I’m back. I’m nationwide.

It turns out that my forced retirement from public broadcasting punditry (because the show on which I was punditing concluded) lasted a month and a half.

I will be appearing on National Public Radio’s “1A” show today discussing “Wisconsin’s Legacy” and the book The Fall of Wisconsin: The Conservative Conquest of a Progressive Bastion and the Future of American Politics by Dan Kauffman.

The show calls itself “a show about a changing America. Host Joshua Johnson convenes a daily conversation about the most important issues of our time. 1A brings context and insight to stories unfolding across the country and the world. With a name inspired by the First Amendment, the show celebrates free speech and the power of the spoken word.”

I’m all for that. (Which is why I appear on every show, friendly audience or not, I’m invited to, other than the fact that I am a media ho.) In fact, I think every newspaper should change the name of its opinion page from “Opinion” or “Perspectives” or something generic like that to “The First Amendment.” (Of course, then they would actually have to respect the First Amendment, which is not currently the case for such newspapers as the New York Times.)

What is the book about? Glad you asked!

During the 20th century, Wisconsin was the embodiment of what U.S. Supreme Court Justice Louis Brandeis called a “laboratory of democracy” — an experiment in social and economic innovation, and a prospective blueprint for other states.

A bastion of progressive values, Wisconsin created the first workers’ compensation program, a progressive state income tax, stricter child labor laws, and the first unemployment insurance program. Much of FDR’s New Deal was even authored by Wisconsin natives.

But in recent years, the state has undergone a major political shift. Republicans secured the [state] government in 2010, and in the 2016 presidential election, the state went Republican for the first time in three decades.

How did Wisconsin go from electing Barack Obama in 2012 to Donald Trump in 2016? Dan Kaufman, author of “The Fall of Wisconsin,” assesses the state’s changing tides:

Wisconsin has gone from being a widely admired “laboratory of democracy” to a testing ground for national conservatives bent on remaking American politics. Its century-old progressive legacy has been dismantled in virtually every area: labor rights, environmental protection, voting rights, government transparency.

As Gov. Scott Walker campaigns for a third term, new polls indicate that public opinion of various economic and environmental conditions is low.

We’ll discuss how the changing political landscape has impacted life in Wisconsin — and vice versa — and what’s next for the once-progressive state.

The show originates from WAMU radio in Washington, D.C., which means I will be on a radio station in a place I’ve never been to, though as readers know that didn’t stop me from appearing on the BBC World Service earlier this year. Actually, since this is on NPR nationwide I will be on the air in a lot of places I’ve never been to. (I therefore should be nervous, I suppose.)

The show is on WAMU (88.5 FM for Washington-area listeners) from 10 a.m. to noon and 8 to 9 p.m. Eastern time. It’s on WPR from 1 to 3 p.m. Central time. Our discussion will be on WAMU live at 11 Eastern, 10 Central, and on WPR at 2 p.m. Central time, which means I guess I’ll be able to hear myself after I’m done talking.

As you might imagine — spoiler alert! — I will be taking an opposing view, or views, from the author and the third guest, a fellow Wisconsin Public Radio Week in Review alumnus who apparently suggested me for this. (I might start, perhaps, with questioning the term “once-progressive state,” which infers that most Wisconsinites bought everything the Progressives did.)



Presty the DJ for July 12

Today is the anniversary of the Rolling Stones’ first public performance, at the Marquee Club in London in 1962. They were known then as the “Rollin’ Stones,” and they had not recorded a song yet.

If you’re going to record just one song that gets on the charts, ending at number one would be preferable, whether in 1969, or in the year 2525:

Today in 1979 was one of the most bizarre moments in baseball history and/or radio station history:

Continue reading “Presty the DJ for July 12”

Look in the mirror, lefty

Investors Business Daily:

When not worrying that its increasingly hostile anti-Trump antics might backfire on Democrats, the left is busy blaming President Trump’s own incivility for the ferocity of their attacks. But this is exactly how the left treats all conservatives, rough-hewn or not.

After a week in which a celebrity called for the abduction of the president’s young son, a restaurant kicked out Trump’s spokesman, and a mob harassed the Homeland Security secretary, Democrats are starting to wonder if their “resistance” is getting out of hand — while refusing to take any blame for it.

