s about to do more.
HH: His book, though, the Long Game, is, yeah, the Long Game is a magnificent memoir, and also a look inside. And I just, I grow impatient with our colleagues in the Republican Party who are in the Senate who tweeted out immediate what they must have, instead of letting the leadership team lead. It’s an interesting concept. It’s sort of like Hillsdale College. Everybody’s got an opinion, but some opinions ought to be told to you, not publicly to the student body.
LA: Yeah. You know, we’re, it’s the end of the term, and we’re having finals today, and so the campus looks like a scene from the Walking Dead. They’ve all got dark circles under their eyes, and they walk with a kind of a hunch and a limp. But yeah, so you know, they’re still young and handsome and smart and all that, but we do, even at this time of year when we’re cranky, we do a fair job getting along with each other, because we think we’re supposed to.
HH: Yes, and it would be nice if they actually did that. Now let me turn. I sent to you a speech this week by J. Michael Luttig, who was on the 4th Circuit Court of Appeals for many years, one of my old colleagues in the White House Counsel days, a runner-up to be the chief justice of the United States Supreme Court to the Honorable John Roberts. They are friends, by the way. He is a former Supreme Court clerk for Warren Berger. He’s a former everything. And he’s down at the University of South Carolina Law School today giving a speech on the rule of law that includes this paragraph, and I’m going to read a few paragraphs of this over the course of the hour. He says, “It might not be overstatement to say that during your lifetime,” to these graduates from the University of South Carolina Law School, “this great nation of laws in which we are privileged to live will effectively decide whether we’ll live by the rule of law or whether it will live by the rule of politics, so all-consuming has become the politicization of our country, our institutions, and even our institutions of law. This assault has long been underway by persons and forces outside of our profession, but if we are honest with ourselves, we must acknowledge that the assault is being waged as well from within our ranks, and even by ourselves.” What do you make of that? And what do you make of the speech?
LA: Well, I’ll just interject. The first time I ever heard this man’s name was from the lips of Justice Thomas, who was telling me, Justice Thomas happens to love his clerks very much. And part of his purpose was to tell me that even people who know him well for a long time such as I don’t get to pick his clerks. He’s going to pick them, which I never proposed to do.
LA: But he said that he loved to get clerks from really great appellate judges, and he mentioned Mike Luttig, and he mentioned Edith Jones. And I thought those must be really special people.
LA: I don’t know Mike Luttig, but I do know Edith Jones well now, and very right about that. And so yeah, he, and this is a general warning about something. And he distinguishes law and politics, and the rule of law and politics, and I would make that distinction a little differently than he does, but agree with it completely. And that’s, and so he’s telling these lawyers to be that because you know, if you lose the rule of law, then the only thing that will matter in the political system is strength. And if it becomes trial of strength on an ongoing and constant basis, then you’re living in a despotism.
HH: Now that’s well put. And he’s worried that we’re headed there.
LA: He does. And see, politics is the way laws get made, right? And so you can’t, in the end, finally just separate law and politics. But the law needs to be stable, and that places a limit on the intensity and the consequences of political debate. So if you respect the rule of law, and all the rule of law means, by the way, is that the law rules. That means not the man or the person or the one in charge or the strongest, or the many weakest who join together to become the strongest. The law, the common product of the best, deliberate thinking of a free people that becomes stable over time, that’s the rule of law.
HH: And we’ll talk more about that and why it is the subject of concern to Judge Luttig and others when we return to the Hillsdale Dialogue. Don’t go anywhere. Dr. Arnn and I will be back after the break.
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HH: Dr. Arnn, married as you are to an English woman, I know you follow English politics closely. You were a resident of that country for many years as you worked with Sir Martin Gilbert on the Churchill biography. They’re holding elections there. They’re called council elections. They’re sort of a vast number of county commissioner and city council, mayoral things. And Labour’s getting walloped. They’re getting crushed from north to south and east to west, UKIP not doing so well, either. The Conservatives are everywhere ascendant. It appears as though Brexit has really caught the imagination of the British people.
