RUSH: We would like to welcome to our program F. Lee Levin, Mark Levin, who is the director our legal division here at the Limbaugh Institute for Advanced Conservative Studies. He has a new book out, Men in Black. It’s about UFOs and aliens housed (laughing).
LEVIN: Actually when I first wrote the book, I submitted it, it was called ‘Men in Black
RUSH: (Laughing) Well, it may as well be that. F. Lee, people need to know some things about Mr. Levin that you may not know. In addition to his work at the Landmark Legal Foundation he was the chief of staff to Attorney General Ed Meese during the Reagan administration. You grew up in Philadelphia. You visited Constitution Hall as a kid just to do it because you were fascinated by it. He has a lifetime of interest in the law and the Constitution of the United States. So this leads me to the first question:
LEVIN: Well, you know, the book is written for the public, not for you know, Main Street, not for Harvard square. It’s for regular Americans so they can understand what’s happening to their government, how the Supreme Court is disenfranchising them and what they can do about it. There’s really not a year that goes by, Rush — and you talk about it all the time — when there’s some case that comes down, some decision that is really shocking to the American people, whether it’s conferring rights on terrorists or conferring benefits on illegal immigrants and on and on and on. So I thought it was time to really dissect this, really get into this — especially since we’re about to have a major battle over the Supreme Court when the president nominates one, two or three justices in the future. So I’m really trying to arm people who are interested in this subject with information so they can take it to their representatives and participate in this fight.
RUSH: That’s the point. The point is you’re trying to affect the knowledge of the American people so that they can then influence the people they elect to then wield that influence in a productive way. This is something you’re aiming right at the hearts and minds of the people in the arena of ideas.
LEVIN: Yeah. I mean, you know, the public stands there. We watch these left-wing groups savage one outstanding judicial candidate after another. We stand there and we watch the Supreme Court issue one outrageous policy decision after another. We live in the greatest representative republic on the face of the earth. It’s time that we emphasized the
RUSH: By the way, folks, I should tell you that I just found out that Mark’s book is going to open its first week on the New York Times list as #4. That’s just an astounding honor, Mark, and I want to congratulate you on that, and I want to implore the people of this audience to make this book #1 on the New York Times list.
RUSH: No. No. Because not only does it deserve to be, but this is a book, there are very few of these kind of books that come along that people actually need to read. This is historically informative. This is an educational yet entertaining book to read, and I want to start. You’ve perfectly cast what the court is doing now, what the left-wing groups are doing now, how a small cabal of Democrat senators can stop it. Where did this all start? What was the
LEVIN: Well, the Framers created basically a silhouette in the Constitution when it comes to the judiciary. It created a Supreme Court that had some specific powers not relevant to our discussion, and it left it to Congress —
RUSH: Did it name the number? Did it name the number of justices?
LEVIN: No, it did not. It was a blank slate pretty much, and it left it to Congress to decide.
RUSH: So Congress decided on nine justices.
LEVIN: Well, first there were seven. There have been a variety of numbers over the years. FDR wanted to make them 14, but it’s pretty settled now that there are nine justices. The number of justices to me doesn’t really matter. It’s what they do. The Constitution doesn’t speak of what the lower court’s going to look like.
RUSH: Claiming all three of those are constitutional to boot.
LEVIN: That’s correct.
RUSH: Claiming they’re constitutional when the Constitution says nothing about it. That’s one of the things here. You ask… You don’t know why they did it. I have to ask you about this. It seems to me that — whatever you want to call, Democrat, liberal, leftist, whatever label you want to attach to it — this kind of extraconstitutional power and desire for it has been around for years and years and years and years, and what you have just said is not taught anymore in the public schools. What you’ve just said, I have no doubt, is big news to a whole lot of people listening to this program, that the Supreme Court
RUSH: Because that stuff would never pass legislatively, and so for years — for a century, over a century — this stuff, it’s just become accepted. Now the American people have been slowly lulled into a comfortability with the notion that the Supreme Court is the final word on controversial political subjects.
