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- [00:04]
John Podhoretz
Hope for the best, expect the worst Some preach and pain Some diapers the way of knowing which way it's going Hope for the best Expect the worst.
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Abe Greenwald
Hope for the best.
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John Podhoretz
Welcome to the Commentary Magazine daily podcast. Today is Thursday, December 5, 2024. I am John Podhoretz, the editor of Commentary magazine. With me, as always, executive editor Abe Greenwald. Hi, Abe.
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Abe Greenwald
Hi.
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John Podhoretz
John Washington, Commentary columnist and Director of Domestic Policy Studies at the American Enterprise Institute, Matthew Continetti. Hi, Matt.
- [00:46]
Matthew Continetti
Hi, John.
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John Podhoretz
And our senior editor, Seth Mandel. Hi, Seth.
- [00:49]
Seth Mandel
Hi, John.
- [00:51]
John Podhoretz
One of the most extraordinary oral arguments in American Supreme Court history was conducted yesterday in the case of SCT versus The United States. This is the case involving the Tennessee law restricting the use of, quote, gender affirming care to adolescents and people under the age of 18. And I say it was extraordinary. First of all, it's well, you can read it. It was about two and a half hours long and the transcript is available. You can listen to it, which I didn't have time to do, but I've read most of it and it is, it is like being present at a Talmudic reasoning session or some medieval scholastic conversation about angels dancing on the head of a pin, because you have two different strains of conversation. You have a strain of conversation in which the Solicitor General of the United States arguing on behalf of the Biden administration, Elizabeth Preligar, is making what sounds like a completely standard set of Supreme Court arguments about the rational standards and heightened scrutiny and intermediate scrutiny of rules involving cases that may have laws that seem to suggest that people are being treated differently on the basis of their sex. And then you have some of the Supreme Court justices, with great patience, I would say, who are listening to her, interacting with her, being an interlocutor with her, who cannot believe that they have come to this point in Western civilization in which they are being forced to contend with the argument that should a person wish to, that the change of sex is a thing no different from marrying someone outside your race. And I will give you just one quick piece of the conversation.
- [03:22]
Matthew Continetti
Well, that was an argument, it should be said, not from the government, but from another Supreme Court justice. That's true, but it's Charles Jackson's statement which was remarkable.
- [03:32]
John Podhoretz
Yes, but, but it was implicit. It was implicit in Elizabeth Ferrellgar's peroration. And what she kept saying is that what we are looking at here is a facial sex classification, meaning according to sort of settled law, you cannot discriminate on the basis of sex. Facial sex classification, meaning someone looks like girl, someone looks Like a boy, they should remain as be treated as girls or boys. So the conversation that takes place here is. So here we go. Justice Jackson asks Ketanji around. Jackson asks General Preligar, Solicitor General But a person who is biologically female who wants to take the medication for that same purpose, this is a testosterone to lower voice. Well, let's say a boy wants to take testosterone because he thinks his voice is too high and would like to lower his voice to deepen their voice because they would like to live as a male. Can't get it. Meaning a woman. So a woman who's biologically female wants to lower her voice because they would like to live as a male. Can't get it. Is that right under the Tennessee law? General Pellegar says that's correct. Justice Jackson says all right. So the General Pellegar. And that is on the basis of their sex. Jackson so the purpose is held consistent with that example. It's not changing. What is changing is just the biological sex of the individual. Yes, it's just the biological sex of the individual. In the Supreme Court in 2024, a Supreme justice is arguing that changing the biological sex of an individual is like changing your shirt is like taking a pill that will make you feel different. We are in 2024, the human race has existed since the primordial age. And we have a Supreme Court justice who is talking about the fundamental fact of human nature being something that can be put on and taken off like a piece of clothing. And this then leads people like Samuel Alito and others, and I will give you some example of the Alito discussions very quickly. This is a conversation not with Preligar, but with Chase Strangio, who was arguing on behalf of the aclu, one of the other plaintiffs in the case. Alita wanted to bring up and kept bringing up the fact that in Europe, where this has been more extensively, where transgender surgeries for youth have been much more prevalent, that European countries have been reversing themselves, in particular Great Britain, reversing themselves on the laws and rules regulating this kind of behavior. And he quotes the now famous Cass review, which led the Parliament to restrict gender affirmation stuff. And part of the argument that Chase Strangio made is that we have to do this, we gotta do this, because if you don't let gender dysphoric kids do this, they're going to commit suicide. So he brings this up three times in three different places. And Strangio knowing that he's on thin ice, as often happens when you read these transcripts you can see where they know they've got a weak argument they need to shore up, he says. Going back to the questions about the cast review, he says to Alita, for example, the cast review only looked at studies up until 2022. Gee, that's funny because that was like a year and a half ago. Like, I don't know, suddenly, are there going to be wonderful new data from 2023 and 2024 that can be, you know, used to bolster whatever argument stranger wants to make? Alito says, well, look, I don't regard the CA necessarily as the Bible or something, but that's, you know, true in every respect. But on page 195 of the cast report, it says, quote, there is no evidence that gender affirmative treatments reduce suicide, unquote. Strangio answers, what I think that is referring to is there is no evidence in some in the study studies that this treatment reduces completed suicide. And the reason for that is completed suicide, thankfully, admittedly, is rare. And we're talking about a very small number population of individuals with studies that don't necessarily have completed suicides within them. So Alito, Kavanaugh, Thomas, Barrett, all were attempting to say, basically, what are you crazy? What are you crazy? Like you're saying, are you saying it's a discrimination case? Because I don't see how it's a discrimination case. Barrett said, do we even have evidence that there has been any de jure discrimination in the history of the United States against transgender people? Meaning the law needs to intervene because there have been law, previous laws that targeted transgender people as a class that needed to be overturned and that their further existence as Americans with equal rights need to be watched out over with enhanced scrutiny because there is this history of it. And she says, look, privately, people may have been really nasty to transgender people, but laws were not written against transgender people. So we can't, like just be creating new standards of classification based on no evidence that anything has ever happened to anybody in the past. And to these questions, the lawyers, we can get to Sotomayor and Catanjo, Brown, Jackson and Kagan in a minute. But these lawyers had no answer except to say, well, come on, you know, people are mean. They're really kind of mean to people. So I say it's like a philosophical debate of the old style, because somebody wants to argue that you can change your sex. And then there are all the other people who say, no, you can't. You can cut off parts of your body and you can take drugs that will mimic the experience of being the other sex. And you can interfere with the biological processes that were created either by God or by evolution or whatever, but you can't change the chromosomes inside somebody's body when they are XX to XY or when they are XY to xx. And that's what we're talking about here. And people are trying to use this to shoehorn others, including their own children, into these new categories. And that's why this is an incredibly important conversation that was had yesterday morning, the purest one I think, that we've had yet, at the highest level. So it's not anyone saying you're a turf and you're a transphobe or anything like that. Terms like that can't be used when you're having an argument before the Supreme Court. And so the conversation was held at a level in which people actually had to make an argument and then defend the argument or try to sophistically get their way around the argument.