LA: Well, isn’t it amazing? And you know what’s funny is Theresa May, the prime minister who called this election early, didn’t have to call it, she was against, she was in the Remain camp. She was against Brexit. And then, there was a guy I thought was going to be the, succeed David Cameron, a guy named Michael Gove, and he was a big Brexit guy. And Cameron and May were not. And she beat him, and I thought that might be bad. But then watch her go, boy. She’s really doing it. She’s taken that thing on, and the reason UKIP has faded is because she’s taken their issue. They’re going to do it. And so…
HH: Yeah, they are going to do it. And I now have to, I have to quote with great caution a story from RT, which is a Russian news service, and usually just a propaganda arm of Putin. And I don’t put much credit in it. But this appears to be a direct quote, and so I’m going to quote it to you. The war of words continued between London and Brussels on Friday with European Commission President Jean-Claude Juncker saying he would stop speaking English because it is losing importance. The dig came as Juncker prepared to give a speech in French on Friday morning. Slowly but surely, English is losing importance, he joked, according to RT. And again, it’s RT. Take it with a grain of salt. The comment will surely not please the British Defence Secretary, Sir Michael Fallon who has called on commission officials to keep their views to themselves. Assume for the moment that RT is not lying, and that’s an assumption that we have to be careful about, what do you make of this, this European Union arrogance, Larry Arnn, if it’s true?
LA: Well, unless he was speaking in English when he said that, most people who hear of it will have to read a translation.
HH: It’s just the dumbest dang thing. They are so dumb in Brussels. They’re giving us, you know, Le Pen is actually making a fight of this, though I hope she loses, because the EU is attempting to overthrow the rule of the people.
LA: It, I’ve been working on this some lately, and I’ve come across a rich literature of big thinkers, including Pierre Manon, a French man, who has been writing about this for 25 years, that if you try to build an integration on the basis of a bureaucratic regulatory state, what you will get is separation and hostility first of people to that regulatory state, but second, then, to each other. And so you’re not going to get friendship, right? Why would they, why would this man undertake a slur? You know, everybody who knows anybody who’s French or has been to France knows don’t make fun of the French language, although I just did it, right? But I did it in retaliation.
HH: You were provoked.
LA: I was provoked, right? But you don’t do that, right? It’s a beautiful language, and it’s an important language. And France is a very great nation. And so you know, at the moment, when the French made their peace with Hitler in 1940, Winston Churchill said good words about them. And he never failed to address the fact that they had you know, that they were a camp for the Nazis, because they were conquered, for a long time without saying that France will revive. So isn’t that the tone you use, right? And everybody in Europe, you know, the great nations of Europe have, you know, rend each other in twain many times, but on the other hand, also cooperated beautifully to produce a civilization. So why wouldn’t he take that tone?
HH: I don’t know. It’s inexplicable. We’ll return. We’re going to go back to Judge Luttig’s address being delivered as we speak, I think, in South Carolina.
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HH: We’re doing a series on the Declaration of Independence, but I’m departing for a week because an old friend of mine, Judge Michael Luttig, now the Honorable Michael Luttig, he’s the executive vice president and general counsel of the Boeing Company. He’s giving a commencement address this morning which I shared with Dr. Arnn, because I think it’s so important. And I read from it. “In the few minutes that I have this morning,” Judge Luttig says, “I want to focus on those institutions of government which are preeminently and Constitutionally responsible for the preservation of the rule of law.” He writes, “For years, our presidents, at least collectively, have cynically appointed to judicial positions not those who they are assured will uphold the law and are possessed of the Constitutional view of the proper role of the judiciary, but rather those who they are assured share their own political, social and policy views, and will enshrine those views in the Constitution once appointed. This in surrendered to their respective partisan political partisan demands, and of course, in abdication of their Constitutional obligation. Faithful adherence to the law and to the rule of law has been relegated to a lesser qualification for the office if, one must wonder, it remains a qualification at all.” He continues, “Our Congress must accept equal, if not greater, responsibility for the approaching politicization of our law, as we have seen repeatedly up to and including the most recent partisan spectacle which began over a year ago in an attempt to fill the seat of the last lion of the rule of law, and ended only recently in the same partisan spectacle with which it began. Congress now routinely demands that candidates for judicial office declare their views, social and political, issue by issue. And it withholds confirmation from those who do not share its own social policy and political views, and pledge to constitutionalize those views as a condition of confirmation to the federal bench.” Is he right, Larry Arnn?
