PreCISELY!

I was listening to Hugh Hewitt's radio show on the way home yesterday. On Wednesday afternoons he has "The Smart Guys" on, Erwin Chemerinsky (from the left), law professor at USC, and John Eastman (from the right), law professor at Chapman University. Well, yesterday Hugh was asking them both about their opinions of the appointment of Janice Rogers Brown. Hugh's producer Duane Patterson runs the blog Radioblogger and has the transcript. Chemerinsky whined about how "out of the mainstream" Brown was:

I think it's sad. I think Janice Rogers Brown is pretty much as far to the right on the political spectrum as you're going to get for a federal Court of Appeals. She said that she believes the social security program is unconstitutional.

That's just a set-up for what's coming, though, because a few minutes later we got this exchange:

John Eastman: You know, I mean, it's just so preposterous, I don't even know where to begin. The reason Chuck Schumer is so upset about this, is Justice Brown is the kind of judge who will, you know, adhere to the Constitution. And when the members of the legislature, even the exalted Chuck Schumer hismelf, want to take actions that is not authorized by the Constitution, she'll be willing to stand up and do her duty, and strike it down. That's not an arrogance, that's what the judges are there for, to adhere to the Constitution, and not to let the legislature roll over them and do whatever they want. You know, it really is preposterous. We've turned this upside down. The judges that do exactly what they're supposed to do are demonized, and those that take a powder and let the legislature get away with every abuse, every extension of power imaginable, are touted at the cocktail circuit.

Erwin Chemerinsky: I think what Senator Schumer is saying, and is absolutely right, is that Janice Rogers Brown's repeated statements that she believes that the New Deal programs like social security are unconstitutional, is truly a radical view. That's not a judge who wants to uphold the Constitution. That's a judge who wants to shred the last eighty years of American Constitutional law. Janice Rogers Brown saying she believes that the Bill of Rights should not apply to the states, would undo the last seventy years of Constitutional law. That's not a judge who wants to follow the law. That's a judge who wants to make the law in her own radical, conservative views.

John Eastman: Hang on, here, because Erwin...there's a wonderfully subtle change in your phraseology that demonstrates what's going on here. You said she won't follow the Constitution, and then you said it's because she won't follow the last seventy or eighty years of Constitutional law. What happened seventy or eighty years ago that changed the Constitution? There was not a single amendment at issue in the 1930's that changed the Constitution. Some radical, federal programs were pushed through. Some radical judges, under pressure, finally signed on them, and the notion that we can't question that unconstitutional action that occurred in the 1930's, and somehow that defending that unconstitutionality is adherent to the rule of law, is rather extraordinary. There are scholars on left and right that have understood that what went on in the 1930's was...had no basis in Constitutional law, or in the letter of the Constitution itself.

THANK you, John Eastman for smacking down Chemerinsky when he so richly deserved it. Game, set, match.

And thanks to Duane Patterson for transcribing that spanking. (There's quite a bit more, if you're interested.) It made my day!