← Next Up with Mark Halperin
Next Up with Mark Halperin
Dominant Media’s Massive Blind Spots, the Key Midterm Ground Game, and James Rosen on Trump, Obama, and Scalia
01:12:18
In this episode, Mark Halperin argues in his reported monologue that too many journalists cover “politics” instead of “campaigns, leaving their audiences largely unaware of what really wins and loses elections. The vast majority of news coverage focuses on surface narratives and political gossip, leaving consumers in the dark about the asymmetrical campaign advantages that are the obsession of the pros. From data operations and AI-driven voter targeting to fundraising strategy and digital advertising, he explains how the craft of campaigning creates the edges that separate winners from losers — and determines who governs. Then author James Rosen joins to discuss why Justice Antonin Scalia remains one of the most consequential Americans of the last century. They explore Scalia’s originalism revolution, the controversy surrounding Bush v. Gore, and how Scalia’s legal philosophy still shapes the Supreme Court today, before ending on a lighter note with Rosen’s spot on Obama and Trump ...
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Mark Halperin
Few things are as uplifting as the
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James Rosen
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Mark Halperin
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James Rosen
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Mark Halperin
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James Rosen
You already have a brilliant body. Supplements just help support your journey. For over 50 years, nature's bounty has offered vitamins and supplements to help you eat, sleep, thrive, repeat. From magnesium glycinate for heart and muscle support to hair growth capsules for fuller, thicker hair and probiotics. With 20 billion live cultures for digestion, Nature's Bounty. It's in your nature to thrive. Learn more@naturesbounty.com these statements have not been evaluated by the Food and Drug Administration. These products are not intended to diagnose, treat, cure or prevent any disease. Hello, hello, hello. Welcome back. This is next up. I'm Mark Calperin, editor in chief of the two way interactive platform where you can enjoy live video performances by my colleagues and myself. And I'm your host here for this hour. Really great show today, James Rosen. He's the chief Washington correspondent for Newsmax and an author of a lot of books. His new one is a second book in his three Plan three volume set, biography of Justice Scalia. And you don't have to be a fan of Scalia or of the law or really history even, although you should be to enjoy this book. It's gotten rave reviews. It's an inside look at the life and mind and the impact of Supreme Court Justice Anthony Scalia. And this, this volume covers the first half of Scalia's nearly 30 years on the high court. James is just a great writer and it's a great book and we're going to talk to him about Scalia, who also save a little time to let you hear some of his extraordinarily good impressions of some leading American iconic figures and then some Beatles trivia. James loves the Beatles. I love the Beatles. I am not his match in Beatles trivia. So if you love the Beatles, you're going to hear some tough questions for James and for the other contestants. You'll see and you'll love it. I think you'll love it. James is just such an interesting guy and he brings to life Scalia in the book. And he will for us here before he joins us though. Up next is my reported monologue on reporting about the midterm elections and about things we cover here in general. Some people call it politics, I call it campaigns. And I'll explain why that's next up. Small businesses, they're the backbone of the American economy, always have been. But getting funding from traditional banks can be an uphill battle. Of the 36 million small businesses in the US over 70% report needing additional capital every year. While revenue is at an all time high for the big banks, they're tightening standards and approving fewer loans than ever, leaving owners of small businesses stuck with mountains of paperwork. But if you want bank rates without the bank delays, check out Cardiff Co Mark for up to $500,000 in same day funding. Cardiff is the largest privately held small business lender in the United States, having funded over, get this, $12 billion since 2004. Their application, it takes less than five minutes, has no impact on your personal credit and approvals happen in minutes. With same day funding banks, they try to lock out small businesses. Cardiff has the key. Big banks may not want to approve your business loans, but Cardiff does. If you've been in business for at least a year and you're pulling in 20 grand a month in revenue, apply now for up to $500,000 in same day business funding. Go right now. Go to cardiff.co/mark to check it out again. That's cardiff.co/mark. Real growth, fast funding. Cardiff borrow better. Okay, next up, my reported monologue on the media and what people call politics sometimes, you know, we're in an age now where media is supposed to be more sophisticated, right? More behind the scenes, more letting the audience into what's really going on. And that's supposed to happen across the board. And in some cases it does. But in two areas that I am a student of and what I'm a practitioner of, sports coverage and coverage of what I cover, which again, people call politics. I just think there's this general, not everybody, but a general lack of sophistication and the gap that I find so troubling as a, as a journalist, but also as a citizen who wants people to be well informed and get good content. The gap is between what the practitioners are actually doing, what they know, whether it's athletes or coaches on one hand or people in who run campaigns and candidates in the other. The gap is events between them and the way they get covered. The way they get covered. It just, it's not sophisticated. It's not telling the real story. And I find on two way or when I talk to people who are fans of nextup that they want sophisticated and that a lot of them are sophisticated. And for some reason which I have never understood and frankly still don't understand, the coverage is dumbed down. The coverage is too often off track from where the real story is. Why is it important to get the real story? Because it's more interesting, it's more real and, you know, more genuine. And in politics and government and campaigns, you want to hold people accountable and you can only hold them accountable and tell the history, tell the story in real time. The so called first half of history, if you're covering what's actually going on. Okay, so let me give you the sports example. Make it a little more concrete for you. At halftime or at the end of a game, on the sidelines or on the field, you'll see a sports reporter ask a question of a coach or an athlete and often they'll say halftime. They'll say, hey coach, what do you need to do to. To do better in the second half or after the game? They'll talk to someone from the winning team and they'll say, what made the difference in the second half? These are inane questions because they're not specific, but they allow the coach or the player to give a name answers. It makes me absolutely crazy. I could show you a million examples. I watch it every Saturday and every Sunday in football and basketball in particular. Here's one example. Here's a coach asked about a momentum shift in a game and how it turned things around on the sidelines. Here it is. I don't even know the coach or the reporter are. But this is just one example. Coach, what a momentum shift. How huge was that Davion Thomas touchdown
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Mark Halperin
heading into the locker room?