- [12:05]
Matthew Continetti
I think that the aclu, whose lawyer is a trans person who argued in front of the Supreme Court, did want to argue the philosophy of trans and argue against the idea of biological sex, argue against nature, essentially. The government's case, the Solicitor General representing the Biden administration, the federal government arguing to strike down these laws regulating gender transition procedures for minors around the country was based on an equal protection claim that I don't think any of the judges other than Sotomayor and Jackson were persuaded by. Even Kagan, Elena Kagan, who's, you know, the most intelligent and the most sophisticated of the liberal justices, said at one point, you know, I'm not sure you need to make this an equal protection thing. There's a different basis that you could have argued your whole case, which. And when a justice who's supposed to be on your side says that, it's never a good sign. But as Justice Barrett points out, well, kids of male or female are equally forbidden from taking these drugs. So what's your equal protection violation here? It doesn't make any sense. So the extremists represented by the aclu, who made some just stunning claims at one point, the ACLU said that, well, these. This is biologically determined is your gender dysphoria, which I don't think anyone has ever argued before, that somehow you have chromosomes that make you want to change your gender identity. Now, there are, obviously there are cases like that Algerian boxer, where, you know, you're. You're born with an extra chromosome or something like that, but that's very rare.
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John Podhoretz
But those are nuts. Not a gender Dysphoric case.
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Matthew Continetti
Exactly.
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John Podhoretz
Those are called. There is a category. It's called intersex.
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Matthew Continetti
Right.
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John Podhoretz
There are people who have genetic anomalies. You can't or.
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Matthew Continetti
My point is you can't argue two things at once. It's somehow that this is a fixed biological state that makes someone want a child, makes a child want to transition, and also say, well, there's no such thing as gender and there's no such thing as biological sex, and people can assume whatever gender identity they want. It didn't make. I don't even know what, if you accept the ACLU's logic, what the future of equal protection looks like, because, well.
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Abe Greenwald
It would mean there's a man. Wouldn't it mean a man could demand an abortion?
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Matthew Continetti
I get. I mean, that's the kind of the.
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Abe Greenwald
I was trying to think of something comparable.
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Matthew Continetti
Well, that's the hall of mirrors you get into when you accept Justice Jackson's view, which is that, you know, she couldn't define what a woman was in her hearing to be a judge in her nomination hearing. I just want to say about how the conservative justices dealt with this, because I think you're right. Alito did want to get into the substance. But I think the argument that's going to carry the day was coming from Roberts and Kavanaugh, who were both saying, look, this is ridiculous. Why are you putting this in front of us? We're nine people. We.
- [15:47]
John Podhoretz
We're not doctors.
- [15:48]
Matthew Continetti
We're not doctors, we're not scientists, we're lawyers. And our whole judicial philosophy, six of them anyway, is based on the idea that the Court should not be making law for the entirety of the country. And John Roberts, the Chief justice, said, it's like, why would you put us in a position where we would be striking down laws in 25 states on this extremely controversial topic? It makes no sense. And Kavanaugh echoed him. And I think that eventually will be what the majority will rule is that this is just not a question for the Supreme Court. This is something that the state should be left to regulate. And I think that's the settlement that would be legitimate in the eyes of the public as well. The one X factor, which you haven't mentioned, is that the only other time the Court has ruled on trans issues was in its Bostock ruling in 2020, where the court said that employers could not fire someone on the basis of their gender identity, in addition to their basis of race, creed, or sex. And that decision was written by Justice Neil Gorsuch, a Republican appointee, a Trump Appointee, an originalist judge who remained silent throughout the entirety of the oral argument yesterday in the Tennessee case. And that was very interesting. Why he never spoke up. Even if we were to say that Justice Gorsuch was persuaded by the equal protection argument and believed that that argument fit into his ruling that he wrote in Bostock, that would only get you four votes, though, to strike down the Tennessee and other state laws. So I do think this law in Tennessee is presumptively protected, based on the oral argument yesterday.
- [17:34]
John Podhoretz
Right.
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Seth Mandel
But also the targeting of, you know, the targeting of justices, past decisions is usually a good way to go. But in the Gorsuch case, you can easily explain something like that away. In the Gorsuch case, he essentially ruled, you can't be fired. You can't fire somebody by saying you look like a girl. Right. That's what we're talking about with transgender discrimination in the workplace. And so it's very easy to see how a justice could fold that into gender discrimination. I mean, it's not the same thing as gender discrimination, but in practice, what you're dealing with are people being fired for not looking enough like a girl or looking like a girl or looking like a man, whatever. That all fits into people's general common sense understanding of gender discrimination. And so either way the law goes, you can see that in this case, it's.
- [18:28]
Matthew Continetti
I agree with you, Seth, and I think that that's one way that Gorsuch could potentially join the majority in the Tennessee case. But I will say, prior to Bostock, that protection that you just named had not been written into law. So one reason there.
