tv The Journal Editorial Report FOX News July 1, 2018 12:00pm-1:00pm PDT
station and fox news channel. that's it for today, have a great week and happy independence day and we will see you next fox news sunday. paul: welcome to the journal editorial report. i'm paul gigot and we begin this week with a dramatic end to supreme court's term, justice kennedy announcing retirement wednesday giving president trump his second vacancy to fill and a once in a generation chance to cement conservative control of nation's highest court. 81-year-old stepping down after 30 years and setting confirmation bat until the senate just before the midterm elections. let's bring in wall street journal columnist and deputy editor dan henninger, bill mcgurn, alyysia finley and james
toronta. what difference without kennedy? >> he was the most heterodox, has strong views on subjects but they don't always line up with the traditional liberal conservative, very much in favor of gay rights, free speech, whether liberal or conservative free speech and he was sometimes wild card. most likely new justice will be line up with the other four republican. paul: that could be the case, dan, it's interesting, if you look at first amendment juris prudence, kennedy was very strong, wrote the citizens united decision, for example, on campaign finance and free speech and there's no guaranty that his
replacement even if so-called conservative is going to be as strong on first amendment or even on state rights. >> well, that's right. all of these nominees in supreme court, intelligent person have their own mind, they are able to identify whether they will vote most of the time with conservatives or the liberals but there's no real predicting and a lot of the issues have been in play, i think, the first amendment is going forward is going to be a big one as people begin to argue that the first amendment should give weight to things like speech in the last term justice gorsuch in one of interesting he said he would like to revisit fourth amendment on searches and seizures. he thinks it's unclear. the court ought to do house-cleaning there. it's a little hard to predict other than what james suggest probably the next nominee will align with conservatives, almost certainly.
paul: alyysia, let's talk about politics, we have seen democrats react with horror, they are still sore over merrick garland approved in president obama's last year in office. congress confirm maryland judges in midterm years. >> i think that's right. kagen, justice scalia, several nominees from both parties had confirmed during midterm year. paul: filibuster is no -- >> you can blame harry reid for that in 2013 because he we wanted to pack the dc circuit so that they could reinforce the obama regulations. paul: that was for appellate courts. >> that's right. paul: with gorsuch nomination, the republicans decided to get rid of it for supreme court nominations but that's in part because the democrats opposed gorsuch.
>> they didn't want to allow confirmation, you saw manchin, three democrats did vote but they would not have allowed trump to get any nominee on to the court. paul: they supported gorsuch and they wouldn't have unless the republicans had shown an advance that they had the votes to confirm. >> that's right. paul: democrats would have been a lot smarter to support gorsuch and retain filibuster for this nomination. >> absolutely, they have nothing going in. couple things, the fact that they are reacting so strongly tells us the supreme court looms too large in our life. paul: could not agree more, bill. >> personal believes for the law, that's a problem whichever side comes out. i think one of justice kennedy's great contributions, though, in those decisions where it went south was justice scalia's greatest memorable phrases about
fortune cookies and so forth. but i think that the reason the supreme court, especially large for the left, their preferred legislature. they would rather work through and get 5 justices to put something through that couldn't make it through the democratic system especially on state by state basis and that's why they are so very upset at this. paul: james, our friends on the left are already saying this is going to be the end of abortion rights, the end of gay marriage, but i really do not see that happening even with a fifth conservative vote. i think certainly chief justice roberts will be very cautious about overturning any of these -- those precedents. >> i think gay marriage is here to stay. how would you undo all of the marital contracts entered into by the people all over the country. on abortion it's quite possibly that eventually roe versus wade
will be overturned, it would take at least 6 justices, they will proceed cautiously. paul: i'm not sure conservatives on the court will overturn roe v. wade, it would be disruptive. dan, what do you think? >> i think that's right especially whereon roberts being chief justice, he's aware of the court's reputation, i think that part is overblown. make no mistake, the liberals are going to elevate this issue during the battle over abortion rights, women's rights, minority rights, health rights, they will try to make it a big political issue, problem is that could animate conservatives and republicans to turn out in november. i think the democrats are in a very, very tough spot with this nomination politically. paul: all right, thank you all, when we come back from free speech, a look at kennedy's legacy and how supreme court likely to change with his