LEVIN: Yeah, you know, let me be real clear about this. What are we talking about? We’re talking about today nine lawyers who are on the Supreme Court. Most people don’t know who five or six of those lawyers are, know very little about them. In our history we’ve had only about 120 justices. Some of them have been brilliant; some of them have been extremely competent; some of them have been racists; some of them have been senile, and some of them have been crooks. I mean they’re imperfect human beings, and it is time — as you wrote recently in an op-ed — to strip the veneer from the court and these justices. We shouldn’t hold them up higher than the elected branches. They’re no better and no worse than the people who serve in the elected branches. But where he we do draw the line is when they start setting policy based on their personal views or even more so-so views that are not expressed in the Constitution. In the dissent in Dred Scott in 1856 there was this Justice Curtis, and he couldn’t have put it better. If Justice Curtis were nominated by President Bush today, people like Chuck Schumer would say he’s an extremist and he’s unqualified. Justice Curtis said, speaking up
RUSH: Mark Levin is with us. He’s discussing the history of the Supreme Court, what to do about where we are now in his new book Men in Black.
RUSH: Rush Limbaugh with Mark Levin, author of Men in Black, debuting at #4 on the New York Times list when the next list hits. Mark, I want to go through some of the other things that you have mentioned in the book that show these tremendous contradictions, and quite literal overstepping of constitutional bounds. The court’s ruled, for example, that cyberspace child pornography is protected free speech but certain broadcast advertisements run prior to an election are not: campaign finance reform. Nazis marching in a predominantly Jewish neighborhood sanctioned by the First Amendment the court said, but demonstrations in front of abortion clinics were
LEVIN: No. In fact, under the Constitution with respect to immigration, for instance, Congress is specifically given the power to regulate immigration. You know, when you read these decisions — and in the book I don’t bore everybody with long dissertations about the decisions. As I say, I’m trying to put them in plain English — a lot of the defense say what you and I and many of the people in your audience believe. In the case where justice William Brennan wrote the opinion in which public school was a benefit conferred on illegal immigrants, people who are here
RUSH: Not only that, it’s something that the average American can’t understand. I think part of the problem is rooted in the legalese. That’s what was so great about the Breyer and Scalia debate. It was in common, everyday language, and that’s why Breyer looked like an idiot, because he actually made it plain that he was hunting anywhere in the world for something that substantiated his personal view while denying throughout the whole debate that his personal view was relevant. It’s why I was ecstatic when I saw this and had a chance to play the sound bites. But leads to the next question. It’s a toughie, maybe, but you said this has all been going on and evolving for decades. What role have the American people played in this evolution as it’s taken place?
LEVIN: Well, the American people have basically been on the sidelines. In a representative republic basically all they can do is pressure their congressmen and senators to do something about this. I think that’s starting to happen. I think that they are disgusted with these lawyers — is what I call them, that’s what they are — conferring without any constitutional basis due process rights on barbarians at Guantanamo Bay. Never in our history has any court, even
RUSH: How? How do you get rid of a renegade Supreme Court justice, for example?
LEVIN: Well, you can’t really get rid of
RUSH: All right, hang on there. We’ll hold you through the break here, because I want to explore both of those. We’re talking with Mark Levin, author of ‘Men in Black: How to Reign in an Out-of-Control Judiciary in this Country, Predominantly the Supreme Court.’
RUSH: We are having an enlightening conversation with Mark Levin, a constitutional scholar, Landmark Legal Foundation, former chief of staff to Attorney General Ed Meese and host of his own dynamite radio program from six to eight p.m. each night on WABC AM 77 in New York. Two radical proposals that you have just put forth there, F. Lee, and you know what it adds up to — and I’m not trying to suck up here. But I think, as I look at what the alternative media has done in this country and I place myself in it, but I think the thing that’s really bamboozled the left and why I think your book’s prescriptions will work is because we’ve all focused here on the American people. This is a country that is a representative republic, and the more informed people there are and the more people with historical knowledge there are, the more pressure that will be brought to bear on the political class, or the governing class. What we do have now — and this is a great way to put it — we have government by judicial decree. We have controversial issues, political issues, such things derrick I mean one of the predominant ones that comes to mind is abortion, and it’s quite simple why. Congress, over the years, has become cowardly. They don’t want to take on these issues because they run for reelection. So when it comes to base closures, just as an example, they appoint a blue-ribbon panel of ex-congressmen who have nothing to risk or at stake to come in, determine what bases will be closed so that their voters in their districts cannot hold it against them if a base in that district gets closed. It’s the same thing on any controversial issue. Even when it came to campaign finance reform, a lot of us were stunned. The White House seemed to say, ‘Well, let the court deal with this,’ rather than take a strong anti-position on this anyway because we don’t want to offend Senator McCain.
