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Carolina Journal Radio No. 862: Identifying the largest problem in public schools

Carolina Journal Radio / Donna Martinez and Mitch Kokai
The Truth Network Radio
November 25, 2019 8:00 am

Carolina Journal Radio No. 862: Identifying the largest problem in public schools

Carolina Journal Radio / Donna Martinez and Mitch Kokai

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November 25, 2019 8:00 am

Everyone knows public schools face problems. What’s the largest problem? The answer depends on whom you ask. Terry Stoops, John Locke Foundation vice president for research and director of education studies, analyzes recent survey results focusing on public perceptions about problems in their local schools. A legal doctrine known as “qualified immunity” can create serious problems when a government agent wrongs a member of the public. Clark Neily, vice president for criminal justice at the Cato Institute, is working to end courts’ reliance on the qualified immunity doctrine. He discusses its ills. He explains how he’s attacking it. A public education reform called the Innovative School District continues to generate controversy in North Carolina. You’ll hear highlights from a recent legislative debate over changes designed to improve existing ISD rules. As North Carolina pursues criminal law reform, it’s getting high-profile support. Former N.C. Supreme Court Chief Justice Mark Martin served as keynote speaker for a recent Raleigh forum on the topic. Martin, now dean of the Regent University law school in Virginia, spelled out problems tied to overcriminalization. The American Bar Association plays a questionable role in determining whether judges and other lawyers are qualified to take new jobs on the federal bench. Jon Guze, John Locke Foundation director of legal studies, asks what role the ABA should play in the judicial confirmation process.

Line of Fire
Dr. Michael Brown

From Cherokee to current attack from the largest city to the smallest town and from the statehouse into the schoolhouse Carolina Journal radio your weekly news magazine discussing North Carolina's most of public policy events and issues welcome to Carolina Journal radio I Mitch coca during the next hour, Dr. Martinez and I will explore some major issues affecting our state there is a legal doctrine known as qualified immunity. During a recent trip to Raleigh a libertarian legal expert explain why he's fighting it to learn details North Carolina's innovative school district continues to generate controversy to hear state senators debate the latest plan to tweak that district for low performing schools. The effort to enact criminal law reform in North Carolina gets a high profile endorsement from the former Chief Justice of the state Supreme Court. And speaking of courts will ask whether the American Bar Association should continue to play a role in judging potential judges. Those topics are just ahead.

But first, Donna Martin has joins us with the Carolina Journal headline for nearly 5 decades, education, organization of phi Delta Kappa has asked a random national sample of adults to identify the biggest problem facing public schools in their community. Our next gas has been looking back at those results and how the issues have varied over the years and what folks seem to have settled on for the last few Dr. Terry stoops's vice president for research. Also, the director of education studies at the John Locke foundation. He joins us now okay Terry, 50 years is a long time now. Presumably, people's views would have changed give us a sense of some of the issues that have plagued people's concerns over the last few years. Sure one of the one of the things that parents really concerned about that and they continue to be concerned about spreading to various times they seem to have more focus on school safety student behavior and those sorts of issues.

Looking about what happens inside the classroom and thinking about how that affects the overall educational process so disruptive kids that he really maybe the kids are being bullied like that. That's right. And one thing to note about this whole question in particular is they leave it wide open so a parent doesn't have a list of things that they can choose from. They basically come up with an answer on their own and phi Delta Kappa. They take the answer and they look at it and categorize it into various categories like student safety or student behavior or the issue that was big in the 1980s, which was drugs.

There was a relief that parents believe the drugs were the biggest problem in school and and you know there were and continue to be problems with drugs. I don't know if anyone would necessarily say now, or even then that it was the biggest problem but that was the perception that parents had the drugs were the biggest problem in at various times. Other issues will will creep in. Certainly school funding has been something that in various years has has taken hold of of what parents believe is the biggest problem and and other issues that seem to be really dependent on the news of the day.

That is a very interesting point because those of us who lived through the 80s and you and I think fit that category.

We remember that the Reagan administration had a very big push to talk about data kids and saying no to drugs, etc. that was widely in the media for a very long time. He can have to wonder if maybe that impacted what people were were thinking was going on in schools. Yeah, I really think that it did when you look at why pair the period in which parents answer that question. It really did coincide with that campaign.