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James Rosen
I mean, every play is important in a game like this. So yeah, so the sideline reporter says, what a momentum shift. How huge was that Avian Thomas touchdown heading into the locker room? Stupid question. How huge was. It was huge. Oh, and the coach says, oh, it's big. I mean, every play is important in a game like this. So yeah, so there's nothing there about anything. I mean, there's nothing there that that shows the expertise in the question or in the answer. What you'd really want to know is how did you draw that play? How did you look at the earlier plays? How did you read the defense? How did, how did you. Who called the play? What was the play that was called? How did the play that was called differ from what you actually did. Right. These are all the way a team would talk about it, but for some reason, in the interchange between reporter and participant, it's all dumbed down. Here's what happens in coverage of what I cover. And again, people say, oh, I cover politics. Politics is a thing that does get covered. But to me, politics is speeches and, and, and issues and rhetoric. That, that is not really what people in campaigns do. Politics affects campaigns. But if you talk to a, a candidate who's engaged in, in what he or she's doing, if you talk to someone who's a political strategist, a consultant, a campaign manager, they're in the business of campaigns more than they're in the business of politics. And what is campaigns? Campaigns is get out the vote organizing, using technology, hiring professionals, and building a team. That's a campaign. And in my business, almost nobody covers campaigns or really. And almost anybody in campaigns will tell you this. They don't know much about campaigns to the extent I've had success in my career. One reason is I study campaigns as much or more than I study politics. But they get away with so much in doing things in campaigns that are really not kosher necessarily. And often they don't get enough credit because the people writing about them in media are really just covering politics. Now there's also elections. That's a third thing. That's about the casting and counting of ballots. That's also important to know about. And after the 2000 recount, which we're going to talk to James Rosen about, people in my business learned a lot more about elections than they knew. Every state's got its own election law. Counties have their own ways of doing it. People vote on machines, they vote on paper. Now, in the age of Trump, we learn more about elections, absentee ballot rules, and all of that. But elections are important to know about. And people who run campaigns typically know a lot more about elections, casting and counting of ballots than people who cover them. But it's campaigns themselves, the operation of campaigns, that people just tend not to know about, just as sports reporters seem to not know very much, or at least don't talk very much about how teams actually adjust during games to do better and try to come back if they're behind. You think about reading about politics or campaigns in newspapers and on websites, hearing about it on the news. What are most of the stories about? Most of the stories are about personality. Republicans are angry at Donald Trump because he's not staying on message, or they're about fundraising. So and so raised a million dollars. And that's part of campaigns. But they don't write how the person raised the million dollars. Right. The campaign raised a million dollars because they knew how to use techniques that are part of campaigns. We gotta raise money. How are we gonna do it? The interesting thing to me when I do my reporting is not that they raised a million dollars and the other guy raised 20 bucks, it's how'd the guy who raised a million dollars do it? What were the techniques that they used? The interesting thing to me is not so and so got 40% of the vote and so and so got 20% of the vote, but how'd they get 40, 40% of the vote? I'll say again, I think it's more interesting. I think it's more important for history. It's a better explanation of where, where elections are won and lost. And it requires expertise and sophistication. So here's why I bring this up in a reported monologue. The last couple of weeks, I've been doing a lot of reporting on the midterms. How are the Republicans seeing the midterms? How are the Democrats? And when I read my colleagues coverage, not all of them, but a lot of them, when I read their coverage of this question, what they're really focused on is not campaigns. What they're really focused on is politics. What they're focused on is Trump's off message, or how are the Democrats going to deal with immigration, or what's. What is the effect on the elections of Minneapolis? And there's no doubt that that stuff affects the outcome. No doubt. But inside a campaign, that is part of what they're doing, but it's not the biggest part. And it's not. And it's not, in their view, political professionals, campaign professionals, it's not determinative. What's more determinative is the mechanics of campaigns. And part of why this is such a fascinating story to me and always has been, is because it changes every year, every election cycle, the campaign's ability to be best in class, it changes. And in the age of the digital age, and now in the age of AI being best in class at campaigns, which can make the difference between winning and losing, is a big challenge. And campaigns are very strange beasts compared to other institutions. Right? If you start a company, you're in operation, you keep going. And if you open a Broadway play, you hope it goes for 20 years, but it might end, you know, in two weeks because nobody buys tickets. Campaigns have a particular lifespan through Election Day. Now if you're in a primary, you may not go past the primary, but, you know, the primary is your first hurdle, your first toll gate. And they have to raise a lot of money, and then they have to do their best to spend it all. Right? Sometimes campaigns don't spend it all, and, and they're criticized for that if they lose. But you got to raise enough. So you're constantly having a very short schedule. The staff's all temporary. You know, you build a team, goes through for the general election through November. So we need to raise $40 million to win a Senate seat in Maine. You got to simultaneously raise it while you're hiring people, and then you go out of business on election day. It's a strange business to be in. And the best people in campaigns, the best people at being campaign managers or strategists or ad makers or field organizers, the best people combine, in my experience, experience knowing how to do it historically, but with a massive eye towards adaptability to change, to use the latest techniques and again, technology, and the explosion of technology in every part of life. And now AI makes being best in class in campaigns extremely challenging. Right? You have to be an adapter of the latest stuff. And AI now was not a big deal in the last election compared to what it's going to be like forevermore. So that's one area. But same with the change in the, in the landscape for advertising, right? In the olden days, the way you advertise in a campaign was you buy television ads on broadcast television and you do direct mail. That's pretty much it. You could do robocalls in 1.2, but most of the money was going to be spent on television ads, and some were going to be spent on mail. And now there's a million ways to spend your money on digital and on, you know, even in video ads, you can buy them on broadcast television, you could buy them on Roku, you could buy them on this program, Right? There's all sorts of ways. So running a campaign is extremely complicated. And what separates, as I said, the winners from the losers, the great campaign strategists and operatives from the less good ones, is the mastery of the craft of campaigns, of which politics, as people normally think of it, is just a tiny sliver. So when I do my reporting, as I've been doing for the last couple weeks on the midterms, I'm not asking people, oh, how much will Trump help with turnout or what impact will the economy have on the race? I'm asking them about the behind the scenes the drill down of how are the mechanics actually working? And I'm blessed as a professional with sources in both parties. And my reporting methodology is always to look for the asymmetries who's better at one thing in a meaningfully better way, whether it's the parties or campaigns that are going head to head that's going to allow them to have a good, better chance to win. So I'll give you some examples. And this is from two Way. This is from my program two Way Tonight that aired earlier in the week. And I was so lucky to have on two of the best political professionals I know. One Democrat, Jamie Harrison, he was the chairman of the South Carolina party, Democratic Party, then the chairman of the dnc. He understands politics, but he understands campaigns. And Jeff Rowe, a Republican strategist, he's worked for a bunch of candidates around the country, worked on Ted Cruz's presidential campaign, which is where I think I got to know him best, and runs a big consulting firm. They understand politics, to be sure, but again, they understand campaigns. And I, I spent time with them on the air. And, and the reason I want to show you some of this is these are the conversations I have when I'm doing my reporting lately on the midterms, but through my whole career. Don't ask about whether Trump's whatever. Ask about the mechanics of campaigns. Here's a conversation about technology. Technology, as I said in the digital age has become extremely important. And knowing who has a technological edge, if one does, sometimes there's no edge. Massively important now, more important than ever. Barack Obama won in part because his operation was head and shoulders above John McCain's regarding the use of technology. Part of why Donald Trump in 2016, what he was able to win, was his folks understood how to engage with the, the, the social media platforms. Ironic that in 2020, part of why Trump lost was the social media platforms turned on him in a variety of ways. But in 2016, his team, his crew liaison with the big social media platforms in a way that my reporting back then showed was superior to what Hillary Clinton was doing. So here's part of my conversation with Jamie Harrison, Democrat Jeff Rowe, the Republican, on who's using technology better now and how and why. Roll S1, please. Who's better right now on the use of technology and campaigns for all the things technology is used for, Democrats or Republicans? Jeff? Republicans we are our data, I believe, is surpassed. The van system the Democrats have.
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Mark Halperin
Okay, Jamie, I wouldn't say Republicans on that. There are a lot of things that I know The DNC has been working on to continue to prove data. If Republicans have an advantage, it is a very slight one, minimum one that I don't think will make a difference one way or the other.
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James Rosen
Let's drill down on this because again, just respectful disagreement here, Jeff, Just be more specific. Where do you see the advantage? I believe, I believe it's in the targeting of ticket splitters. So, so Jamie talked about ticket splitters. I think it's probably going to be 7 to 9% of the vote in a general election. Presidential is 150 million people vote. In an off year election will be 100 million people vote. So I think that the ticket splitters, I don't really count independence now because
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Mark Halperin
a lot of people call themselves independents,
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James Rosen
but the ticket splitters are going to be less. And I think our ability to track and target voters on video, which this is the most complicated media advertising cycle I've been in, I hope it goes away quickly. Used to be able to put it up on three stations and you're good and then throw in some cable and you're fine. And now 25% of people, it's not coming back, dude, you're going to have to advertise about 75,000 places on video. Okay, so what are they saying there? They're saying that Jeff is more confident, his party has an advantage. Jamie wasn't assured that either side had an advantage, but Jeff saying specifically on this question of targeting swing voters, right. So now again, they use technology. They have these voter files, right? Data on every registered voter. The information you get differs depending on what state somebody's in. And then they, they put in a big database and they cross reference it with consumer preferences that they get from, from these big voter files. And then they say, okay, I know Joe smith lives at 125 Main street and I know he's a swing voter based on the data that we have, I want him to get to vote for my candidate. So how am I going to reach that person? Digital ads, video ads, maybe even direct mail, right. That's still used. That, that, that's the stuff that campaigns, that's the stuff that's going to determine what happens. And if Jeff Rowe is right, and I believe he is with respect to Chairman Harrison, if Jeff Rowe is right, that the Republicans are currently superior in data and there's a variety of reasons why that might be true, they're closer to Silicon Valley than they've been probably ever. And that produces a lot of access to X data expertise. They control the White House, which gives and the rnc, which gives them more ability to kind of be coordinated. And they have just a lot of people in the party now at senior levels, including the Trump political team, who believe in data, who believe in the importance of that, mobilizing voters to persuade them how to vote and to get them out to vote using technology that's as big as anything. Now, the fundraising matters because you got to pay for all that. But if you're raising a lot of money, but you're spending it poorly and people argue that's what the Clinton, Clinton campaign did when they lost to Trump, that doesn't help you. Okay, so just embedded in that short clip and you go listen to the whole episode on two way embedded in there is what I'm talking about. Those are two campaign professionals discussing how campaigns work. Here's another one. This is I asked them the question on same thing. Is there an asymmetrical advantage on social media content in the whole red versus blue EcoStruxure, not just the campaigns or the party committees, but their allies outside. Does anyone have an advantage there? This is S3, please. Who do you think has the advantage on social media again? Red team, blue team, who's got better game on social right now? Tik Tok, Instagram, Facebook, which is still big with voters. LinkedIn, who's. Who would you say is more creative, does more to win elections on social?