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paul: ronald reagan appointee justice anthony kennedy was at the center of many court's biggest decisions over the last 3 decades casting the key vote in landmark cases involving abortion, affirmative action, gay rights and guns and campaign finance. editor-in-chief of the cato and i spoke with him about the kennedy legacy. >> welcome. let's talk about justice kennedy and legacy, you wrote this week while you end up agreeing where justice came out on a lot of cases, you disagree with the way he got there, explain that. >> part of the rule of law isn't just getting the right results but the reasoning matter, that's why the supreme court explained itself, so people can follow how the law develops, what it means, what the constitution means and justice kennedy didn't follow kind of conventional juris
methods, the purpose of given law or anything in particular, people tried to evaluate, i certainly did how he got to the answer in a lot of different areas of law but often there was simple inscrewedability or the idea that civilized society doesn't pass laws that harm people, for example, rather than importing national right theory of the law or involving constitutionalism. i agree with him a lot. probably the most libertarian justice, that's allow bar, a bit of a black box as well. paul: i agree with you on the racial juris prudence, he didn't give clear guidance even though he was swing vote on university racial preferences but on the first amendment, for example, i
think that he had actually a very clear sense of what was legal and constitutional under the first amendment, he provided the key vote, for example, he wrote the opinion on citizens united and had a lot of the first-amendment cases gone the other way, we would have a diminished free speech right. >> yeah, that's one of the exceptions that proves the rule that i was talking before absolutely, justice kennedy was not the swing amendment on first amendment cases, citizens united or other. the most free speech justice that we've had in quite some time, maybe ever. you saw that in several opinions that term this past week whether with the compelled speech with public sector unions or pregnancy centers. paul: let me push back again, if you want to describe kennedy's
juris prudence, personal liberty that led him to social left on abortion rights and gay rights, on free speech and gun rights and property rights the right. that was consistency of the court of juris prudence, what do you think about that? >> you're trying to make consistent claims and i don't think it holds up. you mentioned property rights, he was one of the votes for the government, for the development agency that you can take property from a private business, individual and give it to another private actor and so, again, it's part of the contextualize issue areas, certainly he was for personal liberty in many ways but not in the way that libertarian, not in the way that cato or institute or scholars might like. he didn't apply national rights theory or any other way that you might describe like gorsuch,
neil gorsuch, i think is dedicated to and so it really depends on how it fit into his view of the world in certain cases the structural protection be that federalism, separation of powers was important and he was a key vote on the obamacare case, for example, fully in line with striking it all down but in other examples, race versus gonzález, the federal government can regulate plants that you grow in your own backyard, medical marijuana. paul: all right, fair enough. there's inconsistency there. in the balance i would say he did strike -- he did tend to support cases that helped a clear definition of the separation of powers. but i want to talk about nile gorsuch, first year on the court, very important term. howhow do you think he did? >> i think he did really well. he very quickly has become my favorite justice. he's the only ph.d on the court and his approach is very
philosophical, first principles oriented. you sauna his opinion in carpenter versus united states relating to whether the police need a warrant to get cell phone location data and although technically gorsuch was descending from the ruling against criminal defendant for the government, that was concurrence in all but name. he had technical reasons there but calling for a fundamental rethink of fourth amendment juris prudence not to be tied to 50-year-old precedent of reasonable expectation of privacy which after judge. he focused on property right aspect of fourth amendment, gorsuch looked at have you taken steps to protect your personal effects and papers, whether that's digital, contractual, property or otherwise. you can see that again and again in textual and first principle constitutional cases, he really wants to go back to that well. paul: one question about the
future of the court after justice kennedy, a lot of people on the left are saying that roe v. wade, abortion rights in jeopardy. >> not roe v.wade. with john roberts becoming the median justice, which is the case we have another gorsuch, he's incrementalist and minimalist, i doubt that he would want sweeping overrulings of a whole slew of controversial precedents but he would be more likely to uphold restrictions, so some of the restrictions that have been overturned or struck down in the last little while on abortion and other things would be upheld without necessarily overturning some of these long-standing precedents. paul: gives state a chance to regulate a little more but upholding the fundamental right. thank you very much for being here. appreciate it. >> my pleasure.