The Reagan administration of the beginning of the George Bush administration so the timing seem to be rights with that and I also believe that in the 70s when parents were saying the student misbehavior was the issue that there were also some things going on with that, there were changes to the way that schools treated student misbehavior. They became much more cautious, they were less willing to do corporal punishments and so there was a perception that students were getting away with behaviors than in previous years, especially in the 50s and 60s would not have been tolerated so there definitely is a perception there was a perception especially in the 1970s when it was the low one thing chosen by parents is the biggest problem that the schools have become lax in their disciplinary policies you write about this set in your Carolina Journal column in course that's available at Carolina. that over the past few years, and not quite. A couple of decades that the issue of funding and money has really come to the top of the list stem is that because of media coverage. I really think it is in and it's the last 18 years that has been at the top of the list in and through the 90s a couple times in the 90s and it reached the top know when I say the top of the list. It's not as if 80% chose funding because it's a wide-open question only 25% of the respondents chose funding as the biggest problem but it was by far the highest one had the plurality so parents choose that to the interview teachers as well. Teachers over and overwhelmingly choose as their top issue and I really do believe that that is a factor. I think there's been a concerted efforts, especially in the media to highlight issues of schools, supposedly, not having the kind of funding that they need all the press about teachers buying their own supplies plays into that when teachers have to buy things for the classroom. Parents assume that that they do that because the school doesn't have enough money so all of these things combined to create the perception that there's a money problem in schools and that that really is the biggest problem ends by connection to that problem. The way to solve schools problem is to increase its funding.

The survey respondents. Terry perhaps equating more money equals more learning, I believe so. And you know the connection is made in various ways. You know some people believe that if schools had more money they be able to lower class size or provide specialized programs or hire more teachers. I don't know if they necessarily make that connection, but the one thing that I've noticed about a lot of parents is it's an easy answer. It's an answer. That's not complex.

There is a public policy way to go about solving the problem. You know a lot of people say that the biggest promise schools faces students poverty their parental their home life.

There's really no easy way to solve that problem.

And so rather than having to take on those issues which are very difficult, they just say more money that's easy. How does that happen. The legislature Congress spends more money on public schools and so that's an easy out for parents.

It's an easy logical connection for them to make but I don't think it really gets to the heart of the challenges that schools face or would be the magic bullet in raising student achievement, what does the research say about the connection between how much money you spend and how well kids are doing in school what's really mixed. There was several decades of research that said that there wasn't much of a connection some very recent research says that there might be a connection. But here's the twist with some of that research. That's coming out and since empirical research is simply looks at test scores as compared to money spent. We don't know how this money was spent, we know that the states school districts spend more money we don't know how they spent it. So if were looking for public policy solution spending just throwing more money at schools sometimes may work, but we can't really tell how it was spent in the and that's the one thing I think we need to focus on in this whole debate about whether we should spend more money on schools is that you can throw more money at schools and spend it terribly and they did not have any effect on student achievement. Or you can spend that money wisely in ways in research-based ways that raise student achievement. How you spend the money is a critical component in thinking about the relationship between school finance and student performance will, how should we spend the money. What should the focus may then well I the one way that I think what we need to go about it is thinking about how we can recruit better teachers to the profession and keep our great teachers in the classroom so often teachers find that the only way to get a raise is to become a school administrator, I would like to see us give these teachers additional funds so they can stay in the classroom and continue to be great teachers. That's one way I think we can effectively spend money there are other ways that we can improve student achievement. I believe file without spending another dime and that's to open up school which school choice to as many students as possible. If we can tailor their education to their needs, which is what school choice does, then there we have a better chance of them performing well on state tests and doing well in life we been talking with Dr. Terry stoops. He is the vice president for research. Also, the director of education studies for the John Locke foundation very much. Thank you stay with this much more Carolina Journal radio to come in just a moment tired of fake names tired of reporters with political axes to grind.

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Welcome back Carolina Journal radio I Mitch coca when I say the words qualified immunity doctrine. There's a good chance many of you have no idea what I'm talking about. It's also the type of phrase that might help put nonlawyers to sleep. Will our next guest is here to tell us why we should know what that term means and why it's important to get rid of it. Clark Neely's vice president for criminal justice at the libertarian Cato Institute, thanks for joining us.

My pleasure thanks Academy to first of all, what is this qualified immunity doctrine wise and support.