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Mark Halperin
Republicans in the last election cycle show that they definitely had an advantage over Democrats in terms of how to navigate social media world and, and connect with voters in that space. Definitely Democrats are trying to catch up and again, companies like Ryegrass are helping in that space. But Republicans would advantage, I think degree
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James Rosen
Republicans have the advantage on, on the content side of social creativity. And yes. Yeah, maybe not the audience size yet outside of Trump, but yes. Yeah. I'm going to assume you both agree with me that podcast, the podcast space and video podcast space, Republicans have the advantage, right?
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Mark Halperin
Yes.
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James Rosen
Yeah. Okay. All right. So if you're thinking about the midterms, and again, this is all part of my reporting on the midterms, you look at history. Republicans should lose, lose a lot of seats, lose the majority in the House, maybe in the Senate, because that's what's happened historically. And President Trump's approval rating is at a level which normally would cause the president's party to lose a lot of seats. But then you look there, just at that brief clip from my conversation with two political pros on campaigns. Three asymmetrical advantages for Republicans. Two they agreed on one I'LL break the tie and say, Jeff Rose, right. Republicans are better at using technology to get at the vote. They're better on social media content. They're better on, on podcasting. Those are in the age in which we live, if you have advantages in those areas on a campaign, big advantages. That's why so many Republicans continue to believe that if they can get the president's approval rating up, if they can improve voters perceptions of the economy having to do with politics, then their campaign apparatus, again, the whole red side of the thing, those are big advantages to have. If you think about all the political content you've consumed, and many of you consume a lot of political content just in the last couple months, you haven't read much about that, right? There's just or heard much about that on TV or on podcasts or, or on YouTube. It's just for some reason, just as sports reporters tend to not ask the right questions of coaches and quarterbacks and other players, for some reason people in my profession, not everybody, there's some exceptions that folks I admire do it right. There's not a lot of coverage of campaigns and campaigns are more determinative than politics about who wins and loses, who represents us, what the government ends up doing. So I'll continue to cover campaigns and the mechanics of this stuff. For some of you, maybe it's a little wonky, maybe, maybe it's too inside, maybe you don't want to see behind those curtains. But if you care about who's going to win the midterms, and we'll keep talking about that, and so many of you do focus on campaigns at least as much, or I would argue more than politics. This is the, this is what has allowed me in my career to understand stuff. And I can't tell you how few reporters even think this way. And every time I talk to anybody who works in a campaign and I express the least bit of appreciation, the least bit of understanding of these asymmetries, they're all, they're always very appreciative and gives me a little bit more time with them because they want to be appreciated for what they do and what they're good at and what they're trying to excel and what they're trying to create these asymmetrical advantages in. And for most of them, that's not politics, that's campaigns. All right, that's it for the day of reported monologue. Curious to know what you think of it. Send me an email nextup halpernmail.com Let me know if you See my my distinction between politics and campaigns. Keep the conversation going as always, you can get the full picture of what I do here. Literally subscribe at our YouTube channel. Watch the show. Don't just listen to it at NextUp. Halperin on YouTube if you like to listen on the go. You like the podcast version? Don't care to see if my shirt has any mustard stains on it. You can listen to us wherever you get your podcast and always please share the program. Tell People you love NextUp, you're a Nexter and you'd like them to think about it. To turn your downloads on wherever you get your podcast. We want to build, build, build towards November. We want the community grow bigger and louder and more engaged. Please, all of you, send at least one person you know the link to today's show. Whether the podcast Link or the YouTube link. If you want to send it to more than one, do. But I will consider you to have not supported the show sufficiently. If you don't send it to at least one person you know and tell them that they need to know the difference between politics and campaigns. Let's make the Nexter community as large as possible in 2026. All right, a quick break and then next up when we come back, James Rosen, chief correspondent in Washington for Newsmax and the author of a fascinating and well received new book about Antonin Scalia. James Rosen is next up. All right, now I'm going to ask you something. Do you own physical gold? Most people don't, and given the current state of the world, this is something worth thinking about. Acre Gold makes it all very simple. You pick a plan that fits your budget, you make monthly payments, and when you've accumulated enough, they ship you a beautifully designed 24 Garrett Swiss Gold Bar Gold. It's up 70% year over year, and central banks, they're still buying it at record levels. Smart money has been moving into hard assets for a very good reason. It's legitimate. They've had subscribers stacking consistently for six years now because once you hold it in your hand, you understand the difference between owning something real versus just a number on a screen. Right now they're giving away two 5 gram ancient collection gold bars. Enter to win one for free and subscribe to get gold at getacregold.com mark that's getacregold.com mark packages by Expedia. You were made to occasionally take the hard route to the top of the Eiffel Tower.
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Mark Halperin
We were made to easily bundle your trip Expedia Made to travel Flight Inclusive packages are atoll protected.
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James Rosen
Hey, this is Will Arnett, host of Smartless. Smartless is a podcast with myself and
- [28:32]
Mark Halperin
Sean Hayes and Jason Bateman, where each
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James Rosen
week one of us reveals a mystery guest of the other two. We dive deep with guests that you love like Bill Hader, Selena Gomez, Jennifer Aniston, David Beckham, Kristen Stewart and tons more.
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Mark Halperin
So join us for a genuinely improvised and authentic conversation filled with laughter and newfound knowledge to feed the smartless mind. Listen to Smartless now on the SiriusXM app.
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James Rosen
Download it today. All right, next up and joining me now, a Renaissance man. You know, I have so many journalistic colleagues these days, and I didn't put colleagues in air quotes, but I might have who, you know, they might be able to do one or two things well, but maybe not any. And if they are on television, typically the longest thing they'll write is a script of a minute 30. And these days there aren't even a lot of scripts. They're just blabbing live on the air. I'm so impressed by James Rosen, I always have been because he's a great television correspondent and not just a presenter, but a great reporter, an actual reporter. And he's a fair minded. If you watch him cover the White House for Newsmax, you saw him hold Joe Biden accountable, you see him hold Donald Trump accountable and all the people in the White House, the very few White House correspondents these days who hold the president and the White House to account regardless of party. Very impressive. He's also a brilliant mimic and Beatles expert and we'll get into that. And the Beatles thing's significant to me because when James decides he loves the topic, he digs in deep. He goes, he goes all in. And I find that attractive in people who are journalists because you need to be a generalist. If you cover the White House, you got to be an expert on national security, you got to be an expert on the economy, you got to be an expert on civil rights policing. So you need to be a generalist. But you also want people who have the interest and the discipline and the mental capacity, the intellectual curiosity say, I'm going to know everything about this. So we're going to play some Beatles trivia here later. But first we're going to talk about James's book. And that's the last piece I want to tell you. This guy has written many books and there and he takes important topics and he writes narrative nonfiction that makes it cinematic, that makes a compelling character and a compelling story. And add in the great history of it his, his encyclopedic knowledge of Watergate is fueled by his intellectual curiosity, but also by old fashioned shoe leather reporting. He spends time in archives, he spends time online. He finds the story with an eye for detail that puts it all together. The arc of history, individual characters who are compelling and then a real sense of bringing you back into a place and time and in the culture we live in now. When a 10 year old tweet for many is considered too old to read, understanding and appreciating American history is extremely important whether you're an adult or a child. And so I'm grateful for the chief Washington correspondent of Newsmax, James Rosen, also the author of a book, two books so far, two of three in a series about one of the titans of the last hundred years in America, Justice Scalia of the Supreme Court. The books are called Scalia. The first one dealt with his career in his life before he joined the Court. The new edition deals with his the first part of his time on the United States Supreme Court, where he has been as influential in American life as arguably anyone else, with the possible exception of our presidents. Next up right here now, after an intro longer than many cable news segments, James Rose. James, welcome and congratulations on the book and thank you for being here.