LEVIN: You’re exactly right, and this frustrates conservatives the most, because you and I and your audience, we
They’re doing it in an unconstitutional fashion because they’re either threatening to filibuster them or they are filibustering them, and this big battle is about to explode when the president nominates somebody for the US Supreme Court. Now, here’s the point about
RUSH: What is the latest ‘nuclear’ option that the Senate Republican leader, Senator Frist, says he has 51 votes to enact?
LEVIN: He has 51 votes to change the rule. Now, they keep talking about it. Why don’t they just do it? You know, ‘If they do this,’ Harry Reid says, ‘They’re going to rue the day!’ Who cares what Harry Reid says? ‘Well, we’re ready. We’re armed. I’ve got 51 votes.’ Just do it! Change the rule! You know, the court is changing the Constitution without going through the amendment process every day. The Senate Democrats are undermining the Constitution every day. We hem and we haw, ‘Shall we change a Senate rule?’ Now, that is a very legitimate act, as you point out. That’s the constitutional option. There’s nothing wrong with exercising it. This president, like every past president, has the right to leave his imprint on the judiciary. But the left is so consumed by holding onto its ideological advantage on the court that it is prepared, in my view, to lose two or three or however many red state Democrat senators because it is more important to them to hold onto that branch of government, the unelected branch of government, than it is to have two or three more senators.
RUSH: That’s exactly right because they lose that they have lost their primary mechanism for infiltrating the society with liberalism. You know, one of the things that’s frustrating to me is there’s a different attitude among even conservatives — not just Republicans, but even conservatives — who live and work in Washington. There’s a bit of a divide between those conservatives and those of us outside. I think we’re far more confident of our position today and where we are and of the winning trend that we’re on than those inside the Beltway are. Nobody that I know that I speak to in this audience is afraid of Harry Reid. We want to take him on! I don’t understand — and we’re not afraid of the New York Times editorial page. We’re not afraid of the Washington Post editorial page, but I get the sense that inside the Beltway, and inside the governing classes, there is this concern for those liberal institutions inside the Beltway, and it causes a little trepidation, and it leads me to believe that maybe some of these elected Republicans don’t really understand the full scope of the recent election results and what’s gone on in Washington and in the country since 1994 when the Democrats lost the House. They haven’t gotten it back. They’ve lost the last two presidential elections. They lose their margin in the Senate, and their margin of defeat in the Senate continues to grow. They’re not on
LEVIN: Yeah, that’s exactly right. I think there’s this argument that’s been out there, and it is an urban myth, that any effort for the representative branches to raise their legitimate constitutional authority and challenge the court is an attack on the court’s independence. This isn’t about the court’s independence. This is about the Constitution. All the branches have a role, and the elites look down on the people. You hear them all the time talk about the tyranny of the majority. Well, where is this tyranny of the majority? We have a Constitution. We have two houses in Congress. We have our elections. The Senate’s elected. Every two years a third of the Senate is up. Every two years every member of the House is up. We elected them. Where is this tyranny of the majority? All I see is a tyranny of a
LEVIN: That’s exactly where our House and Senate members should want to be. We can take this case to the American of people. We need to change this paradigm. We need to begin this debate, and the court isn’t handed down from God Almighty.
RUSH: Well, and especially given the current circumstances and context. There are more informed and more sophisticated of this country today than in recent years, and they react angrily and with outrage when they figure out and when they learn that they’re condescended to and they’re thought to be incapable of making decisions. They’re incapable voting the right way, and so we have to let the court do these things because, i.e., the people are too stupid to manage their own affairs, and I think that aspect is not being capitalized enough by the elected officials in Washington. You mentioned the two third veto of Supreme Court decisions, especially when it comes to such decisions that deal strictly with political issues and not legal. You know, the Supreme Court in my mind is there to adjudicate legal disputes, not political, but it has become the final authority on political disputes. So your two-thirds veto, brilliant idea, but I’m sitting here wondering who in Congress is going to take that up, and who’s going to run the risk of the hell fire and brimstone that will come their way by proposing it and trying to get it done.
LEVIN: Things happen in cycles, you know? It’s not going to happen tomorrow, there’s no question about it, because we’re talking about really changing the balance of power so that the elected branches can get back some of the power that they lost. It’s something we have to be vigilant about, and I think the Supreme Court’s going to help us. I think they’re going to keep issuing outrageous decisions. I think same-sex marriage is down the road. Look at this last Christmas.