While I appreciate the opportunity to talk about it is something probably like people don't know about, but this should usually important question. We closed public officials with tremendous authority and discretion as we do, particularly when it comes to members of law enforcement, police and prosecutors is what kind accountability comes along with that and there are only so many ways that you can hold people who wield the tremendous power accountable. I'm always through the criminal justice system so they can be prosecuted. For example if they violate some of his rights in a way that's actually crime. That's quite unusual and not normally how you want to.

You wouldn't want you one that we are through first-line resort on the other possibility is internal accountability mechanisms or timeouts for internal affairs or review boards or things in providing reasons we can get into or not those of proven to be largely effective.

So that really leaves private lawsuits of liability so that for example if your rights been violated. We believe your rights been violated by government official, including particularly a police officer then you have the ability to take that person according to ruling the determines that your rights been violated and what you're entitled a sort of compensation qualified immunity essentially disrupts the process by making it virtually impossible to hold please and other government officials accountable in court for their rights violations and the weight is that essentially what it does is the Supreme Court is inserted towards in the federal civil rights statute. There is a federal civil rights laws on the books more than hundred years and it says that government officials shall be liable to anyone that they injure or offer the deprivation of any right supreme court is change that law in effect by inserting words clearly established between any and right now you can only sue police officer or other government official for violating a clearly established constitutional right of yours or any other kind.

Right has been clearly established ones that mean well what it means is that unless you can find a case that already work with. That is only happy wherever it is they did do has already been done any court has said that's not permissible that that is that is a violation that person's rights then the right is not clearly established and your suit will be dismissed and this is usually problematic because it is basically caused water stagnate. We don't get for new release record saying what is okay and what is and we can get into some examples are moment and what it has done is is really disrupted the feedback loop so that police officers and other government officials are not getting accurate feedback from the public anymore about what we expect of them. When it comes to use of force and other issues involving our rights. We are speaking with Clark Neely's vice president for criminal justice at the libertarian Cato Institute, which is leading a judicial and legislative effort to repeal this qualified immunity doctrine you mention examples. Some people probably got it just of what you talk about, but how does this play out the real world.

Sure, I can give you a couple of examples of cases that are on the way to the Supreme Court. Right now we don't know whether the court will take these cases, but it did give you an illustration of the context in which this can come up. One involved a lawsuit by woman who was swimming in a public swimming pool in Nebraska. She was horsing around with with her family and her boyfriend, and someone mistook what was going on was afraid that she was being attacked. The cold police. The police showed up in and asked to speak with her. She spoke with them and assured them that there was a problem she wasn't being attacked or anything. During the conversation she looked over notice that somebody was hassling one of her children so she said the officer. I need to go and help my child, welcome back and finish speaking with you after I've done that and he said no, you need to stay speak with me like she's not understood to be the perpetrator.

She's mostly the victim and she's about 5 foot 210 pounds. Her bathing suit not armed. So she says I will speak with you but I need to go talk my child first, and so she turns and walks away. He comes up hundred police officer comes up behind her gets her in a bear hug lifts her up off the ground turns upside down and drives her onto her head so hard that he knocks her unconscious and breaks her shoulder. She sued for excessive use of force and the federal appeals, the Eighth Circuit Court of Appeals held that the police officer was entitled to qualified immunity, meaning the case could not go forward. Why because there wasn't a case on point where police officer had picked up a petite woman unarmed who was not resisting turned upside down and drove around her head. That is an example of what qualified immunity does in our system is it allows police officers who very obviously violated somebody's rights to escape liability to escape accountability. In effect for that and I consider unfortunately all day and give examples like that know you're a lawyer I'm not some good ask if I get the sense correctly because this is something that you said the Supreme Court established a Supreme Court could then establish it or disestablish it yet that's exactly right. Qualified immunity is, purports to be an interpretation of a federal statute. It's not a constitutional doctrine so there's actually two paths to potential paths to getting rid of it.

One is for the Supreme Court to go back and reconsider the cases in which it just created this doctrine from whole cloth should emphasize that for a moment this this purports to be an interpretation of of a congressionally enacted statute, but it's not. This was just an exercise in judicial, creative writing, they literally made this get out of responsibility, freed doctrine out of minute about whole cloth. So that is 1 Spring Ct. could reconsider those precedents will rule him and the limit qualified immunity that way. The other possibility. And as you mentioned working along these lines as well is for Congress to amend the law to clarify the amend federal civil rights want to clarify that qualified immunity is not a defense that is available to government officials.

Under this law, so way is is either of those are viable and it would be writing really desirable to eliminate this qualified immunity doctrine because as I said before, it's disrupting a vital feedback loop between the public and government officials about what we expect from them when it comes to respecting the rights.