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Mark Halperin
Mark, thank you. That was so generous. I'm tempted to just end the segment right here and just leave it.
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James Rosen
Well, you could tell your, you could tell your family. There's at least someone who appreciates you.
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Mark Halperin
My wife will need to see this segment for sure.
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James Rosen
Justice Scalia, again, there are people watching the show, listening to the show who say, well, of course I know all about Justice Scalia and I'm sad to say because I like our nexters to be considered well informed. There are people here who probably only have a hazy understanding of, of him. So busy as you are, as many books as you've already written and as much as you are interested in other topics, what is it about Justice Scalia that makes you want to write over years a three volume biography of him?
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Mark Halperin
Well, Mark, I regret to, I'm ashamed to tell you that this, this book began its life as a concise biography of Antonin Scalia. That was the vision the publishers and I originally had, that it would be the kind of book that would acquaint readers with why Scalia was important and you could probably knock it out on a long plane ride. But as, as you know, and certainly as Mrs. Rosen would attest, I don't do anything concisely. And So I wrote 170,000 words, which is about 20,000 words longer than your average nonfiction book. And I'd only gotten the man to the point where he sits down in his chair on the Supreme Court. So we decided that it would be a two volume project and the second volume would take you from his sitting down in the Supreme Court to the end of his life. And I wrote 183,000 words. And I'd only gotten the man through the first half of his tenure on the Supreme Court. So that's volume two that was just put out this month. It's called Scalia Supreme Court years 1986 to 2001. It takes you from his first day showing up for work at the Supreme Court. And in one of his private letters that I reviewed and I published in the book, he says that the Justice's first conference. This is the closed door meeting where the Justices get together, just the nine of them in the room in this ornate book lined, long conference table setting. And the Chief justice goes around the table and they decide how they're going to, they tell the other justice how they're going to decide the cases that they've just heard an oral argument. And Scalia in a private letter said to a friend that at his first conference, he being the junior justice, they come to him last to say how he's going to vote on the cases. And the moment it was, it was his turn to speak. He said, I felt like a character in a Woody Allen movie. So it takes you from his first days on the court up through the national trauma of Bush v. Gore. Why did I want to write about Antonin Scalia in the first place? I watched him on television when I was in high school, participate in these PBS debates that were moderated by Fred Friendly. And they were a theater in the round setting with a live studio audience. And they would convene eminent minds of the time, Dan Rather, Sandra Day o', Connor, Antonin Scalia, Gerald Ford, and the moderator would lead them through kind of hypothetical scenarios about a ticking time bomb, terrorist scenario or what have you. And Scalia just immediately struck me as fundamentally different from the other panelists. He had a sense of humor that was often wanting on PBS programs. In fact, his sense of humor was sarcastic. And I could recognize him as a fellow outer borough New Yorker. Although Scalia was born in Trenton, he moved to Queens at 5 and always considered himself a New Yorker first and foremost. And we had that same kind of accent. And because I'm from, I was born in Brooklyn but raised on Staten island and all outer Borough New Yorkers have a slight chip on their shoulder because they're looked down upon from Manhattan. And I just found him fascinating and funny and brilliant. And I said, someday I'm going to interact with that man. When I came to fox news in 1999 to start my career in Washington, Fox had no one covering the Supreme Court. So I just wrote him a letter and on Supreme Court stationary he wrote back to say, I'm a fan of the Fox News channel. It was 1999, the channel was only two years old. There's the ratings dominance was still years away. Most, most people were confusing Fox News at that time with Fox 5. And when I showed the letter on Supreme Court stationary to Brit Hume, I remember him being flabbergasted, the both of us, you know, wow, a justice actually is a fan of Fox News Channel. But he said no because he said he had a policy as a judge not to make a spectacle of himself. So I knew I had grounds for an appeal. Mark I wrote him back and I said, what other than a spectacle should we call it when a sitting Supreme Court justice convenes with other eminent minds in a studio theater, in the round studio setting with PBS cameras present to debate hypothetical scenarios? And he wrote back to me again on stationary and he said, you are right now, right there. I think I had as a non lawyer at the age of 30, I had extracted from Antonin Scalia a concession that I think many of his clerks never did and maybe some of his children never did. And he said, I probably should not have done the Constitution, that delicate balance. So we agreed to meet for lunch and we had two lunches together. It's invaluable for a biographer to actually have spent time with the subject. And I had two, one on one lunches with Antonin Scalia in 1999 and 2001. And we also carried on fairly amusing correspondence. And there's a chapter in this book called the Rabbit. And this chapter recounts my lunches with Nino, so to speak, and my, my correspondence with him. And the, the lunches were off the record. I typed out lengthy memoranda to the file mark recounting everything we talked about. And it was very wide ranging, historical, current, but off the record. I'm not going to disclose the contents of the lunches, but with the dispensation of the Scalia family, I've been allowed to tell some of the atmospherics of those lunches. And the reason it's called the Rabbit is I got there first. This was an old and frankly very Modest Italian restaurant that he loved, which is no longer with us, called the Av Ristorante Italiano. There were plastic grapes on the wall. He'd been going there since the 50s, and he had a kind of Jackie Gleason grandiloquence about him. And he shows up. He thanked me for being punctual. He took off his jacket. The waiter hands on the menu. He goes, pulpy. What is pulpy? And the waiter was a young Italian guy, barely spoke English. He said, octopus. He goes, octopus. I'll have the pulpy. And he hands back the menu with a great gesture of flourish. And, you know, I'm 30 years old. I'm not a lawyer then or now, you know, I'm in way over my head. I'm meeting with one of the most towering intellects of our time. I have had some experience with powerful people before that, so I knew I had some rules. Don't eat anything that requires you to eat with your hands. Don't get anything that splatters or splashes on him or you. Something easily manipulable with knife and fork. As I mentioned, I'm from Staten island, so I know Italian food. I said, I'll have the veal parmesan. The guy's writing it down, and Justice Cleese says, no, give him the rabbit. And the waiter and I look at him in unison. We say, rabbit. He goes, yeah, he's gonna like. You're gonna like the rabbit. Give him the rabbit. And the guy takes the menus and walks off. Now, I'd never had rabbit in my life. I didn't want to have rabbit. I was grossed out by the thought of having rabbit. I wondered in my mind, do they serve it with the head still attached like some fish? You know, I had no idea what was happening. And, you know, I haven't had rabbit since. But what's amazing about this moment, Mark, is that here you have the country's foremost opponent of judicial activism overruling my lunch order, which is something Mrs. Rosen doesn't even do. And I had to sort of struggle through it and just keep maintaining eye contact. You know, we knocked back wine. He made me eat off vegetables off of his plate. I said, Mr. Justice, no, I couldn't. He said, no, no, no. And so I. So I had to shovel Antonin Scalia's vegetables off of his plate. And he drove me back to Fox in his own car, smoking cigarettes. It was just an extraordinary couple of experiences. And I said, someday, when he died, I said, maybe I'll write something about him. I Thought maybe it'd be a law review article or something. And here we are on volume two.