House Minority Leader Nancy Pelosi managed to perfectly encapsulate this when she said “Trump’s daily lack of civility has provoked responses that are predictable but unacceptable.”

The blame-Trump-first meme has been catching on fast.

Writing in the Washington Post, Paul Waldman complains about having “to hear, in the era of Trump, that liberals are the ones being ‘uncivil’…. You’ve got to be kidding me.”

CNN’s Byron Wolf says today’s lack of civility “should surprise exactly no one in a time when the president uses the imagery of invaders and infestation to describe immigrants.”

Writing in USA Today, Jason Sattler argues that we should “stop defending decorum and do something about Donald Trump,” who, Sattler says, is “running a propaganda campaign against immigrants that incites comparisons to Hitler’s early attacks on Jews.”

But the suggestion that things would be better and tempers cooler if Trump weren’t so abrasive is utterly and completely false.

Consider the “civility” shown by Democrats toward the eminently civil “compassionate conservative” President Bush.

Protesters regularly carried signs saying things like “Save Mother Earth, Kill Bush,” “Hang Bush for War Crimes,” “Bush=Satan,” “Bush is the only Dope worth Shooting.” They burned Bush and other administration officials in effigy countless times.

Jonathan Chait wrote a 3,600-word word piece for the New Republic in 2003 on “the case for Bush hatred.” In it, he admitted that “I have friends who … describe his existence as a constant oppressive force in their daily psyche.”

Nobel Peace Prize winner Betty Williams gave a speech at a women’s peace conference in Dallas in 2007 declaring that “right now, I could kill George Bush.” The audience laughed, and she won praise for her “bravery.”

Pollster Geoff Garin told The New York Times that Bush hatred was “as strong as anything I’ve experienced in 25 years now of polling.”

The winning film at a 2006 Toronto film festival was a movie — Death of a President — that realistically depicted Bush’s assassination.

The left regularly compared Bush to Hitler, just as they are now with Trump.

Playwright Harold Pinter said that “the Bush administration is the most dangerous force that has ever existed. It is more dangerous than Nazi Germany.”

Harry Belafonte called Bush “the greatest terrorist in the world.”

Writing in Time magazine in 2003 — just two years after Bush took office — Charles Krauthammer (a trained psychiatrist) noted that “Democrats are seized with a loathing for President Bush — a contempt and disdain giving way to a hatred that is near pathological.” He coined a phrase to describe it: “Bush derangement syndrome.”

What was the left’s excuse back then for its gleeful indulgence in hatred and incivility toward friendly George Bush? Simple: They didn’t like his policies.

That’s always been the left’s response to politicians they don’t agree with: Harass, attack, belittle, demean, threaten, scream … and repeat. Unlike Republicans, however, the left never gets called on its hate-mongering.

Sure, Trump’s barbed rhetoric and insults fan the flames of today’s incivility. And like most people, we’d prefer that he adopt a more presidential tone.

But even if Trump had the temperament of Mister Rogers, Trump derangement syndrome would be just as virulent and widespread as it is today.

Not because of anything Trump has said or tweeted. But because he’s successfully enacting a conservative agenda that the left doesn’t like, and will do anything to stop. Anything, that is, except engage in a calm, reasonable debate.

You can tell the writer wasn’t around in the 1970s or 1980s and isn’t from Wisconsin. Otherwise the writer could have added similar deranged feelings about Richard Nixon, Ronald Reagan (called “Ronnie Raygun” on the UW campus) and Gov. Tommy Thompson. Derangement on the left is a feature, not a bug.

Presty the DJ for July 11

The number one single today in 1960 was the first, but not only, example of the caveman music genre:

Today in 1962, Joe Meek wrote “Telstar,” the first song about a satellite:

Today in 1964, the Beatles appeared live on (British) ABC-TV’s “Thank Your Lucky Stars.” The appearance was supposed to be taped, but a strike by studio technicians made that impossible. The band had just appeared at the northern England premiere of their movie “A Hard Day’s Night,” requiring them to get to London via plane and boat.