This doesn't sound like it has to be a left right approach from anti-tromp one of these black or white issues.

Everyone ought to get involved in and see that this is the way to go right it's right so for small with the question of whether this is a legitimate policy in other words whether you think it's a good idea or not is it legitimate for the Supreme Court to to engage in policymaking and essentially say, well, you know, this law does provide liability for the deprivation of any right but that's not really very good idea. We need to give police and other government officials a little more leeway in doing their job. You could certainly argue for that is a policy, but it's not the policy that Congress enacted the Supreme Court simply invented out of whole cloth. So that's .1 and if you're an originalist conservative that you know textual is type of justice, then you should you should be inclined to get rid of qualified immunity because it doesn't have a shred of originalist historical or textual legitimacy.

On the other end of the spectrum with your use or the left-leaning type of person they tend to focus more on individual injustices and qualified immunity is an astonishingly unjust policy and it generates a tremendous amount of hinge a bunch of injustice and that would be another reason to get rid of just on policy grounds.

Is it doing what we want to do it is absolutely not. It's actually perpetrating a great deal of injustice in the brief time that we have left is this likely to change anytime soon. It's always in in in trying to assess the likelihood of getting rid of any government favoring doctrine you're starting off somewhere on the 10 yard line would say not the 50th. But I had to pick one really pernicious. You know, legal doctrine that there's a decent chance of getting rid of it. I think this is the one that's they were better than 50-50. Once again it's called the qualified immunity doctrine and one of the people working to get it overturned by hook or by crook, judicially or legislatively is Clark Neely, VP for criminal justice at the libertarian Cato Institute, thanks much for joining my pleasure. Thanks. Having blood more on Carolina Journal radio interest among if you have freedom we got great news to share with you now. You can find the latest news, views, and research from conservative groups across North Carolina all in one place North Carolina it's one stop shopping for North Carolina's freedom movement and North Carolina You'll find links to John Locke foundation blogs on the days news Carolina reporting and quick takes Carolina Journal radio interviews TV interviews featuring CJ reporters and let foundation analysts, opinion pieces and reports on higher education from the James Dean Martin, Center for academic renewal, commentary and polling data from the scimitar's Institute and news and views from the North Carolina family policy Council.

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Welcome back to Carolina Journal radio and Michiko got state lawmakers continue to debate the future of the innovative school district. That's a reform designed to help improve North Carolina's lowest performing public schools. The district also called ISD continues to draw opposition from Democrats like State Sen. J Chaudhary. I believe that there still remains very little evidence that such innovative school districts work as many of you know, under the innovative school districts. The Department of Public instruction would take over a low performing school district and contracted with a privately managed operator and for the last three years the track record, both in other states are now here is one that receives a failing grade in other states, the evidence overwhelming so overwhelmingly suggests that such districts have not worked in Tennessee for example a similar program called the achievement school district is in existence for six years and, according to a study that came out earlier this year. These districts have not resulted in any improvements in student achievements for the first six years as a professor there who studied the district said we feel confident at this point the strategy followed for achievement. School districts hasn't produced positive results for students.

We hope to see in fact, in Tennessee. The Tennessee education Commissioner said that there is a need to rethink this report.

Reproach on the other side of the fence Republican Sen. Rick Horner urges colleagues to support reforms there designed to make the innovative school district work better not to argue with success Locke successful programs just a reason for this bill here. I have also put bubblegum on the site try to fix it all. But if we fail to pass his widow for schools automatically go into a system so Chaudhary if so, doesn't work very well. That's current law.

If we do nothing for schools will be off to the highest April. So I believe this is a good attempt to salvage the program and give us time to see if it's something viable won't do as a perfect absolute would not try and you gotta try it in the public school University. Gotta do something for kids that particular this will have an option for charter school, or in districts who often within their district is nowhere else to go in and you know you can do so I will just tough luck His trial is not working very well granted, but it voted against it and you can do them for morning to go to the something your slaves not working.