- [39:29]
James Rosen
Amazing. And again, just to have spent time with someone who's one of the most important figures in the modern conservative movements. Quite a thing. Let's just lay down some basics for people who are need Scalia 101. What year was he born?
- [39:43]
Mark Halperin
Scalia was born in 1936, died just over 10 years ago in 2016.
- [39:48]
James Rosen
Okay, and what did he do before he was put on the Supreme Court?
- [39:53]
Mark Halperin
So Scalia was the son of an immigrant, a Sicilian immigrant who came here with $400 in his pocket and not knowing a word of English and who made himself into a professor of Romance languages. His mother was a first generation Italian American, the daughter of immigrants and a teacher as well. He was an only child. He was doted upon. He was valedictorian at his high school, which was Xavier High School in New York City, which was then an unusual hybrid of a Jesuit academy and a military academy. He then went to Jesuit college, Georgetown University. He was valedictorian there as well. And then he went to Harvard Law, graduated top five, practiced private law for six years at Jones Day out in Cleveland, then came east to teach at University of Virginia law School for four years during the turbulent 60s. And then begins his government career in 1970. He's named the general counsel of a newly created institution created by the Nixon administration called the White House Office of Telecommunications Policy. All of this is covered in volume one. And his work at OTP had never been examined in any detail by any of his previous biographers. And it's fascinating stuff. And I was the first to go through those archives. And they showed that Scalia and the chairman or the director of the White House Office of Telecommunications Policy in the early 70s, they were throwing around terms that wouldn't escape the lips of ordinary Americans for another quarter century, like shared mobile networks and mobile phones and so forth. And Scalia wrote a paper in 1971 for the agency in which he called the Computer Society, in which he absolutely 100% predicted the Internet, talking about how people would sit at remote terminals in their homes, conduct banking, have hundreds of television channels, would have news printed out as facsimile news editions and so forth, access to libraries around the world. He also raised the attended privacy concerns in that paper. Then he serves briefly.
- [41:47]
James Rosen
Let me, let me stop you there. Why did he want, why did he go into the government? Any idea?
- [41:54]
Mark Halperin
It was a good offer. And you know, Scalia was a political animal.
- [41:59]
James Rosen
Was he ambitious to be attorney general or to be a judge at that point.
- [42:05]
Mark Halperin
So it's interesting, he was asked once by his lifelong friend Brian Lamb, who worked with him at the White House Office of Telecommunications Policy in the early 70s. One of the few interviews he did on C span early on 1982, before he was even appointed to the Supreme Court. And if you knew the two men, you could read between the lines and see that they were kind of needling each other. And Lamb asked him, when did you first want to become a federal judge? He was a judge at that point on the Court of Appeals. And Scalia stammers through an answer, saying, well, not until it was offered to me. And then 10 months later, as a justice, he tells an audience in New Orleans that he had the ambition to be a federal judge. As early as 1960, in my research for volume one, I came across. I found a. Someone named Father Bob Connor, who's still with us, who attended Xavier with Scalia in the early 1950s and who was one of his dear friends at that time. And in. In 1959, when Scalia was in Harvard Law, he gets a call from. From Bob Connor's mother, says, could you please come talk Sentinel into my son. He's just quit medical school and he's flying off to Rome to join Opus dei. And this story had never been published until volume one. And Scalia shows up, and he says, what are you doing? And. And his friend Bob explains to him they had gone on double dates together, they had played hoops together. They were in the marching band together. They knew each other well. And. And Bob Connor's father used to watch Scalia as a student on television in the 50s on quiz programs which don't survive, unfortunately. But he used to say to his son, oh, you missed it. Scalia really gave it to him again this week. The man, the kid had fans as a teenager in the 50s. And Bob Connor says, look, I'm going to go study Opus dei. I said, did he understand what Opus DEI was? Because Scalia was a very devout Catholic, he said. I explained it to him, and he said, okay. And then Bob Connor, destined to become a priest, says to Scalia in the summer of 1959, what are you doing? And Scalia said back to him, I'm going to the Supreme Court. And Connor says and says, how are you going to do that? He says, I'm going to work for this law firm, Jones Day. They have a Washington branch. They will. I will be sent to Washington, and I will rise. And so that settles forever. The what had been an outstanding mystery of Scalia's life as to when he first harbored that ambition. So, yes to your question very early on.
- [44:17]
James Rosen
All right, we're talking to James Rosen. He's the chief Washington correspondent for Newsmax, Author now of two of three planned volumes on Justice Scalia of the Supreme Court. I want to get to volume two, but, so just tick off for me. We now have him in the Nixon administration just take off his jobs that he had got it from there. Just the jobs from then to being nominated to be on the Supreme Court.
- [44:38]
Mark Halperin
So 72 to 74, he serves as the director of something called AUS the, which is the administrative conference of the US which is a kind of a quasi public, quasi private think tank that, that advises the federal government on how to streamline operations.
- [44:54]
James Rosen
All right, what next?
- [44:54]
Mark Halperin
Then, then he becomes Assistant Attorney General of the United States for the Justice Department's Office of Legal Counsel. It's the same job that Rehnquist had held previously. Yeah, and then, and, and, and from there he. When ford loses the 76 election to Jimmy Carter, Scalia goes back to academia, University of Chicago Law School and AEI and waits out that that interregnum between Republican presidents. President Reagan, in due time, nominates him to serve on the Court of Appeals for the District of Columbia Circuit, the D.C. circuit, often described as the second most powerful court in America because it's docket so heavily shapes the work of the Supreme Court and so many justices are plucked from the ranks of the D.C. circuit. When Scalia was there, his colleagues, his robed colleagues on the D.C. circuit bench included Ruth Bader Ginsburg, Robert Bork, Larry Silberman, Kenneth Starr, Jim James Buckley. It was just a murderer's row of talent. And then he is nominated by President Reagan to serve on the Supreme Court in June 1986 and he's confirmed by the Senate, 98 to nothing.
- [45:57]
James Rosen
All right, so which of course would never happen today. So in, in 86, he becomes a Supreme Court justice and he's the Supreme Court justice for how many years?
- [46:07]
Mark Halperin
The next 29 and a half terms until his death on a hunting trip in Texas in February 2016.
- [46:12]
James Rosen
All right, so your book, the new book, covers the first portion of the almost 30 years that he's on.
- [46:18]
Mark Halperin
The first half.
- [46:18]
James Rosen
The first half, yeah. And, and explain how you make a Supreme Court Justice a towering intellect, but who operates, you know, without a lot of public comments. How do you turn him into a compelling character for an audience that's not interested in a stuffy legal book? How do you bring that to life in your process and in your writing?
- [46:39]
Mark Halperin
I'm glad you asked. And it's an important point. This new book, Scalia, Supreme Court years 1986 to 2001, covering the first half of his extraordinary and momentous tenure on the Supreme Court. This is not a book just for lawyers. This is for everyone. I'm not a lawyer, and I wrote it. And when I was rereading what I had written for the process, the editing process and putting it out, I found myself cracking up because Scalia himself was such a hilarious man and so gifted and witty. So this story, how do you make him human? How do you make it come alive, the law? The answer is you tell it like a novel. You create, just as Tom Wolfe used to advise. You create scenes, you tell vignettes, you use dialogue wherever possible. These literary techniques apply to any stuffy subject, can make it come alive. And all the reviews that are out so far talk about how this book reads like a novel and how it's. You couldn't put it down and it's funny as hell often. And I alternate between the case law and the judicial philosophy, which is why he was so important. I assume we'll get to originalism, which has to be explained, but. And the cases. The cases are all there up right up through Bush v. Gore. But I alternate with what's going on in Scalia's faith, what's going on in Scalia's family, what's going on in Scalia's appearances at. In public events. There's the Rabbit chapter, which we discussed. There's one chapter talks about, and this had never been disclosed before, how Scalia tried hard to get a Wall Street Journal reporter fired in the 1990s after that reporter published an unflattering profile. And there are his relationships with the other justices. The relationship with Ruth Bader Ginsburg is best known, and in the first volume, I used her papers to show the beginning and the origin of that relationship, how they cavelled over each other and kibbed with each other and needled each other in their own words from Ruth Bader Ginsburg's papers, from her time on the D.C. circuit. And you can really see the friendship flourish in this new volume when they are doing operas together and they're riding elephants together. But the relationship with Clarence Thomas goes even deeper than the relationship with rbg. After Thomas's ordeal, just to get confirmed, the outstretched hand he found on the court was Scalia's. And the relationship with Sandra Day O', Connor, which ruptured after Scalia in 1989, wrote in one of his opinions that OConnor's writings, quote, cannot be taken seriously. And there's a whole chapter about the, the confrontations between the court's first female justice and its first Italian American justice. So we make it come alive through bringing you the man, the devout, the devout Catholic, the father, the husband and, and the colleague. And I think from the reviews I'm reading, people are enjoying it.