- [18:43]
John Podhoretz
Right.
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Matthew Continetti
Critics of Bostock, like myself, went after that decision, was this is a case, again, where you should just let the democratically elected legislatures write the law, and then the court will.
- [18:55]
John Podhoretz
And that is what. That is what Alito said in his dissent.
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Matthew Continetti
I like that guy Alito.
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John Podhoretz
Yeah.
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Seth Mandel
Good things.
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John Podhoretz
More and more, Bostock makes a certain amount of common sense on its face. Alito said, notwithstanding what you may or may not think, this is legislation from the bench. He said, it's the worst legislation from the bench I think I've ever seen. I'm embarrassed to be on the court that did it, which is pretty startling. But, you know, like, when you hear the fact pattern in Bostock, you can kind of understand the sympathy that Bostock himself generated or because of the circumstances involving the case. Very specifically, here we have a different set of circumstances. Here we have the question of whether or not a parent, together with their doctor, can take a seven year old and say, block their puberty and when they get old enough, cut off their breasts. I'm the parent. This is the doctor. There's some evidence that, you know, they might, they might be at risk of suicide. Do it. And while we believe in parental rights, we do not believe, for example, that if you believe that your kid, a demon has possessed your kid's right arm, that you should, as with a matter of parental right and free exercise of religion, find somebody who can cut that right arm off. The state has a. Has an interest in preserving and protecting the rights of those who do not have full rights themselves against them being used as an instrument of their parents. Right. So, I mean, I'm using just like a very wild example, but, you know, it's not an example that would have been unknown and pre modern times. So that's the circumstance here. And I want to read Justice Thomas in colloquy with Chase Strangio, the ACLU lawyer, referring to a case called Boren. Boren is an important case because there was a time at which a woman was not allowed to buy. A female was not allowed to buy alcohol at a package store or something like that. And this was held to be understandably sex discrimination. And Thomas says in equal protection cases, there's a difference between one group and another. In Bon, it would be that the women could buy alcohol. Excuse me, I've got this backwards. Whatever. The women could buy alcohol, but the men, the male students could not. And what would that be in this case? What would the sex difference be? Strangio says, I think that what the birth males can do that birth females cannot do is receive medical treatment to live and identify as boys. And what birth females can do that birth males can't do is receive medical treatment to. To live and identify as girls. That's a group of them. So he is now saying, likening a situation in which someone's allowed to buy beer and somebody else is not allowed to buy beer to somebody who can have their entire physical makeup, genome, reproductive system, body parts altered by choice. Whereas if you're a boy and you have a testosterone deficiency, you might want to get some extra testosterone in order to live a more full life as a boy. And similarly with estrogen for a girl. If you give a boy estrogen, you sterilize that boy. If you give a girl excessive amounts of testosterone, you de feminize that girl and may well interfere with her reproductive system. So we're now back to the. Now we're now down to the standard of can I go to the 711 and buy a beer. Yes. Can I get something that will sterilize me? Because I want to try? Yes. They're the same. That is not equal protection. That is not. This is why I say this is a philosophically significant conversation that is being had.
- [23:57]
Matthew Continetti
It's also the chase. Strangers just doesn't know what you know. It's so beholden by this ideology that there's no such thing as sex and you can be whatever you want. They're not thinking straight. Right. That case that you mentioned, that was a case where, okay, the court has to apply this, what's called intermediate scrutiny to see whether there is a compelling state interest in forbidding women to buy the beer while allowing the men. And what the court found is there's not really a compelling state interest in forbidding the women from having the beer and not the men. I think you could easily say from the court's perspective, I don't know, the state of Tennessee thinks that this is a very dangerous procedure, that there are cases where the child regrets the transmission and all of the costs associated with that are then on the family and on the state, and that there is maybe a compelling state interest in allowing the regulation of this for minors for this very unusual, very novel medical procedure. So even there, even by that standard, I don't think that you could knock down this law because the court is being forced to deal with something, as you say, John, that is completely new. That's completely new in human civilization. And they're going to sit there and say, yeah, you know, we've decided that the aclu. ACLU and its trans lawyer, Chase Strangio, is correct and there's no such thing as biological sex. And Ketanji Brown Jackson was absolutely correct when she refused to define what a woman was in front of the United States Senate. And therefore, these procedures are guaranteed. Guaranteed by the 14th Amendment around the country. I just don't see them doing that.
- [25:44]
Abe Greenwald
You know, the argument that is being used here, the equal treatment, it completely sidesteps the fact that not just in terms of hormonal medics, medicine, there is a whole range of medications that could potentially do much more harm to one sex than the other. Is this discrimination issue suddenly that if you can't get a drug because it would harm you owing to the fact that you are biologically one sex or the other. I mean, that is the basis of this, of this argument.
- [26:37]
Seth Mandel
It's not just. It's. It's actually. I mean, this is the thing that I can't quite get past. With this is that sex discrimination in medicine is the law. Yeah, Well, I, like. I don't. I don't know what we're discussing here, but, you know, exactly. You. I mean, I'll just. I'll just give you an example.
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John Podhoretz
The.
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Seth Mandel
There was sort of this landmark case about a decade ago where the FDA decided to officially change the recommendations for Ambien and have different doses for men and women. Okay? So the approved legal use of this drug was different dosage for men and women. Then you have situations where the effect of the drug is not just about how much you should take, but which drug you should take. And there are situations where the official recommendations are for men to take different drugs than women in the same situation. I mean, there's a list of examples here, but this is basically like opioids. Men require a greater dosage. Selective serotonin, you know, SSRIs. They're the preferred therapy in women with depressive symptoms. Tricyclic antidepressants should not be given to women. It says here. Choose an alternative.
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Abe Greenwald
That's what I mean. Yeah.