LA: Yeah, very much. Also, I’m going to say your listeners should also hear you say what you think about this, because you’re a long time law professor, Hugh Hewitt. And you should tell them how you teach law students about the rule of law.
HH: I will, but first, I’m putting you on the hot seat.
LA: Okay, well in direct answer to your question, there are two things that go on, right? First of all, the Constitution is you know, without the amendments, 44,000 words long, something like that, and with them, another 7,000, maybe. And so it doesn’t cover every possible case. It provides a structure of government. That’s its chief purpose. And there are lots of specific provisions in it, of course, and they apply to specific questions that come up. And so my own view of the Constitution is that when you read it, if you’re a judge, some party comes before you and he says this law passed by Congress is subordinate to the Constitution. All the laws are. And this one violates the Constitution. How do you decide? Well, you read the specific provision. You read what it exactly says, and you understand that provision in the context of the structure of the Constitution, which includes its general aims. Now that doesn’t mean specific policy outcomes, except the ones that are necessary to the rule of law, like, for example, a great question, a general question to ask a judge is do you believe in constitutionalism that describes a limited government of enumerated powers, where the Constitution is superior to all other forms of law? Do you believe in that? That’s a really great question.
HH: That is a really great question. Now in response to your question to me, I teach my students two things. I teach them there’s a realism that I need to impart to you, which is how you will pass a bar exam, and what the Supreme Court thinks of itself, and the rulings that it has made. And there is an originalism as to how it ought to have been, and it ought not to be as complicated as we have made it, because the Constitution was actually ratified, and I always quote the speech of the farmer at the Massachusetts ratification convention saying I have read this document for myself. We have no lawyers in our town. We need no lawyers. And I like this document, and I understand it, and I approve of it. And I have always said Constitutional Law ought not to be that hard. It isn’t, it is, if you know liberty, it’s not that hard. But then I go on to teach them why over the course of 200 years, the Court has screwed this up. And they’ve screwed it up repeatedly by inventing a common law of the courts which ought to be relegated back to the legislatures, not to the agency, but to the Congress and the President. And I think that because everything has ended up in the courts, the courts inevitably become politicized, because a lot of legislators don’t want to make tough choices.
LA: That’s one of the, so very good, yeah, and that’s one of the points in this speech, I’ll bet you’re going to get to it, where he quotes Scalia about that, because if the judges say, like you know, a big question is abortion, right? And if you just go read Roe V. Wade, one of the things that you’re stuck with is Lewis Powell, is he the one who wrote that thing?
HH: Yeah, no, Blackmun.
LA: Blackmun wrote that thing, right? And the thing is, he doesn’t know anything anymore about that than I do.
LA: And I don’t know everything about it, or anything close to it, right? And so he’s not the world’s leading expert on when a human life in the process of incubation or gestation becomes a human life, right? He doesn’t know any more about that than I do. And that’s really a legislative matter, I think. And also, that kind of subject is chiefly a state matter under our Constitution. But he comes up with detailed rules. And it’s a farce.
HH: It’s a farce. It’s mindboggling.