LEVIN: I mean, you have everything from Santa Claus and Christmas trees. We have a court they couldn’t muster together a majority to uphold the Pledge of Allegiance on the merits of what’s in the Pledge of Allegiance — and let’s look at that for a second. The “wall of separation.” This is annoying to a lot of people and very upsetting. The Framers did not want a government religion. They did not want what they had in England, where everybody is taxed to support that religion and has to be a member of that religion or they’re punished, and so we’ve reached the point now where it’s been twisted and turned to mean what? If I don’t
RUSH: Who was a Supreme Court justice. (Laughing.) Separation of church and state.
RUSH: Talking with Mark Levin, author of “Men in Black: How to Reign in an Out-of-Control Judiciary in this Country, Predominantly the Supreme Court.” It will be opening at #4 on the New York Times bestseller list, and we intend to make it here #1, ladies and gentlemen.
RUSH: Ah, we do. It needs to be read. We got about 3-1/2, four minutes here. What about some of the justices? There have been some quirky, interesting personalities on the court. Give us a few examples.
LEVIN: Yeah, well, Thurgood Marshall. I don’t mean to be controversial but it is a fact. Near the end of his career on the court, apparently he spent many hours watching television, especially soap operas. People magazine, Rush, called him “a devotee of Days of Our Lives,” and he once told fellow justice, William Brennan, that you “can learn a lot about life from soap operas.” That’s why I think these guys should be term limited. William O. Douglas, an icon of the left. Author Bruce Allen Murphy — listen to this; this is pretty scary. It’s a Clinton moment. “Just a short time after she,” this is a flight attendant, “had entered Douglas’s chambers…” He invited this flight attendant to come visit him and he was going to show her the court, you know?
LEVIN: So a short time after she entered his chambers men’s of the staff began hearing strange sounds from inside: shouts, banging furniture and running feet. A short time later the office door flew open and out rushed the young woman her face all flushed and her clothing badly disheveled, shouting at the startled office staff how outraged and disgusted she was. Douglas, she said, had chased her around his desk, grabbing at her clothes and demanding that they go to a motel immediately for sexual liaison.
LEVIN: I’m not saying that’s Douglas’s entire career. I’m trying to point out these are imperfect people. There was James McReynolds appointed by Woodrow Wilson who many people don’t know was a segregationist himself. McReynolds was a racist and an anti-Semite. He said he “didn’t want the court plagued with another Jew” when they were appointing Benjamin Cardozo. Louis Brandeis was already on there. There was no official photo for the court for 1924 because McReynolds refused to stand next to Brandeis, and he would leave the room whenever Brandeis would speak in conference. He was hostile to Benjamin Cardozo. He often held a brief or record in front of his face when Cardozo would speak from the bench. I could go on and on about people who were on the court. President Taft. He met with eight members of the Supreme Court because one of the members was so senile, they didn’t want any of their cases to come before the court because they didn’t want this guy’s vote to go to sway the decision one way or another. There’s case after case. We have Abe Fortas who was taking money from a convicted swindler — and the point isn’t just to trash the court. The point is that the left has created this aura that is undeserved. They do not want us to look at this as a coequal branch of government. You hear it all the time, “Yes, but we need judicial review. What does the court say? What does the court say!” Sometimes we do. But what we don’t need from this course is the imposition of policy positions on the American people who are capable of making them themselves.
RUSH: Mark, thanks for your time. This has been enlightening, and I’m happy to have this hour with you here. I know Mark personally, and I know of this passion he has for the Constitution, and it has infected me and if you read his book, Men in Black, it can’t help but infect you. The Constitution is the glue that keeps this country together, fealty to the Constitution — and that’s what is really frightening with the left and the left-wing special-interest groups is that they believe the Constitution is meant to be bent and shaped to accommodate whatever their latest desires or hedonistic pursuits happen to be, and when the literal interpretation of the Constitution stands in the way of what they want then they find a way to say, “Well, the Constitution? The Founders would have never, never have written that if they knew what we were going to be experiencing in life today,” and yet the truth, ladies and gentlemen, of the Constitution is that it is — and fealty to it, that and the Declaration, our founding documents — are what have kept this country together. Many people have predicted we’d go the way of Rome, that we would not survive because we would implode on ourselves. But it is fealty to the Constitution, it’s why it’s so crucial. It’s why as many people learn about it as possible. This book is one of the best ways of doing that because, sadly, what you’ve just heard in this hour is barely touched on,
<*ICON*> Read Rush’s Original Coverage…
(Scalia Echoes New Mark Levin Book – 01.14.05)