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Seth Mandel
All right, so. So these are different medications. These are. If you have a woman and a man come to you with clinically depressive symptoms, the policy is to give them different medications. And it's not just body weight. I mean, I think you. I mean, Abe, you sort of alluded to this with, you know, metabolism and stuff and the hormones. But the reason this became a scandal before we had the trans, you know, outbreak sort of thing, the scandal was that they were not testing drugs on women enough. Right. Because they were concerned that the fact that women have differing hormonal cycles. Right. Monthly hormonal cycles, that the hormonal cycles could throw off the results of the drug test.
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John Podhoretz
Well, you know, it would impact that.
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Seth Mandel
So they. So they demanded that women be included more precisely because there were differences in that.
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John Podhoretz
This is a fascinating issue. We published in a very important article on this matter 10 years ago by Claire Lemon, now known as the editor of Quillette, called the XX Factor, which explained how drug testing over the course of the last 50 years has been problematic in relation to women, for some of which is for good reason, which is that you do not do placebo testing with dangerous drugs on people of childbearing women of childbearing age. Because you do not want to interfere to do something. When you don't know what a drug is going to do and you're testing it, you cannot be sure that you are not going to interfere with or create horrible conditions like the thalidomide babies or others that will result from that testing happening when someone might, without even knowing it, have a baby in utero when they're doing the drug testing. But that this then hardened and mixed with weird feminist, first wave, second wave kind of egalitarian feminism with the notion that, well, why can't we just take the results from men and apply them to women? It's sexist to assume that women are somehow different from men in any way, shape or form. And then there were all these negative results. And the Ambien study was actually, I think, the first real moment at which the medical profession said, hey, hey, wait a minute, like we're going in a bad direction here. We have bad results. It was actually a matter of some real controversy that because There was this 20 year period in which the medical research profession treated men as though they were women and women as though they were men for the purposes of getting study results for drugs that could then be brought to market, kind of softened the ground for this idea that, you know, we didn't have to take account of sex difference when dealing with medications.
- [31:11]
Matthew Continetti
I think this connects to one of the stupidest and most callous comments ever uttered from the bench of the United States Supreme Court. And it, of course came from Justice Sonia Sotomayor, who at one point said in a discussion of the procedures, well, you know, there are risks to any medical procedure. There are risks to taking an aspirin. And for Justice Sotomayor to liken gender reassignment for youth to taking an aspirant is the most inane comment out of many from her that I've heard since she was first elevated to the Supreme Court over a decade ago. But so that's comment number one.
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Seth Mandel
Aspirin, by the way, is one of the drugs that most clearly has different effects.
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John Podhoretz
But.
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Seth Mandel
Yeah, go ahead.
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Matthew Continetti
Yeah, the comment number two, and I think it came from prolegar, the Solicitor General said, well, you know, if you let this law stand, Justices, that means then there will be laws regulating transvestite, transvestites, people who wear different clothes of the opposite sex. And to me, I think that that's wrong, completely wrong, because the Court would view wearing clothes as a form of free expression. And so this Court has been very expansive in its view of free speech and free expression. Clothes have nothing to do with actually trying to change the biology of a human, which is what the procedures underlined in the case yesterday are all about. So I think those two comments deserve a mention for, again, being utterly unpersuasive in the cross dressing case and then really just kind of banal and stupid in the Aspirin case, in the Sotomayor case.
- [33:11]
John Podhoretz
Can I also point out one last moment of celebration of Justice Alito as the kind of bastion of moral common sense in this argument yesterday. This is what our friend Rodrigo called Alito's kill shot says to Strangio. Let me ask a question about another issue that came up during Justice Kagan's questioning and Justice Barrett's questioning in particular, and that is whether transgender status should be regarded as a quasi suspect classification. That's what goes to that. That's what would undercut the Roberts decision to say, we just gotta leave this to the states. Because if it's a classification that requires protection, that is something that the courts might need to find, right. To create heightened scrutiny or something like that, to protect people in their classifications from the tyranny of the majority or from, you know, sort of like populist discrimination. Justice Barrett referred to one of the things that our cases have mentioned in explaining that when something should be specified as a quasi subject suspect classification, that is a history of discrimination. Another one is immutability. Right. Immutability is skin color would be the most obvious example that we live under and is the most important aspect of all civil rights law. Right. The immutability of skin color. He simply says to Strangio, is transgender status immutable? And Strangio says, so I would say that under this court's consideration of that criteria, it is a distinguishing characteristic. Transgender people are characterized by having a gender identity that differs from their birth sex, that is distinguishing and. And discreet, and that also within the characterization. I would point, if I could, to the history of discrimination. And there are many examples of in law discrimination solution, from military criminal bans on cross dressing, at which point Roberts comes in and saves trangios bacon because he's like flying off onto a balloon, you know, into the sky. Thank you, Council. I think I lost track of the discussion you were having before about COVID And then he sort of shifts it away because basically Alito had just delivered like, the hammer blow. But you know, that either if it's not immutable and part of the argument about transgenderism is that it's not immutable. I mean, this is where Matt says, you can't have it both ways. Do you get to pick your gender, Then it's not immutable.
- [36:18]
Matthew Continetti
And the law has treated being a woman as an immutable characteristic.
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John Podhoretz
And guess why. Two weeks it is.
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Matthew Continetti
Yeah, it is because it is.
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John Podhoretz
The most immutable of all immutability things. It is the thing that codes us from when we are a zygote.
- [36:34]
Abe Greenwald
But here's the. But this, the question of mutability brings up this is he what the.
- [36:41]
Matthew Continetti
What.
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Abe Greenwald
The, what the trans movement cannot countenance. Are the detransitioners, the ones who have demonstrated that this is mutable? Well, first of all, it's mutable. It's mutable because they're going back and forth. But the detransitioners whose lives are in ruins because they have transitioned and gone back, there is a callousness with which the trans movement treats them, with which the quote, allies of the trans movement treats them. I was reading a CNN write up on the proceedings yesterday and they talked about so called detransitioners. This is some way to treat an ever growing population of victims of this craze. And if you think we're looking at court cases now that are consequential regarding trans, wait till the detransitioners have their day and the families of the detransitioners have their day in court. The mutability question is not dead.