Continue reading “Presty the DJ for July 11”

The continuing trip to the next civil war

Steven Greenhut:

During the 2012 election, this writer was appalled by the loutish behavior displayed by incumbent Joe Biden in his vice presidential debate against GOP challenger Paul Ryan, as Biden smirked and interrupted his way through the contest. In fact, my outraged column argued that Biden’s behavior was “an affront to civility” because of its bullying nature. Civility doesn’t meaning rolling over, but it does mean behaving with a little decorum.

I laughed out loud after coming across that long-forgotten diatribe. It brought to mind a term from the late Daniel Patrick Moynihan of New York: “defining deviancy down.” Basically, the Democratic senator argued that as society becomes accustomed to deviancy, societal standards are lowered. What seemed outrageous yesterday, is accepted today. Life begins to resemble a game of limbo. How low can you go?

I’m not the first one to use that phrase in the current environment, but that six-year-old debate wouldn’t even be noteworthy today, given the antics of the current president and his foes. It’s pretty clear from social media that the president’s crudity and personal attacks are not a flaw in his presidency, but one of its high points. Many conservatives are thrilled to have someone who isn’t playing by Marquess of Queensbury rules.

Many leftists—including folks who have shouted down conservative speakers on college campuses—now argue that Donald Trump’s administration is such a fundamental threat to our democratic order that it’s OK to harass members of his administration. “(I)f you see anybody from that Cabinet in a restaurant, in a department store, at a gasoline station, you get out and you create a crowd,” said U.S. Rep. Maxine Waters, D-Los Angeles.

Although some Democrats castigated Waters, most people on both sides instinctively point to the other side as an example why it’s OK that “our” side did something uncivil. It even has a term: “whataboutism.” And conservative backers of Trump routinely chide “Never Trumpers” for trying to hold the president up to traditional standards of decency.

For example, former Republican Education Secretary William J. Bennett argued in 2016 that conservative Trump critics “suffer from a terrible case of moral superiority and put their own vanity and taste above the interest of the country.” After hearing those comments on Fox News, I knew that the battle over civility was lost. Bennett, after all, is author of “The Book of Virtues,” which sought to instill in young people some timeless principles.

The conservative National Review quoted Bennett’s previous words to shame him for those comments about moral superiority: “Good people—people of character and moral literacy—can be conservative, and good people can be liberal. We must not permit our disputes over thorny political questions to obscure the obligation we have to offer instruction to all our young people in the area in which we have, as a society, reached a consensus: namely, on the importance of good character, and some of its pervasive particulars.”

Now, that’s a sentiment with which I agree, but one that is out of favor. Even some religious leaders have so thoroughly embraced the president that they’ve let their moral voices atrophy. The same folks who told us that character is what really matters, perhaps only believed that to be true when it comes to Bill Clinton and other politicians they don’t like. That’s not a virtue. It’s hypocrisy.

But what about Hillary and the Left and the warriors of political correctness? So round and round we go. As I write this, by the way, I’m celebrating two major Supreme Court victories that came about largely because of Trump’s victory and his appointment of Neil Gorsuch to the U.S. Supreme Court. Last week, on 5-4 votes, the court tossed aside the requirement that public-sector workers pay union dues and invalidated a noxious California law that forced pro-life crisis pregnancy centers to provide pro-abortion information to their clients.

Both decisions uphold freedom of speech, which is a foundation of a peaceful and civil society. But why can’t we still criticize the president’s assault on other aspects of civil society? Some of his supporters argue that “politics is binary.” In other words, there are only going to be two real choices on any presidential ballot. But if that’s the case, then we always need to pick a side rather than maintain a consistent standard lest we abet our political enemies.

It’s easy to see where that kind of endless grudge match might lead. A new poll from Rasmussen Reports found that 31 percent of Americans believe that another civil war is likely in the next five years. We all see the anger and viciousness that has infected all manner of American discourse. I don’t believe a war is by any means likely, but I’m fearful of the kind of discourse we might find acceptable by the start of the next presidential election.

Freedom for conservative academics

James Wigderson:

Marquette University Political Science Professor John McAdams prevailed at the Wisconsin Supreme Court in his lawsuit against the university to get his job back. McAdams, represented by the Wisconsin Institute for Law & Liberty (WILL), has been fighting the university since 2014 after being suspended over a blog post criticizing an instructor in the philosophy department.