That makes no sense. That's Republican State Sen. Rick Horner, responding to Democratic Sen. J Chaudhary there debating the future of a public education reform dubbed the innovative school district term with four Carolina Journal radio in a moment where doubling down on freedom at Carolina Journal radio were proud to bring you stories that impact your life and your wallet. And now get twice as much freedom when you also listen to our podcast headlock available on iTunes headlock is a little bit different. It's a no holds barred discussion that challenges softheaded ideas from the left and the right, like Carolina Journal radio headlock is smart and timely but with headlock you'll hear more about the culture wars get some more humor as well. We guarantee great information and a good time double down with S. Listen to Carolina Journal radio each week and listen to headlock to remember, you can listen to or subscriber download each week iTunes Carolina Journal radio and headlock just what you need to stay informed and stay entertained both brought to you in the name of freedom by the John Locke foundation Boca back to Carolina Journal radio I Michiko got as North Carolina policymakers move forward with criminal law reform. They're getting a high-profile endorsement.

Former state Supreme Court Chief Justice Mark Martin to help with the issue during a recent summit in Raleigh.

They wanted to destroy the legal system, what would you do when you make a rule so ambiguous, confusing and extensive that virtually every entity, every person is in a perpetual state of noncompliance. Does anybody here actually know every law that we have in the state. Every ordinance actually not and you is one of the numerous attorneys in the room. We understand that we had our heading to world greater and greater specialization.

Why because it's impossible for an attorney to to master every silo, every area of the law and that's why this is a conversation that we definitely need to have as a society.

I don't think anyone would say. Right, but how do we take steps to simplify to really make the idea of the social contract, meaningful people understand that all have fair notice and so can actually comport their actions planning to the constraints of the law.

Martin asked whether too many laws affect business. Have we criminalize business well.

An article from the economist talks about how I think we would all agree with the normative proposition that company should be held accountable but in the words of the economist. Are there times when it becomes extortion. We've all heard the stories of entire industries being shut down and reopening in China.

What does that do for the American worker for the American economy. Consider the criminal verdicts imposed on US executives. In many cases so it certainly some thoughts that we need to have about how we hold business accountable in a way, but also allows us to be a meeting for participant in the global economy. Martin suggests too many laws can affect politics as well about politics and we criminalize politics, to some degree the Ted Stevens case is a really interesting one, because a federal judge actually dug deep after the fact and realize that prosecutors had broken multiple rules in the investigation and prosecution of Ted Stevens but this is does not stand alone, and many of us would say what's happened this ability in our society was happened to professionalism and we know and at least a few cases what's happened to good faith prosecutions. So at this Ted Stevens former Virginia Gov. Bob and Donna, former Alabama Gov. Don Siegelman according to an article by Josh Dilts prior to the Supreme Court's ruling in Skilling, the honest services provision was broadly enforced, and I think all would agree at times in a very amorphous way and political officials were exactly sure where the lines would be drawn, and I remember when I was Chief Justice talking to several chief justices who said they stopped going to educational programs like this and with legal organizations for fear that someone might take issue with a free lunch. Even when there was an educational program attached to and I don't think that's a place we want to get as a society where everybody is fighting in their silo fear of what happens if they come out of the silo and actually meaningfully engage with other stakeholders. That's the voice of former North Carolina Supreme Court Chief Justice Mark Martin featured speaker at a recent summit on criminal law reform.

He pointed to one of the most absurd examples of over criminalization. Maybe this is the ultimate example, the lemonade stand.

I guess I should go ahead and confess that I'm guilty here as a child operator eliminate eliminate stand. I didn't have a business license. The stand had not been inspected right and so you need to know that three girls in Georgia were busted by their local police chief for running an illegal lemonade stand. Whenever asked why they did, they said, well, we were simply trying to save up money for waterpark to an organ eliminate stand was shut down in this case it was a seven-year-old girl because Portland authorities said the girl did not have a business license understand had not been inspected annually. Last but not least, the parents of kids in Maryland were slapped with a $500 fine for allowing their children to operate, eliminate, stand, so again I'm just trying to get us to think outside the box are we where we want to be in terms of the degree of criminalization and regulatory overreach in our society. What happens when prosecutors have a great deal of discretion in dealing with violations of the law. We know that prosecutorial discretion is an interval part of our criminal justice system. We also know another important characteristic or quality is uniformity of application and uniformity of outcomes.

One thing we do know is that unchecked discretion, holds great potential for injustice.

I always like Ken Davis's quote so I'll read where discretionary powers exercised. It ought to be confined structured and checked in order to achieve the greatest amount of discretionary justice and the least amount of discretionary injustice unconfined unstructured and unchecked discretion, holds great potential for injustice, Martin took a step back to ask a more basic question so what are primary goals.

