Randy Barnett on the Secret History of SCOTUS Confirmation Hearings: Podcast

When President Donald Trump nominated Brett Kavanaugh to the Supreme Court, Randy Barnett—a libertarian legal scholar, Georgetown Law professor, and Volokh Conspiracy blogger—praised the choice, writing that “Kavanaugh’s appointment would move the Court in the direction of textualism and originalism. He’s very interested in the separation of powers in general and with respect to the administrative state in particular.”

In a new Reason Podcast recorded at FreedomFest, the annual gathering of libertarians in Las Vegas, Barnett fleshes out his assessment of Kavanaugh, including areas in which the judge is not so good from a libertarian point of view (think Fourth Amendment). Barnett also talks about the history of Supreme Court confirmation hearings and the radical departure things took with the nomination of Robert Bork to the high court in 1987.

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Audio production by Ian Keyser.

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On Taxpayer-Funded Trip, Trump Says: ‘Vote Republican’

There were no campaign events scheduled on President Donald Trump’s taxpayer-funded trip to Illinois on Thursday, but he still implored voters to support Republican candidates for office.

“You’ve got to vote Republican, folks, you’ve got to vote Republican,” he said during a visit to a steel mill in Granite City, Illinois, according to The Washington Post. Three Republican representatives—Reps. Mike Bost (R-Ill.), Rodney Davis (R-Ill.), and Rep. John Shimkus (R-Ill.)—were on hand at the event. Bost and Davis are both facing tough re-election fights, so Trump was likely referring to them when he said, “Vote for these two congressmen; they know what we’re doing. They know what they’re doing. They’re tough, and they’re smart.”

It wasn’t the first time this week that Trump used an official trip to talk politics. Addressing the annual convention of the Veterans of Foreign Wars—as is customary for U.S. presidents—in Kansas City, Missouri, Trump on Tuesday expressed his support for Missouri Attorney General Josh Hawley, a Republican running for Senate.

Following Trump’s speech in Illinois, White House Deputy Press Secretary Hogan Gidley was asked why it’s OK for Trump to be making political endorsement on “a government-paid event, official government business trip.” Gidley replied that there’s “no legal prohibition for that to occur.”

Trump is not the first president to mix politics with official business. As The New York Times noted in 2012, controversy over this practice has risen up many times over the years:

President George Bush made more political trips “than any president in history” before the 1990 midterm elections, The Los Angeles Times wrote, and “by mixing official and political travel” passed much of the cost to taxpayers. Bill Clinton, newly re-elected, “may well have set a record for political travel” in 1997 as he flew to fund-raisers to erase Democrats’ debt, The Atlanta Journal-Constitution reported.

Prior to the 1982 midterms, then-President Ronald Reagan said during an official visit to Ohio that he would like to heap praise on several Republican candidates present—but “this isn’t a political rally, so I won’t say any of those things.”

When presidents travel to explicitly political events on Air Force One, they have to pay the federal government back. Not so in cases like these. This may not be illegal, but that doesn’t make it right. Presidents should learn to keep governing and campaigning separate when they’re using the taxpayers’ money.

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The Accidentally Libertarian Western

When Communists wrote movies in Old Hollywood, the results sometimes were straight-up Soviet propaganda. The most infamous example is Mission to Moscow (1943), a drama so committed to the Stalinist worldview that it includes an extended defense of the purge trials. But that was made during World War II, when both studio and state were eager to praise Washington’s ally in Moscow. Under other circumstances, red writers trying to translate their politics into an American idiom sometimes found themselves in less Leninist territories.

That was one theme of my recent article about the Hollywood blacklist, which noted one peculiar picture in particular:

As the independent historian Bill Kauffman once commented, when communist filmmakers had to work “within studio straightjackets,” they often “channeled their work into ‘populist’ avenues (the small banker fighting the big banks, the lone man against the crowd) and wound up sounding libertarian.”

Take 1958’s Terror in a Texas Town, a Western best known today for a gloriously weird showdown that pits a gunman against a man armed with a whaling harpoon. Here the blacklisted [Dalton] Trumbo (working behind a front) wrote a story in which a wealthy businessman used both private violence and a corrupt government to seize property from independent farmers. I can see why a Marxist would like the movie, but a Randian might appreciate it too. Who exactly was subverting whom?