- [37:57]
John Podhoretz
Yeah. Nor is the CAST report, which as I say, Alito cites. Because the world of data relating to the psychological, physical health effects of these surgeries is largely propagandistic in the United States. It is conducted by interested parties who are not trying to look at the data to find out whether this is good or bad or something that we should or shouldn't be doing.
- [38:27]
Abe Greenwald
No. And they bury the results they don't want.
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John Podhoretz
Well, that was the major story right from the New York Times a couple of months ago that this story. Was it at Houston, I can't remember where, where the doctor said I didn't want to publish it because I really didn't like what I was seeing. But I'm saying we cannot trust this data. We have to turn to England, which clearly again, like the castle were, did not want to find what it found. It just had to. Because, you know, I mean, there is a world in which we are all living in an era of Stalinist science in the commissars tell you what you're supposed to say and then the science is rewritten to say yes, you can alter someone's genome because Stalin says we can alter people's genome. That's Lysenko with science. That was what governed the Soviet Union for the first half of the 20th century.
- [39:23]
Seth Mandel
I think that's the important point about the courts though that Abe is referring to is that we started this conversation by saying progressives wanted to use the court to make law that they couldn't make through legislative means. But, you know, I think we've all sort of seen this coming. The downfall of this, of the trans madness, as far as, you know, science and doing surgery on minors and detransitioners and all that other stuff, the downfall will be through the courts, because that's what will stop hospitals from actually offering a service. Right. I mean, that liability is the thing that in American medicine is the one thing that can put up a wall in front of politics. Criminal, you know, liability, medical liability. And so they are going to the courts to have this established. But once you bring it to the courts, you open a door that is not going to work in favor of child sex changes.
- [40:28]
John Podhoretz
I want to close this out with a reference to one of the greatest men that I've ever known. Now in his 90s, a man of clarity, written for commentary. Man of clarity. A man of great wisdom, a man of great faith, a man of great humanity, Paul McHugh. Paul McHugh was the head of psychiatry at Johns Hopkins, one of the leading psychiatrists of the 20th century. Vitally important in killing off the recovered memory industry that had ended up sending dozens, if not hundreds of people to jail on trumped up charges that they had abused children, and that those children remembered their abuse 20 years later, that it had been buried. And Paul explained in many cases as an expert witness that this is not how memory works. Trauma is not something that is forgotten. It is something that is relived constantly. And that this whole theory is a misunderstanding of human nature. It was a very noble effort. It quashed one of the great civil rights horrors of the end of the 20th century. When Paul went to Johns Hopkins to become head of Psychiatry in 1972, Johns Hopkins had pioneered transgender surgery. I believe Christine Jorgensen, the famous first transgender, either was either had her surgery there or something like that. And Paul said, I'm not taking this job unless we halt transgender surgeries. And people said to him, well, you know, you're a Catholic, so I understand you're a very orthodox person, all that. And he said, we're here to cure pain. We're here to deal, help people alleviate, live with their pain, overcome and recover from the things that are destroying them from the inside. We need to treat their pain. We do not need to affirm that the distortions that their pain is causing in their psyches is real. That will only make it worse over time. That will only increase the Storehouse of their agony. It is our purpose to help them come through the thing that has made them feel this thing. And this is the, this is the lesson of his life. And he retired and Johns Hopkins, like everybody else, changed their policies on these matters. And he will be proven right in the 21st century as he was in the 20th. And he once reminded me of the fact that one of the great exchanges in all of philosophical history was there are two famous ones. One is when Bishop Berkeley, the 18th century philosopher, said that he did not. How do we know? In a believer in extreme subjectivity, meaning you could not know anything that was not outside of your own consciousness. How do you refute that this is true? And I believe it was Dr. Johnson or Hume, I can't remember which one. Hume or Dr. Johnson said, how do you refute Bishop Barclay? And where it was kicked a rock that was in front of him kicked it so hard that he yelped and left yelped out in pain. And he said, I refute it. Thus meaning the rock is there. It's not subject, it's not subjective, it's not in my head. It is there. Similarly, the transcendentalist philosopher Margaret Fuller in the 19th century, the American transcendentalists were full of the same kind of extreme subjectivity about what is real, what is in our heads, what's not in our heads. And late in her life, Margaret Fuller allowed very grandiloquently, as though as to how she accepted the universe to which. John Carlisle. Is that his name? John, The English Carlisle? Thomas Carlyle. Thank you. I knew his name was Thomas.
- [45:20]
Matthew Continetti
Carl Carlisle was his cousin who was, you know. No, I'm just making.
- [45:25]
John Podhoretz
Yeah, I don't know. That would be good. Yeah. His cousin who made a really, really.
- [45:29]
Seth Mandel
John Carlisle was the one.
- [45:31]
Matthew Continetti
Buddhist. Yes.
- [45:33]
John Podhoretz
Robert Carlisle is a very good Irish actor. Thomas Carlyle's who I'm talking about. Yes. Thomas Carlyle, hearing Margaret Fuller say, except the universe said, by gad, she better. And one of the things you see in this entire conversation is Robertson, you know, the middle of the court is going to say, this isn't our business. Leave it to the state, leave it to the people in their wisdom to figure out how this should be dealt with. You're going to get from Alito and Thomas, in my view, concurrences, they're going to make the points that we've been making more explicit about the noxiousness and evil that are being argued here. But that in the end what's happening here is a revelation that these are people who are arguing against the very fundaments of the universe. And that just will not stand in the end. I mean, if it does, we're all finished anyway. So I don't know what it matters. But you know, that's. So we'll just, we'll just have to soldier through.
- [46:48]
Seth Mandel
But it won't.
- [46:49]
John Podhoretz
As ever. As ever, as ever. Paul McHugh always write right here, right before, right again. Prophet, wise man, and the only person you ever need to read on this subject.
- [47:02]
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- [49:22]
John Podhoretz
Hey, what about pardons, you guys? Should we move from the empyrean down to the nakedly political?