- [49:16]
James Rosen
Yeah. We're talking to James Rosen about his new book about Justice Scalia. Go on the Amazon page for the book and you'll laugh at how favorable the quotes are from about 70 people from all walks of American life talking about, as James said, what a great read it is. And it is, but it's a book. It's an important work of American history as well. We're going to take a quick break. When we come back, we're going to talk about why this charming, loved, lovely, brilliant guy is such an important figure in legal history because of his view of how justices and judges should judge and rule. Next up, more with James Rosen about his book on Antonin Scalia. Scalia right after this. Are you being lied to? They tell you you should max out to your 401k and your IRA and then they make you beg for permission to use your own money. It's time to get the truth and discover a better way to grow and protect your money. Bank on yourself is the proven retirement plan alternative that the big banks in Wall street desperately hope you never hear about. It gives you guaranteed predictable growth and retirement income even when the markets tumble. Your principal is protected, your growth is locked in and under current tax law, your retirement income can be tax free. You're in control with access to your money for emergencies or when opportunities come up with no questions asked and no government penalties or any restrictions. Even when you use your money, it keeps growing like you never touched it. With built in inflation protection, your savings grow every single year. So you'll always know the guaranteed value of your retirement and have real peace of mind. You can get a free report that reveals how you can bank on yourself and enjoy tax free retirement income, guaranteed growth and control of your money. Just go to bankonyourself.com, and get your free report.
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Mark Halperin
Again.
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James Rosen
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Mark Halperin
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James Rosen
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Mark Halperin
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James Rosen
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Mark Halperin
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James Rosen
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Mark Halperin
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- [51:55]
James Rosen
Terms apply. All right, next up, more with James Rosen, author of a new book, second of the three volumes. Plan on the life, the personal story and the legal Life as almost 30 year career in the Supreme Court of Justice Scalia, one of the most important figures, along with people like Ronald Reagan and a handful of others who have shaped the modern conservative movement from an unlikely place, perhaps from the courts. James, thank you again. Congratulations on the book. Talk about why Justice Scalia's legal philosophy is his view of the Constitution, his view of a co equal branch. Talk about why that makes him such an important figure in American history.
- [52:38]
Mark Halperin
So a reminder, this new book, Scalia Supreme Court years 1986 to 2001, covering the first half of his nearly 30 terms on the Supreme Court, is not just for lawyers. But of course it is. And honestly, it's not just for conservatives. Scalia is not just one of the most important Supreme Court justices. He is one of the most important Americans beyond any particular movement in American society over the last hundred years. And why is that? It's because of the philosophy that he brought to being a judge. What is the central business of judges and Justices? They tell us what the law means. They interpret the law and tell us what it means. Very simple. And when Scalia joined the federal bench in 1982, there prevailed in American law a liberal notion called the living Constitution. This is the idea that when we interpret the Constitution, it should be a kind of a living, breathing, expanding document, that its meaning can be expanded by latter day judges interpreting it to account for phenomena that the founding Fathers never could have anticipated, such as nuclear weapons or the Internet. And in order to breathe this expanded meaning into the the enduring text of the Constitution, liberal judges, those who believe in a living Constitution construct, relegate the text itself to secondary status. And they look for the intent behind the law. What was the lawmaker's intent? And to find the lawmaker's intent. Again, they bypass the text of the law, and they look back at the legislative history of the law, what was said in all of those House and Senate floor speeches, what was said in those committee reports. And Scalia stood athwart all of that. Scalia felt the Constitution is neither living nor dead. It is an enduring legal text. And if you want to know what the Founding Father's intent was or the intent of any lawmakers responsible for enacting any given law ever since the Constitution, all you have to do is look at the text of the law. Nobody voted on a floor speech or a committee report. They voted up or down on a text of the law, and that was either signed or not signed. And when looking to do the business of a judge, Scalia argued he didn't want latter day judges, through some expanded, elastic interpretation of the text, to graft their personal policy preferences onto that text. He thought that that was a way where judges gave themselves more power. And the judge, in Scalia's view, the honest judge or justice, will limit himself to the original meaning of the Constitution or a given law. That's called originalism, the meaning that that law or that provision was widely understood to have when it was enacted. And to find the original meaning of a law, Scalia practiced what he called textualism. Textualism is the metal detector, to find the original meaning of a given statute or phrase in the Constitution or any statute. And if the text was ambiguous, and often it is, then Scalia looked to historical tradition. So you take something like abortion in this country. And as early as 1978, then Professor Scalia was appearing on PBS to denounce Roe vs Wade as the embodiment of an imperial judiciary. If you can't find abortion a right, a constitutional right to an abortion in the text of the Constitution, then you should be able to find at least that there was some historical practice protecting or historical tradition protecting this practice. And in abortion, that was absent as well. And that's why he favored returning the regulation of abortion to the states, as was eventually done in In Dobbs. So originalism and textualism were kind of radical notions, fringe notions, when Scalia came along. By the time he died, thanks to his evangelism on behalf of these philosophies and approaches, both on and off the bench. And he was a tireless speaker at events year in and year out, no less a figure than Supreme Court Justice Eleanor Kagan, who was an appointee of President Obama, pronounced that in effect, as a result of Scalia's counter revolution, which changed the way we draft the law, we argue the law, and we decide the law in this country on all subjects, from criminal procedure to regulations from the federal government and everything in between. Even Justice Kagan said, as a result of all that, we are all originalists now. That touches every area of American life today.
- [56:58]
James Rosen
Absolutely. It's just, again, these are not stuffy legal issues. These are the stuff of American life, of business and families, the relationship between the states and the federal government. There's so many great stories in the book. I want to talk about one issue. I met Justice Scalia twice, only briefly, and you could see in medium, in person, anyone who had met him larger than life and in a slightly different era in Washington, the ability to be close friends with somebody like Justice Ginsburg, who he was ideologically different from. I want to talk about Bush versus Gore, which. Which is the way you deal in the. This is the dividing point between this volume and the next. Because. Because almost everyone I know who knew Justice Scalia on the right, who admired him, said, you know, very principled guy believed in a very clear, principled way of judging rather than on politics. I consider Bush versus Gore to be one of the decision to be one of the biggest abominations for anyone who wants to contend that the justices are not result oriented. All five Republican nominated justices voted to give George Bush the presidency. All four liberal justices voted no to defer to the state court in Florida. What Justice Scalia and his four colleagues did was they said the Florida Supreme Court said there should be a recount, and they said, no, the federal government's going to tell Florida how they should run this election in their state. That is antithetical in my understanding of the law, and I'm not a lawyer either, but I've studied this case a lot. It's antithetical to what I believe Justice Scalia would normally say, which is normally he'd say defer to the states. The federal court should not tell Florida how to run their election. How did he defend that decision? How do you explain that decision? Except for their politicians, even he thought of as this high principled guy was a politician in a robe who said, we're going to give the Republican the presidency.