Terror in a Texas Town came out near the end of the blacklist era, when the rules were starting to unravel. Trumbo still had to work behind a front, but another blacklistee—Ned Young, who plays the villainous gunfighter Johnny Crale—appears onscreen with full credit. I’m glad he’s there, because his performance is the best thing about the movie. (Yes, even better than the harpoon.) The worst thing about the movie is how Trumbo wrote the Mexican characters. They’re patronizing caricatures: the sorts of roles that no doubt felt like a liberal gesture at the time (they’re sympathetic victims!) but now feel cringe-inducingly condescending.

It’s a good film overall: taut and entertaining, with a stark noir look. I’ve embedded it below so you can check it out for yourself. (If you’re looking at this on Chrome, you may see the sort of grey placeholder thumbnail that shows up when a video is missing. But if you click on it, the movie should still play.)

(For past editions of the Friday A/V Club, go here.)

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A Mississippi Police Officer Gets Fired for Using a Stun Gun on a Handcuffed Suspect

|||Screenshot via YouTube/PoliceActivityA Mississippi police officer has been fired after a dashcam video showed him using excessive force on a suspect who was already handcuffed and kneeling on the ground.

The video, recorded on July 16, begins with an unidentified officer approaching a van, which WTOP reports was being driven by a man suspected of shoplifting. The van moves a few feet before the officer draws his gun and gets the driver out of the vehicle.

Police Chief Benny Dubose, who released the footage, says that drawing the gun was justified. It’s what happens next that wasn’t.

After the first officer successfully handcuffs the suspect, other officers arrive on the scene. One of them, Daniel Starks, takes it upon himself to rough up the suspect. (The suspect is not resisting at the time Starks does this.) The men appear to exchange words, and this prompts Starks to rough up the suspect a second time. Then he draws his stun gun and shoots the suspect in the neck without apparent cause.

As Police Captain John Griffith later explained, the fact that he targeted the neck is significant, because this is known to cause more centralized pain.

Starks walks away after the man falls to the ground. Other officers help the suspect get back up. Starks returns and applies pressure on the man’s neck, a tactic reportedly used to force suspects to stand. When it doesn’t work, Starks pulls out his stun gun and threatens to stun him a second time. The man then struggles to get back up and later falls to the ground once again.

Starks was initially punished by being suspended without pay, but this week he was fired. His termination came just a week and a half following the incident. It is not immediately clear if Starks will face criminal charges for his actions.

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Hemp Beer Is Dank, Delicious, and Coming Soon to a Bar Near You: New at Reason

In a lot of ways, hemp and hops seem like they’re just meant to go together. After all, they share common ancestors, common flavor profiles, and common recreational uses, says Tom Hembree, the co-founder of the Dad and Dudes Breweria in Aurora, Colorado.

At the end of 2012, the state voted to legalize recreational marijuana. Since shortly after, Dad And Dudes has been out front in the effort to develop and market a beer made with cannabis. The next batch of brew infused with cannabidiol (CBD) oil, a non-psychoactive compound extracted from cannabis, is almost ready to be put in cans. For Hembree, hemp and other cannabis by-products like CBD are “just another hop essence.”

If only it were that simple.

Beers made with hemp have been around for decades: In 1999, while returning from Mexico aboard Air Force One, President Bill Clinton reportedly sampled some Hemp Gold, a cream ale produced by the now-defunct Frederick Brewing Company of Maryland. But despite the explosive growth of America’s craft beer scene and the growing acceptance of legal weed, the production and popularity of hemp beers have been limited by a litany of federal and state restrictions, while other laws make it difficult to distribute across state lines.

That’s true even in places like Colorado, where craft beer is a booming industry and recreational marijuana is legal. Just down the street from the brewery, you can stroll into a dispensary and find cannabis to be smoked, weed-infused bakery items or candies to be munched, and concentrate to be vaped.

But Dad and Dudes had to get permission from three different federal agencies, along with state authorities, before brewing their George Washington’s Secret Stash—so named because George grew hemp on his farm at Mount Vernon in the days before such production was banned by federal fiat. And when federal rules about using hemp changed abruptly in December 2016, production had to be shut down. “It’s been a struggle,” says Hembree. Only now, a year and a half later, after a lawsuit and with the beer’s legality still somewhat unclear, are they ready to try again.