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paul: even without kennedy announcement the supreme court this week wrapped up what can only be described as blockbuster turn. justices handing president trump a big one in travel ban an public sector a big defeat in order to complect fees. back with dan henninger, james taranto. >> janus alone is a big one. this is a huge victory. victory substance subsequently for the first amendment but it's a huge defeat for a lot of the democrat interest groups because they've used this money that they were able to coerced from people in politics. i think like wise the first amendment case in pregnancy
centers in california not compel today give out information. the travel ban, i think the travel ban is separate category. anyone but president trump that wouldn't have been an issue. what's interesting about this with kennedy, normally he's known to be the fifth guy voting with the liberals on a case. 19-5-4 decisions and none of this -- paul: any other cases that you cite this year? >> i think the carpenter decision which came out last week where justice roberts sided with liberals in expanding basically fourth amendment to cell phone records and cell phone data and the way he did so was easy and will be extended and fourth amendment has never applied to third-party data, could make it harder for law enforcement and national security to do their job.
paul: dan, what do you make of nile gorsuch's first term? >> i thought gorsuch began to establish himself as a clear and independent voice and as shapiro was suggesting in interview, nile gorsuch, a young member of the court, probably he will be joined by another young member of the court and some of these younger judges, i think feel that over the years the supreme court has become -- a lot of the law is unclear in areas like the fourth amendment, possibly in the first amendment as well and i think he's going to spend a lot of his time going forward being the voice of clarity about the constitution on the court and i wouldn't be surprised if the new judge joining him say amy, for instance, from notre dame if she's the nominee, appellate court in dc, will join him in that effort. paul: james, what about the
liberals this year? they won a couple of cases certainly with carpenter, what do you make of the divide that i think you see emerging between brier and kagen and sotomayor. >> we have seen it for a while. in the obama case 2012, kagen and brier joined conservatives in striking -- limiting the medicate expansion. this is something that we have been seeing for a while. sotomayor and ginsburg, seem to be about issuing creed in favor of vision of quality or what have you and it is an interesting divide, it's not entirely homoagain -- homogeneous. paul: she goes with chief justice to form majority as long as narrow decision. the baker got the right not to
bake the wedding cake for -- >> or the administrative law case which she wrote 6-3 ruling with three liberals on the other side. paul: that's correct. in both cases you had narrow ruling, not a landmark ruling on the fundamental constitutional principle, do you agree with that? >> yes, master piece cake shop was kennedy ruling, reached middle ground result because he was balancing two values, gay rights on the one hand and freedom of conscious on the other. paul: any big take away, james, from you, any other take away? >> i think the biggest thing these two cases that came out this week, janus case on union agency fees and the case on crisis pregnancy centers. you cannot require people to say things that they don't believe and that was an important to be said. paul: dan, is the chief justice
going to emerge as the swing vote, do you think? >> yes, i don't think there's any question about that and it's going to be remarkable because chief justice normally is not the swing vote and that puts justice roberts in a very powerful position both distributing cases and maybe deciding ultimately which way the court is going to go in the future. paul: you agree with that? >> i agree with dan and part of the reason chief he would like fewer 5-4 decisions even it's narrower and the chief has latitude about caking cases themselves so i think we will see interesting maneuvers, look, i hope at the end of the day it means that a lot of cases get to supreme court, should go back to the american people to decide. >> all right, thank you all, still ahead, the president takes on harley davidson after the motorcycle manufacturer announces plans to move some production overseas. so has retaliation begins for the trump tariffs, will other swing state industries follow? we will ask ron johnson next.