- [49:31]
Abe Greenwald
Sure.
- [49:32]
John Podhoretz
We're hearing Joe Biden saying, we're hearing that they're considering a lot of pardons.
- [49:37]
Matthew Continetti
Yeah. Well, the best part of this story, which broke on Politico late yesterday, that the White House is considering preemptive pardons for figures like Adam Schiff, Anthony Fauci, Liz Cheney and others. Was that buried in the article is line. No one's talked to Biden about this yet. It's just another window into what's been happening for the last four years that some kind of AIDS behind the scenes are coming up with how we're going to run the country. And eventually they let the President know.
- [50:15]
Seth Mandel
Right. The White House is considering. No, the President has preemptive pardons.
- [50:20]
Matthew Continetti
And maybe they'll tell the President.
- [50:23]
Seth Mandel
Maybe the Biden administration means, you know, the undersecretary of State for whatever.
- [50:30]
Matthew Continetti
It's pretty remarkable story. You know, my first reaction upon hearing it was typically when you accept a pardon, you accept that you're you, you've committed something bad, you've done something wrong. And I don't know if the people who are being discussed for these pardons would be willing to do that. You know, and I think Schiff came out and said, I don't want to pardon from anybody. Right.
- [50:58]
John Podhoretz
So I just think we should say.
- [51:01]
Abe Greenwald
More explicitly because it kind of slipped by. They're talking about preemptive part.
- [51:05]
Matthew Continetti
Preemptive.
- [51:05]
John Podhoretz
Yeah, that's why, that's why I'll take one.
- [51:08]
Abe Greenwald
Yeah, sure.
- [51:09]
Matthew Continetti
You would be saying, then you'd be saying that you had done something wrong.
- [51:13]
Abe Greenwald
No, but I will.
- [51:13]
John Podhoretz
Not all, not at all.
- [51:15]
Abe Greenwald
You know, I didn't even do Rob.
- [51:18]
John Podhoretz
I was on a trip once with the Lieutenant Governor of Kentucky. I said something about how, you know, how did. Colonel Sanders was a Kentucky Colonel. There's this thing called the Kentucky Colonels. The governor of Kentucky could make you a Kentucky Colonel. It means nothing. Three weeks later I get in the mail a certificate naming me a Kentucky Colonel. I could show it to you guys. I could take it off the wall, show it to you. So I'm a Kentucky Colonel in good standing since 1998. Doesn't mean anything, but I could. Sure, I would love to have a twin, you know, preemptive pardon put on my wall. I got, I got, I got. They got nothing to come at me for but kind of be a nice, you know, kind of like stocking stuffer.
- [52:02]
Seth Mandel
No, it's a PDA card.
- [52:04]
John Podhoretz
Yeah, exactly. That's. But that doesn't work either, right? The PBA card is the thing. You give the PBA money, they send you a card, and you have the fantasy that if they pull you over, you can show the cop who has pulled you over for speeding the PBA card and you'll go, oh, you're one of us. Go right ahead. He's like, I'm sorry.
- [52:24]
Matthew Continetti
Think about it with Hunter. Hunter's pardon was, yes, a pardon for the two cases in which he was found guilty, but it was also a preemptive pardon for anything he might. May have done in this almost 11 year period preceding the issuance of the pardon. What is everybody.
- [52:42]
Abe Greenwald
And the plea deal was totally preemptive. The plea deal was like. Was like forward looking, right?
- [52:48]
Matthew Continetti
Yeah, right.
- [52:50]
John Podhoretz
But I was.
- [52:51]
Matthew Continetti
So everyone is saying, well, clearly this is the way that the Biden family is trying to shield their business dealings from investigation and potential prosecution. So if Biden were to issue a pardon to Anthony Fauci for his activities from 2010 or whenever they started getting into the bat lady business to 2022, people would immediately say, oh, my God, Fauci really was up to no good.
- [53:22]
John Podhoretz
With, oh, I'm all for it. I'm all for this. Listen, you pardon Fauci for any and all actions that he took as at the head of that agency, and then you bring him right up before Congress and you keep him there for six months testifying, because he has no way of shielding himself from answering any question. Because whatever the preemptive pardon is, it doesn't shield him from perjuring himself from the moment from the pardon forward. That's a point that Andy McCarthy made about the Hunter pardons, is there's a kind of potential ticking time bomb there should Congress want to really waste its time on continuing with this investigation. Hunter's got no out. He cannot take the fifth. He cannot say, I can't talk. He cannot avoid a subpoena. He is now subject to new criminal action, should he. Because he has no protections for self incrimination. So it might not be the best thing. I assume that's not gonna happen. But with Fauci and Peter, I mean, I guess you can't. You're not gonna write a pardon for Peter Daszak.
- [54:41]
Matthew Continetti
Peter Daszak is named in the House oversight report on COVID 19 as being potentially criminally liable. Some of his statements to Congress anyway.
- [54:51]
John Podhoretz
So I'm all for The Fauci. I go for the preemptive pardon for Fauci. You know, throw me in that briar patch.
- [54:57]
Seth Mandel
But, boy, can we comment on the corruption aspect of this, too. Because the reason they're considering pardoning people preemptively is because they think they might be prosecuted. They're public officials who they're worried may be prosecuted, so they're going to preemptively pardon them. Why not just pardon everybody who's a registered Democrat, and then when Trump gets in office, pardon everybody who's a registered Republican? That's what this is. This is immunity for public officials forever being held possibly accountable in the future. It is a sort of. It is. The corruption angle to this is so massive that is almost hard to believe.
- [55:41]
Abe Greenwald
We've come a long way from no one is above the law.
- [55:44]
Seth Mandel
Yeah.
- [55:44]
Abe Greenwald
And I just want to say, as our friend. No. Rothman noted on Twitter, just think about if the other side proposed this. And it's very clear how awful this is.