In a statement released shortly after the decision was announced, WILL President Rick Esenberg said the ruling was “a major blow for free speech.”

“Since the beginning, the only thing Professor McAdams wanted to do was to teach students without having to compromise his principles,” Esenberg said. “Yet Marquette refused to honor its promises of academic freedom and now, thanks to the Supreme Court, he will be able to teach again.”

Esenberg said “this is a major day for freedom.”

“It is our sincere hope that Marquette University appreciates and learns from this episode and takes care to guard free speech on campus,” Esenberg said.

However, while Marquette University has said it will comply with the order, the university does not sound like they have had a sudden conversion to supporting free speech following the Court’s decision.

“Academic freedom must include responsibility. Unfortunately, Marquette can’t undo the significant harm that he caused to the former student teacher’s academic career,” Marquette University said in a statement Friday. “We must, however, ensure that this doesn’t happen to another student. Marquette will continue to uphold its values and protect its students.”

In a 4-2 decision written by Justice Daniel Kelly, the Court said Marquette violated McAdams’ contractual guarantee of academic freedom:

The undisputed facts show that the University breached its contract with Dr. McAdams when it suspended him for engaging in activity protected by the contract’s guarantee of academic freedom. Therefore, we reverse the circuit court and remand this cause with instructions to enter judgment in favor of Dr. McAdams, conduct further proceedings to determine damages (which shall include back pay), and order the University to immediately reinstate Dr. McAdams with unimpaired rank, tenure, compensation, and benefits, as required by § 307.09 of the University’s Statutes on Faculty Appointment, Promotion and Tenure (the “Faculty Statutes”).

Chief Justice Patience Roggensack, Justice Rebecca Bradley, and Justice Michael Gableman joined Kelly in the majority. Justice Shirley Abrahamson and Justice Ann Walsh Bradley dissented.

The Court’s decision is a reversal of a decision by Milwaukee Circuit Court Judge David Hansher who ruled that precedent required him to defer to the university on disciplinary matters.

Addressing that question, Justice Kelly wrote:

We may question, and we do not defer. The University’s internal dispute resolution process is not a substitute for Dr. McAdams’ right to sue in our courts. The University’s internal process may serve it well as an informal means of resolving disputes, but as a replacement for litigation in our courts, it is structurally flawed.

McAdams was suspended indefinitely by the university in 2014 after a post on his blog, The Marquette Warrior, criticized philosophy instructor and graduate student Cheryl Abbate. In a recorded conversation, Abbate told a student at the Catholic university she would not allow discussion of viewpoints critical of same-sex marriage in her class.

When McAdams’ blog post about the incident went viral, Abbate said she received a number of harassing emails, and McAdams was suspended. Following an investigation, a faculty committee issued a report in January 2016 recommending unpaid suspension for McAdams through the fall 2016 semester.

However, Marquette University President Michael Lovell added extra requirements before McAdams could be reinstated. McAdams refused to comply, effectively ending his employment at Marquette, and he sued the university to get his job back.

While it was a conservative majority on the Court who decided in favor of McAdams, the academic freedom case sometimes cut across the normal political divisions. A number of liberal academics supported McAdams in the free speech case, while a Milwaukee business group, the Metropolitan Milwaukee Association of Commerce (MMAC), filed a brief in support of Marquette University. MMAC and Marquette University have a number of board members in common, and Marquette University is a member of The Business Council, a 501c3 affiliate of MMAC.

Justice Rebecca Bradley, in a concurring but separate opinion, answered the concerns of the business organization over an employer’s right to set work rules.

“The court received a variety of amicus briefs from private businesses concerned about the reverberations of this case on the private sector. Their fears are unfounded,” Bradley wrote. “University campuses inhabit a unique environment. The doctrine of academic freedom has no application within private enterprise, unless of course a private entity incorporates the doctrine into employee contracts. Marquette University, although a private institution, chose to guarantee academic freedom to McAdams in his contract.”