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often times, it's a harley and the sound of harley is a little different, i have to tell you, thank you harley davidson. paul: that was president trump last year praising harley davidson as american icon. the president striking a decided different tone this week after the motorcycle maker announced it would move the production of europe bounds bike overseas, result of retaliatory tariffs enacted by the european union last week. tweeting tuesday that the move would be the beginning of the end of the company. joining me now is republican senator ron johnson of wisconsin, home of harley davidson's headquarters, welcome senator. so you're a businessman, you were before you got to the senate, you know what it takes to make money, what do you make of harley davidson's move of some production overseas? >> well, they are being competitive and we are facing
tariffs on products into europe from 6% to 31% when they are facing raw material steel price increases because of the generalized tariffs on steel and aluminum. they can't sell their products, they are going to lose the markets, they will lose the sales and they would either lose workers here in wisconsin because they don't have the sales or they have the opportunity to produce these things overseas where they can buy steel at market prices and that could charge tariff going to europe. they are put in a horrible situation and i heard members of this administration talk about short-term pain for long-term gain and no doubt some of that short-term pain would be temporary but some immediate and permanent and this is one of the decisions. i talked to ceo of harley, maybe they could reverse decision but if this doesn't get taken care of, permanent loss of jobs and very unfortunate. paul: if you're making long-term investment decision in the tens
of millions, maybe a hundred million dollars, you're not reversing that once you start to make that decision. >> paul, i also talked -- a woman came in with a group of people that supplied the trucking industry, he's been in the building for 20 years, $50 million worth of sales, she told me if this isn't fictioned in the next few weeks, she's out of business in 3 months. again, permanent immediate pain. paul: okay, some of your colleagues have been talking about trying to take back some of the power that congress has given the president on trade for many decades, bob corker was offering amendment on the senate to restrict the definition of national security under section 232, do you support the effort? >> i was one of the early cosponsors, i'm not sure we have to do it immediately but i think certainly over time congress must regain so much of the power and this is one of the areas in terms of tariffs. we need to reclaim that power.
let's face it, we need an executive to negotiate trade deals but should be negotiated with full consultation and the deals should come back to congress for ratification and approval. paul: you know, senator i talked to colleagues about this, i would say that by far the majority of the republicans agree with you on this and yet your leadership has not wanted to have a vote, they did move one this week but blocked by democrats, brown on the floor, are more of your colleagues getting concerned about that and economic impact? >> sure because they also had businesses like i just -- whether it's harley davidson or one manufacturer who i can't name because they fear retaliation. 30,000 waivers have been requested by the commerce department of the tariffs, 30,000 situations where people are, again, experiencing the short-term pain, this is not republicanism, this isn't conservative economics when we
literally have, what, now commerce department operating which business is going to succeed and fail. no, more and more republicans senators will be hearing from constituents and they are going to be hearing of these situation where is it's going to be immediate and permanent pain to long-term strategy. paul: so what recourse do you have in congress to actually make the president change course i guess other than speaking, any recourse you have? >> we really don't because even if we were to pass in senate i'm not sure it would pass through the house and certainly vetoed. i don't know if we would be passing measure with veto-proof majority. all we really can do is continue to point out the real-world examples of the immediate and permanent pain caused by this trade war. paul: all right, let me ask you a question before we go about the president's summit with vladimir putin, is it a good idea for him to meet with putin and what -- do you have any advice for the president? >> well, on sunday i'm fly to go
moscow myself and i'm going to join the delegation of, i think, 4 or 5 other members of congress. we need to be talking to -- to all of our adversaries. russia has 7,000 nuclear weapons, their aggression is destabilizing so many areas of the world. i sure wish russia was no worst than friendly rival as opposed to unfriendly adversary it is right now. i'm for talking to people and try to turn down the heat and try to find areas of cooperation. paul: okay, are you worried about any kind of a deal, for example, crimea or eastern ukraine to russia? >> absolutely, we need to address russia with strength and resolve and real cooperation, same thing is true with north korea as well. we have to treat both of these adversaries through position of strength and resolve. paul: all right, good luck on the russia trip. thanks for coming in. when we come back, stunning upset in new york primary oust a long-time democratic leader,