The loosening of state-level marijuana laws has spurred entrepreneurs to create new and better ways to take a toke. That spirit of innovation has created new opportunities in the hypercompetitive—some might say overcrowded—world of craft beer. But even as more states get on board with marijuana legalization, breweries that want to experiment with cannabis derivatives like hemp and CBD still face a thicket of vague, sometimes impenetrable state and federal regulations. Even breweries, like Hembree’s, that successfully navigate that maze can find their permissions revoked without much warning or explanation. That makes it difficult, if not impossible, for many breweries to invest in this kind of experimentation. In short, hemp and hops can only work together if state and federal regulators get out of the way.

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FBI Love Among Republicans Slips Below 50 Percent: Reason Roundup

Ahh for the halcyon days of, say, 2015, when you could reliably count on conservatives to call for the abolishment of federal agencies and for liberals to be wary of federal law agencies like the FBI. But partisan politics has never been for the principled, and each new administration comes with a reshuffling of the alliance and opinion deck—the Trump era just more so than usual. And so here we have a new poll showing serious slippage in FBI love from right-leaning types and the vast majority of Democrats against the Immigration and Customs Enforcement (ICE) agency.

Alas, some 65 percent of either side still view the Justice Department’s main thugs positively, according to the latest data from Pew Research Center. Only 26 percent overall view the FBI unfavorably.

But on the Republican side, positive feelings for the agency have sunk 16 percentage points since last year, down to 49 percent from 65 percent in early 2017. Unfavorable FBI views among Republicans were at 44 percent, up from 21 percent last year.

Of course, the GOP hasn’t suddenly developed a distaste for drug stings, entrapment, policing consensual sex, no knock raids, and all the other ways the FBI wreaks havoc on American lives. Most evidence suggests this turn is predicated on the FBI’s handling of investigations surrounding President Trump and Hillary Clinton, now and during the 2016 election. But hey—maybe this is a gateway bias accusation, and conservatives will continue to cast skepticism on FBI motives long after we’re done hearing from Robert Mueller. (A girl can dream, can’t she?)

And Democrats haven’t suddenly gone all anarchist, or even a little more limited government friendly, no matter how many #AbolishIce hashtags you see. Sure, 72 percent now view ICE unfavorably—the same percentage as Republicans who view it positively—but 77 percent of Democrats surveyed still had favorable feelings toward the FBI.

Democrats view of the Department of Justice (DOJ) overall has shifted, however, falling from 74 percent favorable in January 2017 to 57 percent favorable when polled this June. Perhaps people don’t realize the FBI is part of the DOJ? As Republican views of the FBI tanked, their support for DOJ has risen, landing around 60 percent favorable, up from 47 percent in 2017.

FREE MINDS

No mandatory reflection period for women seeking abortions, says court. The 7th U.S. Circuit Court of Appeals this week affirmed a district court’s blocking of an Indiana law requiring that those seeking abortions receive an ultrasound at least 18 hours before the procedure. Vice President Mike Pence, then Indiana-governor, signed the waiting-period into law in 2016.

FREE MARKETS

Cutting tariffs behind Trump’s back. While the Trump administration continues to escalate trade troubles with China (and other countries), U.S. senators “quietly passed legislation on Thursday that would lower trade barriers on hundreds of items made in China,” Reuters reports. “With no debate, the Senate unanimously passed a bill that would cut or eliminate tariffs on toasters, chemicals and roughly 1,660 other items made outside the United States,” about half of which come from China.

FOLLOW-UP

“Plaintiffs have standing to challenge FOSTA because the law proscribes online speech in ways that directly threaten Plaintiffs’ expressive activities,” say the Woodhull Freedom Foundation and others challenging the federal government’s criminalization of prostitution ads under the new law.

In a new filing opposing the state’s motion to dismiss, Woodhull, Human Rights Watch, Eric Koszyk, Alex Andrews, and the Internet Archive push back against prosecutors’ assertion that it won’t be used against them—a sexual freedom nonprofit, LGBTQ activists, an erotic masseuse, the head of a group supporting incarcerated sex workers, and an archival database of deleted webpages.