- [58:48]
Mark Halperin
So the last two chapters of this new book, Scalia Supreme Court Years 1986-2001, deal with Bush v. Gore, both one chapter about the legal wrangling and the legal outcome, and then the final chapter of the book about. Is about the perceptions of the case and its impact and how the perceptions of Antonin Scalia and the Supreme Court were never the same after Bush v. Gore. So a brief history here. The 2000 presidential election featured Texas Governor George W. Bush, son of a former president, as the Republican nominee and sitting Vice President Al Gore as the Democratic nominee. And as Election Night 2000 wore on, it was clear that the race was so close that neither candidate had clinched the Electoral College to win the presidency. And it all came down to the late balloting that was still coming in in Florida, which had, I think, 25 electoral votes back then. And it became clear that whoever won Florida was going to win those electoral votes and win the presidency. At one point on election night, Vice President Gore telephoned Governor Bush to concede the election, and then, on the advice of his aides, called Bush back a few minutes later to say, I am retracting my concession. Florida is too close. And this commenced a maelstrom of legal wrangling that went on at county and state and federal courts up to the Supreme Court for about two to three weeks. And people forget, Mark, that Bush v. Gore actually reached the Supreme Court twice. The first case that reached the Supreme Court was called Bush v. Palm Beach County Canvassing Board. And then it came back a second time as Bush v. Gore. And all of this happened on such a compressed timetable for the Supreme Court. Ordinarily, they get months to consider their decisions and how they're going to rule and hear all of these. They had to hear oral arguments and. And exchange drafts and issue rulings within, like, a weekend at certain points. And basically, you've omitted from your introduction of this, Mark, a very important fact. You said that it was five to four, the five Republicans in the majority, the four Democrats in the minority, to hand the election to George Bush. That's not exactly how it went down. What happened was when the first case, Palm B. Bush v. Palm beach, reached the Supreme Court, they sent it back down to the Florida Supreme Court, which was dominated by Democratic justices in Tallahassee, for additional considerations, if you will. It's called a remand. And the Florida Supreme Court then issued another ruling ordering more recounts. What was wrong with the recounts was that a ballot, a ballot can be organized one way in one county in Florida, and the ballot is structured a very different way. And the rules for counting ballots and trying to discern voter intent, if they didn't quite push out the little chad, and that gave rise to the term hanging chads, that could disadvantage the resident of one Florida county over the other if. If they lean a little forward, right, it could.
- [61:45]
James Rosen
And that's an equal protection argument that the voter in one county should be treated. But that's something that traditionally a liberal justice would say. Washington needs to tell Florida, you're treating the voters of county A different than the voters of county B. Historically, that would not be a Scalia position.
- [62:03]
Mark Halperin
So the Florida Supreme Court, after receiving that remand, effectively ignored it and just did not even reference that they had received a remand from the Supreme Court and ordered a very expansive series of new recounts. What also was omitted? So two things were omitted from your introduction, Mark. One is this is not just a matter of federal deference to the states, known as federalism, of which, as you properly note, Scalia was a champion. We're talking about a federal election for the highest office in the land. And both the state laws in Florida and the US Constitution carried very specific provisions imposing deadlines for meeting the requirements for the Electoral College vote to be certified. That's why January 6th is such an important date. The roll call of the Electoral College has to be certified on that date due to federal law. The other point that. And so once the Florida Supreme Court just ignored the Supreme Court's remand, and
- [63:08]
James Rosen
just because they were a bunch of liberal Democrats pretending to be judges once
- [63:12]
Mark Halperin
they did that, the Bush team appealed immediately to the Supreme Court, and that's the case, Bush v. Gore, that reaches them. And in granting cert and agreeing to hear Bush v. Gore, the Supreme Court announced, and this was Scalia's contribution, really, to the whole Bush v. Gore thing. Otherwise his role has been largely inflated and twisted. He announced publicly that in granting cert and hearing Bush v. Gore agreeing to hear the case, the justices have determined that. Mr. That Governor Bush has a high probability of succeeding in his appeal.
- [63:47]
James Rosen
Yeah.
- [63:48]
Mark Halperin
Okay. So ultimately, here's the other fact you left out, Mark. The justices ruled 7 to 2, 7 to 2, that the Florida Supreme Court was not obeying the state laws or the federal constitution. That's true in how these, in how these recounts can happen and what timetables have to be met. It was five to four as to what should be done about that. And four of the, the four liberal justices said, well, let's send it back to the Florida Supreme Court.
- [64:15]
James Rosen
Yeah, ask them to do it.
- [64:16]
Mark Halperin
Five Republicans said, no, we' tried that and they ignored us. And this process needs to end. It's an equal protection violation and so forth. So, you know, I think the case is popularly misunderstood in many respects.
- [64:29]
James Rosen
All right. I'll never believe that Scalia did anything but vote politically, as all the Justices did. Here's the question I wanted to ask him. I was once at an event where he was taking questions and I raised my hand desperately. I didn't get called on. How would he answer this question? Very big tenth Amendment guy, very deferential to state power, not a big supporter of gay rights as something that should be created by the courts. If the state of Delaware wants to pass a law signed into law by the governor of Delaware that gay people can't ride on public buses, should the federal Supreme Court strike that law down, how would he have answered that?
- [65:05]
Mark Halperin
Well, first, I have a handy trap door for such questions. You know, when I was promoting the first book, I appeared on a lot of right wing radio programs where the host might say something like, all right, so James Rosen, how would Judge Scalia have felt about the J6 hostage? You know, and my handicraft door is that since we've just explained that his great contribution to American society and history was originalism, which, which looked at a scans at latter day judges grafting their own latter day policy preferences onto existing legal texts, I think I can be forgiven for passing on, on imputing to Justice Scalia, who left us 10 years ago, particular opinions on particular cases, events
- [65:43]
James Rosen
and perspirations based on how he ruled. But based on how he ruled on other cases.
- [65:47]
Mark Halperin
Yes. So one other case that's covered in the book is the Romer case out of Colorado where a one municipality, I think in Colorado. No, there was, it was an amendment to the state constitution that the voters approved in 1996 that denied homosexuals, as they were called in the law at the time, any special protective status. And a number of individuals, including Martina Navratilova, sued to challenge that policy. And Scalia held the view that the state had the right to enact that provision. And in oral argument it was Ruth Bader Ginsburg, Justice Ginsburg, who posed the question. And this turned out to play out in many cases in the future where you have people baking a cake and who want to refuse to serve, let's say a gay couple getting married. She asked, can a hospital refuse to allow a gay person access to a life saving technology, let's say. And so Scalia lost that case. But perhaps that would give us some indication of that, would respond to your hypothetical.
- [66:56]
James Rosen
Yeah, all right. I wish I'd have been able to ask him. I want to. The little time we have left, I want to demonstrate two of your extraordinary talents. One is mimicry. You and I are just huge fans of the capacity to imitate. I Do a great Al Gore, but it requires two martinis, so I'm not going to do that. I just want to make everybody understand what we're dealing with here. We're dealing with a true talent. Let's just hear a little bit of your Trump. Please say whatever you want. First of all, to do a good
- [67:23]
Mark Halperin
might require a couple of martinis, but also that your audience be over the age of 50. Okay? Believe me, I have nothing. If I have no intention of suing, maybe we'll sue. I think we do very well. If we sue. I'm going to sue her fat schlong right off of her face.
- [67:39]
James Rosen
Very good. Let's do a little of your Obama, please.
- [67:42]
Mark Halperin
The notion that somehow I or members of my administration would extend a sentence and extend some more, then some more is false.
- [67:58]
James Rosen
All right, very good. And lastly, and this would require people over 80, a little of your Howard Cosell, the legendary sportscast.
- [68:03]
Mark Halperin
Oh, man, I wish I had a little ding noise to sort of like. Okay, hang on now.
- [68:07]
James Rosen
Yeah, just, you know, do like Marcel Marceau Rewipe.