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>> she ran on progressive platform, sing-payer health care and abolishing ice which is exactly a new one here. paul: immigration enforcement. >> immigration and customs enforcement and she went down to the border, made issue of the family separation policy and meanwhile crowely really took race for granted. 10 to 1 funding advantage but i don't think he saw this coming. paul: if he had 10 to 1 funding advantage he spent a lot of money on the race so he must have thought that there was a real contest here, has the district changed, was there allow turnout? >> there was high progressive turnout and i think especially among young people, she did really well with area where you have young millennials moving in and they really thought, we need to have generational change and
she played to, you know, identity politics, puerto rican, campaigning against the white middle-aged man. paul: we have a real problem these days. kate, what message are the democrats who are back in congress going to take from this? >> well, it's interesting, paul, there's been talk back and forth in democratic party about whether this is aberration or sign of larger problem for democrats, right, i tend to think that there are unique characteristics to this district and how it's changed over the past 20 years since crowely started representing that do make it unique but also really energizes the movement and cortez said in victory night that they need a whole caucus of democratic socialists and i think she's committed to making that happen. paul: and ocasio-cortez, she will put scare on so many other democrats because even if there are characteristics of this
district, unique characteristics, that doesn't mean that they will still not say, hey, i don't want a primary that this will happen to me. >> that's right, paul, i do think victory is probably a little bit overstated. i think joe crowely lost touch with constituents but the liberal press is suggesting this will have big implications in the house of representatives. they're arguing that nongy pelosi who would be speaker if they won in november is old and her number 2 from maryland is a white male and this means that the house is becoming more diverse, meaning more women and more minorities and even suggesting that nang you pelosi could face a challenge say from a member of the black caucus. paul: kate, do you think this signals more polarization in the house if the democrats do take control in november which i think there's a very good chance they will. >> oh, absolutely, paul. i mean, some things she's proposing are things really want but some are afraid to commit to
like large tax increases to fund social security but the only thing i'd ask of her list of policy items was a one-time large student loan forgiveness round. some of these things will get more attention as that problem becomes more acute and i do think this is just going to create a crack-up. paul: you know, it's interesting, allysia, you follow california politics and new york state politics and you see the governors of new york state cuomo very different now, 8 years when he ran as moderate and gavin, democratic candidate for california now much further left. so this primary suggests, i think, it's indication, another indication that the democrats are moving left. >> i think that's right. you also have to point the janus case, one of the reasons, cuomo moves left to gain public union support. there are other cultural shifts
in the party pushing especially with the resistance to president trump. paul: now, dan, you know, a lot of republicans say, well, they are moving too far left, this is going to cost them elections, that's what the british said about jeremy corbin and almost won the last election. >> yeah, the republicans cannot rest on laurels now, they will take fight to democrats, they made highly rhetorical arguments about stalling part of health care system, inequality and these are argument that is the republicans will have to address, they can't assume that the democrats are self-destructing, that's not going to happen. paul: thank you all, when we come back a compromise immigration bill goes down in the house as they debate over borders taking ugly turn, would the left's rhetoric help or hurt them in midterms? >> good morning. >> good morning!
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paul: republican leaders suffering another setback this week with the house soundly defeating a so-called compromised immigration bill, the measure getting 121 votes far short of 218 needed for passage that defeat coming as the debate over immigration takes uncivil turn with members of the administration being heckled at home and public venues and democratic congresswoman telling supporters to harass officials at department stores, restaurants and gas stations. we are back with dan henninger, bill mcgurn and kate bachelder
odell. kate, why did the immigration bill failed so miserable? >> it's a good question, paul. there are a lot of authors of the failure, one of them was president trump who did not go out and campaign of the bill to try to get it passed. there are other authors too like the freedom caucus who have moved the goal post on what they are interested in getting in exchange for deal on daca and whose on bill goodlatte bill failed on the floor. but the democrats have been cynical about this discussion as well? paul: they want an issue, they think it will help turn out voters, any chance of anything happening on immigration between now and election for example on family unification of the border in. >> the republicans have been working on a bill on that it's not clear where trump is on signing it at this point and that's one reason why it's delayed an not come to a vote or introduced but -- so i don't see