HH: And in fact, they do it again and again and again. Back to the speech, I will save the Scalia quote, because you’re right, I want to quote that to you for after the break. But this, these four paragraphs are central to the Luttig thesis. “That this naked politicization of the judicial office inevitably leads to the naked politicization of the courts, and thereby of the law itself cannot be gain said. And of course, it has done just that. Where our Supreme Court followed in lockstep by our lower federal courts has not led the politicization of law itself, it has obliged those who have with decisions that are anymore barely disguised acts of raw political will. Increasingly, its judicial decisions are transparently more political result in search of legal reason than legal reason in support of legal and Constitutional result. And it escapes no one’s notice that we are supposed to be, that what are supposed to be decisions of law, which under a rule of law should more often than not be opinions of unanimity, are today more often than not opinions of fractious dissent, fractious dissent not just along the partisan party lines of the presidents who appointed them, but along the partisan political lines of the individual justices themselves.” You know what’s profound about that? They ought mostly be unanimous decisions, Dr. Arnn, because it isn’t that difficult.
LA: Yeah. Yeah, and you know, I think it’s true that most of the opinions of the Supreme Court today are unanimous. I think it’s an overwhelming majority. Somebody told me that. But the important ones are not, and important ones means the ones where the Court gets a chance to say some fundamental thing about public policy that everybody’s interested in. That’s where they are not unanimous, but they ought to be as unanimous there as they are in the cases where some corporation is regulated in some way and is it legal or not. And if you think about the motive of that, in part, isn’t it true that everybody knows, or many, many more people know the name of Anthony Kennedy now because he’s the swing vote?
LA: And then he writes these long things that don’t make a blind bit of sense. I mean, if you, if the purpose of the nation is for each person to define the meaning of his own existence, what possible sense can one make of the Declaration of Independence where the assertion is the king has violated what is in fact our identity and being? We are human, and we are all created equal in that respect, you see? And so that’s just the opposite. And where did he get that, you know? He must have got that in sophomore philosophy with a modern professor.
HH: And he got that, because the Court has moved there over 60 years. And right now, we are awaiting the decision of the Court in a case involving a playground in Missouri where a Lutheran Church applied for a grant, and they were ranked quite qualified to receive it, and because of a Blaine Amendment, which is unconstitutional, in my view, motivated as it is by anti-Catholicism, they were simply denied. And the State of Missouri said sorry, we’re not giving any money to church-run playgrounds. And it is nakedly and obviously a violation of the Free Exercise Clause. And it ought to be a 9-0 decision, and it will probably be a 5-4 decision, and it will be dependent upon what Anthony Kennedy thinks. That’s not constitutionalism.
LA: Yeah, and pray he thinks clear about that. It’s, you know, Trump signed that order yesterday on religious freedom, and I think what the, there are complaints about the order, because it doesn’t go far enough. But what I think is, I think Trump is trying to get us to a society in which everything is not a federal case, and which…
HH: Wouldn’t that be grand?
LA: Yeah, you know, shouldn’t, I mean, you know, first of all, I mean, I realize that it’s an essentially corrupting for, like would I ever let my children play on a Lutheran playground?
LA: I’m an Anglican. (laughing)
LA: What if it ruined them, you know? (laughing)
LA: I mean, sliding down to Lutheranism.
HH: You know, people don’t understand these doggone dialogues a bit, do they? (laughing)
HH: They’re, if they just tuned in for the first time, they will not get that at all. They’ll wonder what the, who are these guys? This sounds like car talk on NPR.
LA: (laughing) These are high Constitutional principles we’re talking about here. (laughing)
HH: That slide to Lutheranism. And you know, the poor Lutheran who just turned in is upset. He probably thought he walked in to some anti-Christian Lutheran…(laughing)
HH: You’ve got to always worry about the person who just got in their car, Dr. Arnn.
LA: I know. I’m not in the radio business. You are. You sort that out.
HH: I’ve got tears in my eyes thinking about the poor Lutheran pastor who just got in the car and caught that the president of Hillsdale College (laughing)
HH: You know, he’s, as Duane just said, that Lutheran pastor is looking for a door to knock on. I had it on good authority that a justice of the Minnesota Supreme Court by the name of Anderson is quite the good Lutheran theologian, and he may now be headed in his car to Michigan.