Well first we know that the criminal law deprives an individual of life, liberty, or property. So why do we allow this.

We first understand that the community as a group decides on matters that are so unacceptable that there has to be a criminal sanction attached to and so we we consider this a moral condemnation of the community. We also want to deter conduct to preserve order and protect the public. I think Prof. Henry Hart said it well. We have to have a formal and solemn pronouncement of the moral condemnation of the matters that should be part of the criminal justice system.

Former Chief Justice expects no easy answers to questions about over criminalization. The reality is this is an area where it is difficult at times to strike the balance we clearly have the interest of the public. If you view it here in this triangle and safety public safety safety of the community. We also have constitutional burdens that are imposed on the state to make it hard to successfully prosecute and obtain a conviction in a criminal case. Then finally we have the liberty interest of the individual. It might be hard to strike the right balance of criminal law. But Martin pointed to the problems linked to having either too few or too many laws is under criminalization leave us well under criminalization fails to protect the public from wrongdoers fails to deter individuals from public mischief or the destruction of the order of peace of society that actually goes back to Blackstone on the other hand, where we have over criminalization we still protect the public right, at least in the sense but we also we fail to protect individuals from the state.

Oftentimes, we confer innocent citizens into wrongdoers because they are not even aware of the standards that they'll be held accountable to filing a rights trust. If you ever criminalize the public no longer understands was off limits.

It has a chilling impact on liberty as a chilling impact on formation for profit companies, nonprofit initiatives. A lot of good that comes out of society where people know that it's okay to move forward on something that's former North Carolina Supreme Court Chief Justice Mark Martin featured speaker at a recent forum on criminal law reform will return with more Carolina German radio in a moment real influence. You either have it or you don't and at the John Locke foundation we have it, you'll find our guiding principles in many of the freedom forward reforms of the past decade here in North Carolina.

So while others talk or complain or name call. We provide research solutions and hope our team analyzes the pressing issues of the day jobs, healthcare, education, and more. We look for effective ways to give you more freedom, more options, more control over your life. Our goal is to transform North Carolina into a growing, thriving economic powerhouse, the envy of every other state. Our research is how policymakers make decisions that ensure you keep more of what you are. Expand your choice of schools for your kids. Widen your job opportunities improve your access to doctors.

The recipe for stability and a bright future for truth for freedom for the future of North Carolina. We are the John Locke foundation. Welcome back to Carolina Journal radio I'm Donna Martinez, the American Bar Association has enjoyed a positive rep patient in this country for decades, but based on its recent evaluation of Lawrence van Dyck as unqualified for a seat on the Court of Appeals. John Locke foundation's director of legal study says the US Senate Judiciary committee should no longer look to the ABA for guidance on these nominations and nominees time to say joins me now to talk about all this, John. Welcome back to the show. Thank write that Lawrence van Dyck just got the Cavanagh treatment.

What I mean by that. Well, much as they did with with the breakout of the left is decided to sink this nomination, not by pointing out specific things about the candidate that might make him unqualified, but simply through process of character assassination high-tech lynching Mrs. Clarence Thomas Seguin tried to do to have years ago tell us about Lawrence van Dyck. What is his background and what was he nominated for. He was present on nominated him to join the US Court of Appeals for the Ninth Circuit. Prior to that. He'd been Atty. Gen. for Montana and imparted out of figures Assistant Attorney General in New Mexico. He had a very distinguished career. He also ended up. I think as I prosecutor for the Department of Justice, so he has thoroughly impressive background. He also went to Harvard Law school where he graduated back to Cabral that he was the editor of the Harvard Law Review, which is the most highly regarded law journal in the country by any objective measure.

He was clearly very well qualified for this position.

When the president makes nomination to a consequential seat like this.

There is presumably a vetting process, people, different organizations weigh in on the nominee and the American Bar Association has always by my read and consider kind of the gold standard. What does the ABA think about a person's background history, qualifications, etc. what did the ABA say about Lawrence van Dyck and why the they submit a letter saying that they had decided to write him unqualified and not for any thing to do with his professional behavior. In his various offices, but simply because some of the people they interviewed described him using phrases like arrogant, lazy, had a privileged attitude.

They said these kinds of things about well, presumably, there would've been other people who said something different about him absolutely. After the letter was published. A great many of the people, including many who were interviewed by the ABA for this appointment came forward saying that they'd had given them a glowing review, and they described was hard-working, thoroughly knowledgeable, fair pleasure to work with so they give a very one-sided account of what was reported and they didn't give any specifics or they didn't say something he done that was inappropriate or or didn't. That was it was just it was just a hit job.