- [68:12]
Mark Halperin
OK, round 11. Ali still on his toes, sticking, jabbing, moving like the Muhammad Ali of all
- [68:18]
James Rosen
right, that's brilliant right there. All right, now we're going to do Beatles trivia. You know, if you're our age, you love the Beatles. And I remember when the Beatles at the Hollywood bowl came out, George Martin, who, you know, had done the producing of it, that they're a longtime producer, was they were liner notes. And he wrote in the liner notes that he'd had an exchange with his nine year old daughter Lucy. This is 1977. And Lucy said, asked about the Beatles, dad, were they as great as the Bay City Rollers? To which George Martin claims he replied, probably not. My point is that Even back in 1977, kids today didn't know much about the Beatles. But for us and for my colleague Paul Wilkie, who's going to join us now to play some Beatles trivia, the Beatles are everything. And they continue to be. The Rolling Stones may have called themselves the greatest rock and roll band of all time, but they weren't. The Beatles were. And I have lots of friends like you who say, oh, I know so much about the Beatles, but we're going to test it now with two of you.
- [69:14]
Mark Halperin
You got to stop you right now before we even do this. I got to stop you.
- [69:18]
James Rosen
Yeah.
- [69:18]
Mark Halperin
Number one, you keep making as though, you know, today kids don't know the Beatles. The Beatles were the first band to, to reach a billion streams with and Which. And trivia. You can do trivia. Which song reached a billion streams first in all the world?
- [69:33]
James Rosen
I'm asking the questions here, Rosen.
- [69:35]
Mark Halperin
Yeah, Here comes the sun. So number one, they remain very popular with younger audiences. And number two, I can't believe you brought up the liner notes and the exchange between George Martin and his daughter Lucy, where she says, you know, are they as great as the Bay City Rollers? And he ends the liner notes by saying, one day she'll know. Right?
- [69:51]
James Rosen
Yes, it's true.
- [69:51]
Mark Halperin
1991. In 1991, I ran into George Martin and his family at LaGuardia Airport and completely embarrassed myself. Jumping up and down like something out of Calvin and Hobbes, like screaming in Exaltation before getting it together and having him sign my copy of Tom Wolf's Electrocool Aid Acid Test. And then I went and sat with the Martin family for about 15 minutes to bother them some more. And he says, george Martin starts introducing his family is my son Giles. I said, hello, Giles. And he's like, giles is a very big Beatles fan. I saw. Okay. Now, of course, Giles has taken up his father's legacy, is the one who remixes the Beatles releases today. And he says, this is my daughter Lucy. And I said, lucy. I said, I know Lucy. Lucy, you still like the Bay City Rollers. And she like nodded as if to say, yes, here is. Here is this month's iteration of that idiot. You know. And so I have actually asked Lucy about that quote.
- [70:44]
James Rosen
All right, Paul, you see what you're up against? Paul Wilkie's. My colleague here helps produce the show with other colleagues. And I'm just going to ask some questions. I've wanted to do this forever with you two. Shout it out. There are no buzzers, just if you know the answer, shout it out. If you shout it at the same time.
- [70:59]
Mark Halperin
Embarrassed here, I know this.
- [71:00]
James Rosen
But we'll see. We'll see. I think you're holding on, James. We'll see. Here we go. What Beatles solo release was the biggest selling song in UK history until it was to place replaced by Bohemian Rhapsody?
- [71:11]
Mark Halperin
Mall of Kintar.
- [71:12]
James Rosen
Correct. Paul, step it up here, dude. Yeah. All right, let's see here.
- [71:21]
Mark Halperin
What record for fastest?
- [71:23]
James Rosen
I'm asking the question. Stop it. No, it's not. It's a free for all between you two. Who played the piccolo trumpet solo on Penny Lane?
- [71:34]
Mark Halperin
Alan Civil.
- [71:36]
James Rosen
Incorrect. Anybody know David Mason? David Mason. David Mason.
- [71:41]
Mark Halperin
I was gonna say David Civil. Okay.
- [71:44]
James Rosen
What was the name of the Liverpool record shot where Brian Epstein first heard customers asking Beatles nems Correct. Yeah. Let's see what Beatles song features Paul counting in the band audibly at the beginning?
- [72:01]
Mark Halperin
I saw her standing there.
- [72:03]
James Rosen
Correct. Paul, you listening? You're paying attention.
- [72:06]
Mark Halperin
Somebody get the paramedics for Paul.
- [72:08]
James Rosen
Here we go. Well, who is the Beatles road manager that appeared in recordings and on the Abbey Road cover?
- [72:15]
Mark Halperin
Mal Evans.
- [72:16]
James Rosen
Correct. What was the last.
- [72:20]
Mark Halperin
What?
- [72:20]
James Rosen
What?
- [72:20]
Mark Halperin
What did. Matt.
- [72:21]
James Rosen
Oh, stop it. You're not. You're not asking the questions. It's my. When I come on your program, you can ask me whatever you want. Was the last song all four Beatles recorded together in a studio?
- [72:31]
Mark Halperin
Oh, goodness, that's a good question. I know the last one they worked on was on.
- [72:40]
James Rosen
The End.
- [72:41]
Mark Halperin
The End.
- [72:42]
James Rosen
What was the first Beatles album track to run longer than seven minutes?
- [72:47]
Mark Halperin
Hey Jude.
- [72:48]
James Rosen
Incorrect.
- [72:49]
Mark Halperin
Revolution number nine.
- [72:50]
James Rosen
Revolution number nine is correct because hey Jude is 7:11.
- [72:54]
Mark Halperin
Yeah, that's the same album.
- [72:56]
James Rosen
Yeah. Well, all right. I knew some of these would be challenged. What was the first album all the Beatles contributed to after the band broke up?
- [73:06]
Mark Halperin
Ringo.
- [73:07]
James Rosen
Correct. All right, Paul, you've done an excellent job of proving my point that James Rosen knows a lot about the Beatles. You're right. Thank you for that. But these were.
- [73:15]
Mark Halperin
These were tough gracious about it.
- [73:16]
James Rosen
These were tough. Paul. Thank you. James, congratulations on the book. I'll just say to folks, if you're interested in American history, you're interested in great characters, you're interested in understanding the conservative movement, and you're interested in reading some great writing, I got a book for you, James, tell them where they can buy it.
- [73:34]
Mark Halperin
It's called Scalia Supreme Court years 1986 to 2001. It's just out. You can find on Amazon, Barnes and Noble, wherever you buy books.
- [73:42]
James Rosen
Again, it's not just for conservatives. It's not just for people, like legal stuff. If you care about America and you want to read a great American story, well told in a compelling way, I recommend it to you. And again, I don't know how you got all those people to write the reviews, but this is a very well reviewed book, folks, for a reason. It's extremely compelling and it's going to teach you a lot, but you'll. You'll turn every page like reading a movie script. James, congratulations on the book. Thank you for being here.
- [74:08]
Mark Halperin
Thank you, my friend.
- [74:10]
James Rosen
All right, and we're going to get Paul some Beatles tutorial. Thank you both for playing. That's it for today. A new episode coming up on Tuesday, so be ready to get back on your screens and listen to your devices. All new stuff. We got some good guests coming up which will announced soon. Make sure you're not falling behind in the news cycle. Subscribe to NextUp on YouTube. Listen to it on a podcast platform that you like and make sure you share the show with others. Help us grow the community. Make sure you got the downloads turned on so you get the podcast if that's the way you listen to it and check it out as always on YouTube. Have a great weekend everybody. Join us again on Tuesday so you always know what's coming. Next up, Boaters know that bad weather like storms, lightning and wind can turn a fun day on the water into a challenge. But what if you had satellite delivered weather data giving you the full picture
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Mark Halperin
of what's around you even when you're
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James Rosen
offshore and out of cell range? With SiriusXM Marine, get up to date weather and fishing info directly on your boat's display. Plus you can add SiriusXM Entertainment. Visit SiriusXM.com Marine to learn more.
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Mark Halperin
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James Rosen
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Mark Halperin
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James Rosen
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James Rosen
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Mark Halperin
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James Rosen
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Mark Halperin
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