The Wall Street Journal adds:

The case stems from a blog post by Mr. McAdams about a graduate instructor who had told a Marquette student that opinions against same-sex marriage would not be tolerated in her ethics class. The university says Mr. McAdams proved himself unfit by naming the graduate instructor, Cheryl Abbate, and linking to her publicly available website in his post on the encounter, so it suspended him. Even after losing the case Friday, the university continues to accuse Mr. McAdams of having used his blog to intentionally expose “her name and contact information to a hostile audience that sent her vile and threatening messages.”

The court is categorical in rejecting this argument. “Our review of the blog post,” reads the majority opinion, “reveals that it makes no ad hominem attack on Instructor Abbate, nor does it invite readers to be uncivil to her, either explicitly or implicitly.” a private institution Marquette has the right to set its own standards for fitness, as well as to limit the speech of its employees. The difference here, as the Wisconsin Institute for Law and Liberty noted in its defense of Mr. McAdams, is that the professor’s contract promised he could not be punished for exercising academic freedom or exercising his rights under the Constitution.

As the court put it, the “undisputed facts show that the University breached its contract” with the professor. So the ruling orders Marquette “to immediately reinstate Dr. McAdams with unimpaired rank, tenure, compensation and benefits.” It also calls for “further proceedings to determine damages (which shall include back pay).” In short, it is a complete vindication for the professor.

From the start we urged Marquette to acknowledge its mistake and reach some accommodation with Mr. McAdams. In its statement responding to the decision, the school says it will comply with the court order but insists it was in the right. Apparently more than the students need instruction at Marquette.

Here comes the (next) judge

Donald Trump is expected to name his Supreme Court nominee today.

David French explores what kind of philosophy that nominee might have:

Years ago, when I was a young lawyer, I had an interesting conversation with a much older judge. He was a Democrat, an old-school liberal, and he said something revealing: “There’s the law, and then there’s what’s right. My job is to do what’s right.” Or, to put the philosophy in the words of one of my leftist law professors, “You determine the outcome first, then you do your reasoning.” Time after time, that’s exactly what Justice Anthony Kennedy appeared to do.

I can think of few better summaries of Kennedy’s jurisprudence — especially in the cases that fired his passion the most — than this infamous passage from Planned Parenthood v. Casey: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” As a statement of dorm-room philosophy, it’s mildly interesting. As the expression of a constitutional ideal, it’s wildly incoherent.

Looking at Trump’s list of 25 candidates (and reading the speculative “short lists”) to replace Kennedy, one thing seems certain: The moment the new nominee is confirmed, no matter who it is, the Supreme Court will grow appreciably more originalist. Look for fewer sweeping moral statements — like Kennedy’s declaration in Obergefell that “marriage responds to the universal fear that a lonely person might call out only to find no one there” — and more close textual and historical analyses of the Constitution.

No one should believe that any judge is entirely free of ideological bias, but there is a profound difference between judges who approach a legal conflict with the question, “What does the Constitution mean?” and those who instead ask, “What does justice demand?”

Any originalist would come to the court facing an immensely powerful administrative state and a social movement that increasingly places statutory or regulatory rights (like public-accommodation statutes or contraception mandates, to take two recent examples) in conflict with constitutional rights. Moreover, this same originalist will likely at some point have to face the immense confusion and uncertainty surrounding the scope of the Second Amendment. And he or she will have to decide claims asserted on the basis of judge-made civil liberties, most notably the right to abortion.

So, what can we reasonably expect?

First, when the sexual revolution collides with the First Amendment, expect to see the First Amendment win. That’s the way the conflict played out in NIFLA and Masterpiece Cakeshop, to take the two most prominent examples from the Court’s most recent term. A more solidly originalist court would likely have decided Masterpiece Cakeshop on broader free-expression grounds, would scoff at the very notion that the government could revoke religious institutions’ tax exemptions for upholding their own notions of sexual morality, and may well take a dim view of efforts to prohibit counselors or pastors from sharing such notions with gay or transgender clients.