What kind of an impact has this unqualified rating by the ABA had on his nomination. Well, I don't think it could hurt his nomination of a tall, but in fact were the people who really suffered as a result of this is going to be the ABA. What this after the letter was published. Great many member ABA members. Some of them reside.

Some of them came forward and said on the lever. ABA functions, many of them call for what Josh Blackman for one said he's a law professor okay 40 said he thought that the lady who interviewed or who ran this whole vetting process for that guy got a get called before the Senate committee and have to testify and always about how she could have been so unfair, so I think the people really loss of this is the ABA itself that many people are now say, myself included, that they probably shouldn't be consulted any longer about judicial nominees because they simply Be objective. Though there won't be objective. Did Mr. van Dyck respond to any of this. He was asked about the various allegations. One in particular, when during the hearings.

One of the nastiest things of the letter was aware distorted his response to a standard question. The letter said that he had refused to say he could be objective to members of the lesbian, gay, and transsexual community, but in fact what happened was that after him. That question will you be fair to these people and he had responded the way, all judicial candidates respond by saying I will be fair and objective to everybody and at the hearing.

He practically broke down the tears when this came up because as a Christian.

He said I think that all human beings are created in God's image and they should all be treated with respect and equal dignity. So this was just a disk disgrace. A disgraceful way to treat somebody who's been nominated to sit remote on the federal bench. John if you believe as you mentioned, others apparently do as well that the ABA is no longer able to be objective about these nominees then to should the Senate Judiciary Committee turn to try to understand who the nominee is, but I don't actually know of any organization that would win the confidence of both the left and the right of judicial validation so probably the best thing is for them simply to make their own research, make their own inquiries and make their own best judgment based on what they find. Personally, I have confidence in the federal society. They do a great job of evaluating potential judicial candidates and so does the president. He's relied on them throughout his term, but should the left would never go along with that. So I think the saddest is good have to do this on the road going for you know John over the last several decades them.

As we have watched this nomination process in these public hearings. It has gotten really really ugly.

I think fair to say what is happened to us in didn't used to be like this know it didn't.

It really started with the nomination of Robert Bork. They call it barking. Back then, because the idea was if you can find some dirt on the catheter say enough nasty things is noninvasively withdrawn.

Now that worked with him at work with with Judge Ginsburg but hasn't worked really very well. Since then, the main Clarence Thomas. I tried to think him this way and he went he went ahead and was appointed to the court and they try to do it, most recently with Brett Cavanaugh not really backfire to the problem.

I think now is that it's just become the Democrats of the left's go to plan whatever they don't like somebody or they want to stop them from speaking. They just they just smear them on in the public media and hope that they'll go away.

I wish I would change it doesn't seem the right way for us to be taught, try to resolve any of our disputes wasn't the standard that was previously used by members of the Senate who are making these votes really whether the person was qualified or unqualified, not really the ideology or the potential politics or evidence of politics of that person. It was really based on whether they were qualified jurist short previous cabinet, some of whom have pretty extreme ideological views like a Ruth Bader Ginsburg or Anthony Scalia.

These were people who were approved almost unanimously by the Senate. So this is a new phenomenon doesn't have to be this way affect recently with good Bader Ginsburg was interviewed about this and she said I think importing is correctly the way it was was right in the way it is, is wrong. So every nobody likes it, but it's not clear what we could do about and of course them that Supreme Court Justice that Ginsburg was very good friends with the late that Justice Kalina and those two people could not be any further part in terms of their views of the Constitution, etc., probably not. And they set an example that all a lot more people should be following. Today we we don't have to hate each other just because we disagree about things and we certainly shouldn't try to shut one another up by using personal smears is just not the right way and is a is the director of legal studies for the John Locke foundation John thinking that's all the time we have for the program this week. Thank you for listening Mitch, I'm Donna Martinez hope you'll join us again next week for more. Caroline internally Carolina journal radio is a program of the John Locke foundation to learn more about the John Locke foundation donations support programs like Carolina journal radio send email to development John Locke call 66 GLS 166-553-4636 Carolina journal radio is the John line foundation airline is maintaining Carolina broadcasting system, Inc. all opinions expressed on this program and are so clearly reflect the station. For more information about the show. Other programs and services of the foundation.

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