- [55:56]
John Podhoretz
But I mean, that's what's fascinating about what's happening here. So for eight years, the idea has been that Trump is an authoritarian neo Hitler who will marshal all the powers of government to go after his enemies and destroy them and throw them in jail. Then for the four years that he was president and the four years after he was president, the other side, to the extent there was another side, even though they weren't really in power, it didn't have the reins of power exactly inside the deep state, wanted to throw him in jail and Carter Page in jail and George Papadopoulos in jail and Paul Manafort in jail and Trump in jail and all these people in jail. And then afterwards, Trump was gone after by. In two jurisdictions in the United States, in federal courts in Washington and in. And in Florida, in a local court in Georgia, in a federal. In a local court, in a local court in New York, in a state, two state civil proceedings in New York, convinced, so convinced were they of the threat of extra, of sort of this world in which you would use political power to go after your political enemies, that they unleashed it themselves. And now that Trump has won again, now they're scared and saying that they better do something because he's going to come after them. It's like the lack of self knowledge, the permission that they gave themselves to sort of do the. I could constantly use this quote, you know, the use of excessive force against the Blues Brothers has now been approved. They unleashed all of this against their political enemies. Trump didn't do it once I mean, it was the inspector general of the Department of Justice who was responsible for getting rid of Peter Strzok and Lisa Page and whoever else was Keshe, Andrew McCabe, for their misbehavior, not Trump. But I have someone inside the Justice Department's own self policing mechanism for improper leaks and misbehavior.
- [58:24]
Abe Greenwald
This is a continuation of the long running pattern whereby Trump's enemies always put meat on the bones of his allegations. It's amazing because by saying we're going to, we want to preemptively pardon Fauci and whoever else, if, if they do that, those figures are ruined. I mean, if you get a preemptive pardon and nothing else comes of it, you, that is an asterisk you don't want actually in life. I understand you want the certificate on your wall, but that means you're forever suspect. And that is, it's an admission.
- [59:07]
Matthew Continetti
I mean, and they're only really up to this point. There's the Nixon pardon that Ford issued, and then there's the Hunter pardon that Biden issued. I can't think of other pardons that absolve someone of crimes that they may have committed during a period other than those two cases. And so to then follow it up with these blanket hypothetical pardons preemptively would be a complete breach of the, you know, quote unquote norms that have governed this power over the years.
- [59:45]
John Podhoretz
But they're the ones who created the thought process that led to this, with this idea that. And we talked about it here too. Well, of course, when Trump comes in, if he wins in 2025, he'll preemptively pardon himself so that he doesn't have to, he can, he can just get all this off his plate. Now, the Supreme Court made that unnecessary with its very wise decision last year to say that a president cannot be legally held responsible for official acts while in office, cannot be prosecuted, cannot be looked at. And there was all that hair pulling and my God, this is why he picked the Supreme Court. Really? Is this what you want? You think that was unwise? Well, okay, so now what are you going to do now? Now he doesn't have to do that. But they spun themselves into this frenzy about how Trump was so Hitlerian that he would pardon himself and his family to spare them. So guess what? They'll do it first. Now if they do any preemptive pardons. What do they say if he does any preemptive pardons? They did it first. They broke the norm. They busted the filibuster. Harry Reid busted the filibuster, not Mitch McConnell. They keep doing this. They keep changing the rules in fear of Republicans changing the rules later. And then they say that somehow Republicans are responsible, but they always do it first. The tragic thing, when you really look at the Hunter thing and you mention Ford and Nixon, what Ford did when he pardoned Nixon and arguably made the loss of his presidency almost inevitable, was an extraordinarily noble act. And he did it to save the country. He did it to say, we have to turn the page on this. This thing has torn us apart, is eating us apart, is destroying American faith in our institutions. Leave him to heaven. Just get him out of the political discussion. He's out. He's gone. We're not going to pursue him for anything and we can move on. And the, I mean, you guys really weren't around. I mean, the outrage, the uproar, the sense that somehow Ford had cut a deal with Nixon to save him and all of that, it was the opposite of the case. Ford knew that he was doing himself great damage by doing it. And he did it because he was a deep patriot and someone who understood that the country was on a knife's edge, and he did it anyway. And Biden did this to keep his crackhead crook son, who was probably shoveling him tens of millions of dollars through the Penn Biden center of the place where you put files you're not supposed to have institute and call it while he was calling his father Pedo Joe and the Big Guy and all of that. So congratulations to Joe Biden. Every president who has misused the pardon power has suffered greatly because of it. Bill Clinton left office in 2000. People really don't remember this. His last week in office and the three weeks after Bush came into office were so bad for his reputation when he pardoned Mark Rich, who was a arms dealer, financier, guy who was married to a major, whose ex wife was a major Democratic donor. A couple of other things, his brother, various other things. And there really was a sense when that happened that Bush came into office looking smelling like a rose because we had turned a page on Clinton. Clinton had not only been Lewinsky and Whitewater, but look at what he did walking out the door. He just acted like a crime boss. And this is something that Trump should take measure of. It's really not good, doesn't help. It's bad for your reputation to screw around with a sort of plenary power like this. And you're probably better off not doing it to keep yourself in good Odor. He enjoyed doing it during his presidency as it was like fun to pardon somebody out of nowhere. But probably shouldn't do it now because.
- [64:27]
Abe Greenwald
I think one thing that this now forces the Biden administration to do before it's over, having given Hunter this prep, this broad pardon, Biden has to pardon a gazillion, like people in jail on low level pot charges. Right. Because they're angry. And that whole lobby, so to speak, is enraged at the prospect that he won't. It's like you give your millionaire son addict this pardon on the false grounds that it has to do with his suffering as an addict. And what about the, you know, I'm talking about the sort of decarceration camp. What about the minority victims, racist drug laws, who are sitting in jail cells right now?
- [65:31]
Seth Mandel
He should issue a pardon of everybody arrested under the 1994 crime bill.
- [65:36]
Matthew Continetti
Right.