LA: (laughing) Well, he should stop and play in the Lutheran playground.
HH: I agree. He’s got to go to Missouri. But that’s been closed, I think, by the state. That is, and we’re laughing, because it’s absurd, right?
HH: Everything is absurd about this Court, and that’s what I think Luttig is very upset about this. The judge is right to be upset, because it is just absurd. We’ll come back from break. We’ll continue this. We’ll get back on the beam. When you fall off the beam and you get tears in your eyes, you’ve got to get back on the beam.
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HH: And the last part of it I wish to get Dr. Arnn’s commentary on is this paragraph, which you alluded to earlier, Dr. Arnn. “Commenting on the mutually reinforcing effort effects of the politicization of the appointment process, and the ever-increasing politicization of the judiciary and the rule of law, the late Justice Scalia lamented in almost resignation that perhaps the confirmation process has become what it ought to be, that is if the courts in the end are to be mere instruments of politics, than as Constitutionally intended mere interpreters of laws.” Is Scalia’s resignation right? Or ought we to resist that?
LA: Well, Scalia, you know, in his life, resisted it all his life, so he was right by example. And Luttig is right in this speech, because he ends with an imperative appeal that it doesn’t have to be this way, need not be thus, he says towards the end. But make the contrast, right, what Scalia wishes and what we have today. What a confirmation should be an argument about, and a spirited argument about is the meaning of the Constitution, and how one goes about understanding it. And it should not then be an art, like Gorsuch was a model. That guy is so smart, it’s just scary how good that guy is.
LA: And he was able, deftly, nimbly, beautifully, to explain and distinguish what a judge does and what he doesn’t do. And what the judge does is look at the law and look at the Constitution, and decide first on the basis of the Constitution, and if the law is Constitutional, and second, on the basis of the law. And his opinion about the subject matter is irrelevant in almost all cases, right?
HH: And I want to quote, because I don’t want people to think that Judge Luttig left people despairing. He did indeed say graduates, it need not be thus. As lawyers now education and trained in the rule of law by this great law school, I challenge and entreat you today to commit yourselves to the law and to the rule of law. Pledge yourself to these and to their protection and preservation. Vow instead that it will be the law that triumphs over politics, and not politics that triumphs over the rule of law. If you do this, you have risen to what is now your high calling. Dr. Arnn, I know that Democrats are shaking their fist at the radio right now and saying but you politicized the Scalia seat, the appointment process. My response to that is because it was a referendum on the very process itself that was answered in the affirmative for non-politicization by the election of Trump and the nomination of Gorsuch. How do you respond, though, to their criticism that the politicization Luttig decries, in fact mentions in this speech, began with the decision of Leader McConnell to hold the seat vacant?
LA: Well, I would try to sort out the equivocation on the term politics or politicization. The Constitution is made by a political process, and it is a high, the second-highest political statement of the American people, and the highest such statement in the law. It is the ultimate conclusion and statement of how our politics are to proceed. On that level, of course, the Constitution is a supreme political document. But if then you start trying to wield or shape that document according to lower things like what you want to do about playgrounds, then, of course, the low is controlling the high. And what Gorsuch was great at, and Scalia was great at, and Justice Thomas is great at, sublime at, even, is explaining this difference between the low and the high. And we should all understand that the Constitution provides us a way to talk about things without shooting each other, and even reach decisions about them without doing that. And so we all have an interest in protecting that. And that way also places limits on what we may do to and for each other through politics, because many things in our society are supposed to be reserved from politics. It is a liberal society. The biggest thing the Constitution protects is only stated negatively in it, and that is the government can’t do everything.
HH: Correct. Correct. On that note, Dr. Larry Arnn, thank you so much. We will be back next week, and we’re going to return to the indictment of the king as it is laid out in the Declaration of Independence. Larry Arnn, thank you. All of the Hillsdale Dialogues available at www.hughforhillsdale.com. All things Hillsdale available at www.hillsdale.edu. And we will be back next week doing the same thing.