much opportunity unless there's change. one thing that we were discussing is when voters know that both parties are being cynical about having political issue instead of resolving a real problem for young adults who some of them are in the military, i think that's when they start to vote for people who are more radical. paul: dan, where does that leave the moderates, so-called moderate who is were pushing discharge petition to would give legalization for dreamers and also have tougher border security, leaves them high and dry. >> i would say it leaves them on the bubble paul, that's why they wanted the vote. had this incident down at the border with separating mothers and fathers from children not happen, i don't think this would be a big issue in november. it is now and the issue is there are between 20 and 24 republican who is are in very tight battles for their seats, these are not sure republican seats and they have to wonder whether moderate, independent voters in their districts are going to punish
them for what has happened in the border, that's why they wanted this vote so it's going to be an issue in november for about 20 republicans. paul: both parties, trump seems to think it's a good issue, republicans, democrats think it's a good issue for them. we have seen breakdown of civility on immigration. it's more por alized than ever. what do you make of this call to harass -- >> well, that's the one thing that could turn from the democrats to republicans. i don't think people want to see that. it's intractable in the sense. there are republicans that don't want any compromise because they feel would give path to citizenship or amnesty right, however you define it. paul: deport -- >> live with status qo rather move inch on this correction. democrats allow them to call republicans racist, that benefit -- the status quo does benefit the democrats that way and i
think that now we've reached a point where it's hard to get any deal before november. paul: you saw, dan, where nancy pelosi and chuck schumer, democratic leaders in congress they basically said, knock it off maxine waters, i don't think that helps us to have call for harassment? >> the question is can the democrats control left, moderate left are in mass protests, invaded restaurant in washington, d.c. where homeland security kirstjen nielsen was having dinner, went to her house, this sort of thing makes a lot of voters uncomfortable. they they it raises the law and order issue and the democrats, i think, they want the protests, they want opposition but they don't want that kind of violence beneath surface. >> i believe with dan entirely except i would say this, what's shocking is how many democrats
don't condemn what maxine waters is saying. now a lot of people are afraid of her in her own party. paul: what do you think has the advantage on immigration in november? >> i think it hurts both parties but i think it will hurt republicans worst and i think republicans understand them than a small island of them. paul: they are the party in control and haven't solved the problem. all right, we have to take one more break. when we come back hits and misses of the week. there's little rest for a single dad, and back pain made it hard to sleep and get up on time. then i found aleve pm. the only one to combine a safe sleep aid, plus the 12 hour pain relieving strength of aleve. i'm back. aleve pm for a better am. gentlemen, i have just received word! the louisiana purchase, is complete! instant purchase notifications
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in the world cup by their soccer team, he did a video applauding them for their play. but linking it to the courage of the iranian people that are now demonstrating on the streets in iran. i think it is an odd time when the prime minister of israel has more confidence in the people i ran them their own government. >> thank you. >> this is a hit for charles -- poised to be nominated to run the irs. this week said in his confirmation hearing that he was committed to running top to bottom unbiased irs. the agency has had some amusing problems lately like the tax website blowing up on tax day but also, more serious issues like the attacks targeting conservative groups and especially important because we have a new tax law that needs implementation. cheers to the agency getting some long overdue new political leadership. >> alicia? >> a hit to the federal judge in san francisco. a bill clinton appointee. he throughout a lawsuit by san francisco and oakland against the oil companies causing
climate change. the judge even went so far as to say that there have been benefits from fossil fuels. congratulations for speaking truth to liberals. >> dan? >> a big mess to the american library association. they rescinded an award it gave last year to laura ingalls wilder, the author of little house on the prairie because it didn't like the way she depicts native americans. he says she doesn't do with enough inclusiveness, integrity or respect. then it said this should not be construed as an act of censorship. the rest of us do not have to participate in that kind of disgusting doublespeak. that is censorship. >> how long is the list? we have mark twain, huck finn. you cannot read that. it is getting longer all the time. >> it is getting longer all the time. it is beginning to look like book banning to me.
and remember, if you have your own hit or miss be sure to tweet us >> and we big with a fox news alert. new reaction this hour from capitol hill. as the present considers candidates to replace the retiring justice kennedy. this is one week from tomorrow. certainly stirring up a lot of debate especially on abortion rights. some fear a more conservative choice would have rolled back the roe versus wade ruling. welcome to a brand-new hour of "americas news headquarters". i am eric shawn. >> i am arthel neville per the president talk about the decision during a interview with maria bartiromo earlier today on "sunday morning futures".