- [65:37]
Seth Mandel
But by the way, the pardon, the pardon thing also get out of hand. The pardon thing has actually actual good uses, the fun pardon, I will call it, and Trump also use those. I mean, he pardoned Jack Johnson, who was a boxer who had been convicted, you know, 100 years ago of essentially a race crime and, you know, of miscegenation.
- [66:01]
John Podhoretz
Yeah, yeah, it was white girlfriend, white woman. Yeah.
- [66:05]
Seth Mandel
So, you know, there are time. And there was like, there was this huge, there was a real bubbling up of enthusiasm. There were people like, you know what you should do? You should pardon Jack Johnson. Why not? And Trump was a sort of why not President. Right, but so you can use these as a way to look back on things and say, hey, you know, let's right this historical wrong and clean the record for this person, you know, whatever. And those are, I think we can classify them as the fun pardons also. I mean, a boxer who, you know, who was arrested for this, you know, whatever. But, but those are actually ones that the public sort of, you know, says, oh, yeah, that is why the president has the pardon power, not to pardon his buddies. But because, you know, there is a sort of cosmic justice, the ability for a country with the President speaking on its behalf to say, hey, this was a really bad thing that happened. We all agree it was bad, let's fix it.
- [67:03]
John Podhoretz
Absolutely, absolutely. And I'm not saying that all pardons are bad. My brother in law was properly pardoned for pleading guilty to something that he pled guilty to to spare his family, including me, from bankruptcy for a crime he did not commit. And he was pardoned by George H.W. bush in a very noble act. And so you ain't going to hear anything from me about how bad pardons are. They're not bad. They are tainted by behavior like this. They taint the pardon power. So you now have people like going after the pardon power. And I think the other interesting thing about Biden's thing and then we can close up on this, but is, you know, he's got no legacy. We're. So you're saying he's gonna have to pardon all kinds of people to make the decarceration people not mad at him. He's done for. He's 82. He's senile. One son is a crack addict. His daughter we won't go into. She's got issues. He's got some grandchildren. I hope they're. I hope life is wonderful for them. All should be well and all manner of things with them should be well. The Biden name is about to go into the dustman of history. He's got nothing to burnish. It's all downhill from here. There is nothing good is going to come of the. It's not going to be like 20 years after George H.W. bush. I wrote the first book about the George H.W. bush presidency. It was a pretty hostile book. Twenty years later, three or four people tried to write the. You know what? He was actually a pretty good president book. George John Meacham, famous for being wrong about everything. Wrong about this too. He was a wonderful man and a very gracious person. And he really, you know, he. The office was certainly not tarnished by his presence in it. But.
- [69:03]
Seth Mandel
But were you there when he pardoned his son Neil?
- [69:06]
John Podhoretz
John, I just want to quickly point this out. Now you really got me. This thing came out. Article in Esquire came out from Charles Pierce saying, how dare anybody criticize Biden for pardoning hunter when George H.W. bush pardoned his son Neil, who was involved in the SNL scandals. That article was written by Charles Pierce. Charles Pierce is somehow still being published 35 years after writing the worst sentence in American journalistic history when he said at the end of a profile of Teddy Kennedy that one of the great tragedies of Teddy Kennedy's life was that if only Mary Jo Kopechne had lived, she would really be benefiting from all of his wonderful healthcare legislation. I think the Media Research center in one of its very, very early days name this the worst article of the 20th century. It's pretty close. The fact that anyone will still publish him makes my jaw drop. But I was glad to see that his ignominy has got it Got a chance to resurface yesterday in this preposterous claim that Bush had pardoned Neil when he didn't pardon Neil. So, Charles Pierce, thank you for allowing me to remind people what a disgusting piece of dung you are and always have been. Now, does anybody have a recommendation? Because I don't. So we can. We didn't, we didn't sort this through.
- [70:37]
Abe Greenwald
Go read the worst article in history.
- [70:40]
John Podhoretz
Yeah, just Google.
- [70:43]
Matthew Continetti
No, no, don't read the worst article.
- [70:47]
Seth Mandel
You can't read the.
- [70:48]
John Podhoretz
Neil, you got a good essay. We got a good essay.
- [70:50]
Matthew Continetti
No, read. Here's my recommendation is rather than reading Charles Pierce, read Andy Ferguson's essay on celebrity profiles which appeared around that same time in the Weekly Standard and just takes on all of the ridiculously hagiographic and, you know, over the top personal, confessional celebrity profiles that inhabited the glossy magazines of the age and still do. And this was Andy Ferguson in the Weekly Standard sometime in 1995.
- [71:28]
John Podhoretz
Okay, I'm seeing if I can find. If that is easily linked. We can find that in an easy.
- [71:35]
Matthew Continetti
Link somewhere or it's also contained. Here's another.
- [71:38]
John Podhoretz
In his book.
- [71:39]
Matthew Continetti
In his book.
- [71:40]
John Podhoretz
Fool's Names, Fools Faces.
- [71:42]
Matthew Continetti
Fools Names, Fools Faces, which you can.
- [71:43]
John Podhoretz
Which is downloadable. And if you've never read Andrew Ferguson or Fool's Names, Fool's Faces, you are. You are missing a bet.
- [71:50]
Matthew Continetti
So maybe that's the recommendation.
- [71:52]
Seth Mandel
That's a good recommendation.
- [71:52]
John Podhoretz
That is a great recommendation. Fool's Names, Fool's Faces by Andrew Ferguson. So you can read his seminal piece on the celebrity profile and many other. Thank you, Matt, for meaning that. Happy to step in there.
- [72:02]
Matthew Continetti
Yes.
- [72:02]
John Podhoretz
We didn't, we didn't end on my, on my nihilistic rant.
- [72:08]
Abe Greenwald
It was really my nihilistic suggestion.
- [72:10]
Matthew Continetti
That's what I'm here for, John.
- [72:12]
John Podhoretz
You are, you are, you are. You bring a ray of sunshine to my. Otherwise, yet to our drab, humdrum lives. We'll be back tomorrow. For Matt, Seth and Abe, I'm John Pothoritz. Keep the candle bur.