Sure, FOSTA—which prohibits web platforms from allowing any content that facilitates or promotes prostitution—is not “aimed directly at Plaintiffs” and their conduct, as the feds argued. But under the broadly written law—and given what we know about the history of how laws criminalizing sex and speech are used—it’s not at all a stretch to say that FOSTA could be used against any of these groups are individuals. And because of this vagueness and history, websites and platforms aren’t sure how the FOSTA will be enforced and so many have started preemptively no-platforming any content that even discusses prostitution positively, content that discusses legal forms of sex work, content that maybe could be construed as involving sex work, etc.

Read the whole thing here. Then watch as FOSTA’s author demonstrates that she has doesn’t actually understand the definition of sex trafficking under U.S. law or have any idea about the history of sex trafficking law in America.

FOREVER WAR

House honors John McCain by approving $700-billion in military spending, including aid to the Saudis.

QUICK HITS

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Kurt Loder Reviews Mission: Impossible—Fallout: New at Reason

Spy-movie plots are such a chore, especially at this late date. Another nut-job villain? Another knotty scheme to flatline the world? Please.

So let’s hear it for Christopher McQuarrie, writer-director of the latest Mission: Impossible film, who has finessed the fresh-plot problem by basically laughing it off. Oh, there’s lots going on in this movie – and there are lots of places that it’s going on in (London, Paris and Berlin, of course—but Kashmir, too!). However, keeping track of all the narrative permutations—the double crosses, the triple crosses, the face swaps and the falling-outs—would be exhausting. Fortunately, the plot is just a rickety armature upon which the director has hung a one-damn-thing-after-another string of blazing action sequences. There’s nothing to think about. You just set your mouth to AGAPE and lean back, writes Kurt Loder in his latest review for Reason.

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Sacha Baron Cohen Duped Republican Lawmakers Into Saying Some Really Stupid Things: New at Reason

Maybe Norris Sweidan, owner of Warrior One Guns & Ammo in Riverside, ought to be the one on the November ballot for a congressional seat. I don’t know Sweidan’s political views, but he showed more savvy than some current and former lawmakers who were duped by comedian and prankster Sacha Baron Cohen into appearing in a Showtime spoof promoting the arming of toddlers in a “Kinder Guardian” program.

Sweidan recently released a store video to Fox News in Los Angeles showing a bearded man in leather pants entering his store last year with a film crew. They claimed to be making a documentary about a Hungarian immigrant buying a gun. “I’m looking at the producer and I’m just like am I being fooled right here?” Sweidan told Fox. “And I just kept looking at the guy and I was like you’re Borat, as soon as I said that his eyes just looked at me like, and he did a turn right out the door.”

Cohen is best known for “Borat,” a “mockumentary” about a Kazakh journalist who travels around America to learn its customs. The butt of Borat’s jokes were ordinary people who were played for fools.

Cohen’s latest spoof is a Showtime satirical series called “Who is America?” In the first installment, Cohen pretends to be an Israeli gun-rights activist who is promoting a program that would train children to protect their fellow school children by using weapons. He managed to get two American gun-rights activists and current and former lawmakers to say some amazing things.

It’s a cringe-inducing video, writes Steven Greenhut.

View this article.

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Socialism Leads to Misery and Destitution: New at Reason

Socialism is the leading man-made cause of death and misery in human existence, observes David Harsanyi. Whether implemented by a mob or a single strongman, collectivism is a poverty generator, an attack on human dignity and a destroyer of individual rights. To be sure, most so-called democratic socialists—the qualifier affixed to denote that they live in a democratic system and have no choice but to ask for votes—aren’t consciously or explicitly endorsing violence or tyranny. But when they adopt the term “socialism” and the ideas associated with it, Harsanyi writes, they deserve to be treated with the kind of contempt and derision that all those adopting authoritarian philosophies deserve.

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Brickbat: It’s Around Here Somewhere

Far BoyTwo Department of Energy employees left radioactive material in their car when they stopped for the night at a San Antonio, Texas, hotel. The next morning they found their car had been broken into and the material stolen. It joins roughly six tons of nuclear material the government can’t account for.

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