Second, look for the court to offer greater clarity on the Second Amendment. Since Heller and McDonald, the Court has essentially gone quiet about gun rights. Left undecided are questions about the extent of the right to bear arms outside the home (implicating carry permits) and the nature and type of weapons precisely protected. If an originalist court follows the late Antonin Scalia’s reasoning that the Second Amendment attaches to weapons “in common use for lawful purposes,” then broad “assault weapons” bans will likely fail.

Third, you’d likely find interesting majorities protecting civil liberties from police abuse. There was a time when a “conservative” judge was essentially a judge who was traditionalist, statist, and institutionalist. Indeed, one of the quickest ways to determine the difference between a liberal and conservative jurist was to examine their record in criminal cases. The conservative judges sided with the state in close cases; the liberals sided with the defendant. With the increasing influence of originalism in conservative legal circles (and the increasing distrust of state power), the entire Bill of Rights has new life.  (At the same time, judicial efforts to end the death penalty would likely prove fruitless. Who can credibly argue that abolishing capital punishment was part of the “original public meaning” of the Eighth Amendment?)

Fourth, prepare for a more color-blind court. State-sponsored affirmative action — especially in higher education — has hung on by its fingernails for more than a decade. It’s beyond difficult to make an originalist argument for policies that, to take a contemporary example, effectively cap the number of Asians in any given class. The case for affirmative action has rested for a long time on magnifying the state interest in creating  “diverse” communities through policies that explicitly use race as a factor to punish or privilege specific demographics. These policies exist far more as a matter of social justice and academic theory than actual constitutional law. Soon enough, the nation may understand that “equal protection” means just what it says.

Fifth, expect greater skepticism toward the exercise of executive authority. In the absence of clear and express congressional delegations of power, there is growing originalist resistance to what’s called Chevron deference — the voluntary judicial practice of deferring to agencies’ interpretations of federal law so long as they are merely “reasonable.” The practical result of this doctrine has been an enormous expansion of administrative power and authority, permitting executive agencies to make the law as well as enforce it.

In fact, numerous executive agencies are now combining all three branches of government under one roof. They’re enforcing and interpreting the laws they make. This practice has had pernicious effects on our constitutional structure and has created an executive branch that would be unrecognizable to the Founders. Ending Chevron deference wouldn’t be a cure-all, but it would help restore constitutional governance, and it would start to reverse the incentives for congressional action. Do you want to see new law? Then let’s see more legislation and less regulation.

Sixth, American abortion law would likely change, though we don’t know how much. It’s possible that a solid originalist majority of five justices could reverse Roe. But even though Roe is repugnant to originalism (as is Casey, for that matter), the justices don’t issue policy statements; they decide cases, and they’ll likely review one or more challenges to various state restrictions on abortion soon enough. A more thoroughly originalist court is far more likely to uphold abortion restrictions and far less likely to adhere to Casey’s “undue burden” standard. But there’s nothing about originalism that mandates that they choose to overturn Roe in any given abortion case, and the simple fact of the matter is that each justice in a 5–4 split would be under immense pressure to preserve abortion as a constitutional right. Would they have the courage to do the right thing, even if that requires doing the right thing with a one-vote majority? Time will tell.

Finally, don’t expect an originalist court to overturn Obergefell. I say that not because Obergefell is a well-reasoned decision or because there’s anything originalist about it, but because there exists little appetite to mount a serious legal challenge Obergefell, because it’s difficult to foresee a cert-worthy case that would require the justices to consider the precedent, and because the primary legal controversies surrounding same-sex marriage often have little to do with the legitimacy of same-sex marriage itself. Conflicts between gay rights and religious liberty arose both before and after Obergefell, and their outcomes don’t tend to stand or fall on the basis of Kennedy’s most famous precedent.

There are those who will look at the list above with shock and horror. But I’m less sympathetic to the notion that the cause of building a just society somehow requires granting the state the power to dramatically limit free speech (or even compel speech, as California attempted to do to pro-life crisis-pregnancy centers in NIFLA), to create immense administrative superstructures subject to the barest legal oversight, and to make explicit, race-based decisions in dispensing jobs or college admissions. And justice actually requires that we reverse Roe and work mightily to end the senseless and unjustified slaughter of millions of the most innocent and vulnerable Americans.

In short, an originalist court stands for a simple proposition: The Founders created an ingenious system of government. We should give it another try.