Dems under fire for questioning of Catholic judicial nominee

This is a rush transcript from "Journal Editorial Report," September 16, 2017. This copy may not be in its final form and may be updated.

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(BEGIN VIDEO CLIP)

PRESIDENT DONALD TRUMP: We want to see if we can do something with regard to immigration, with regard to the 800,000 people that are now young people. They're not children anymore. They were children. Now they are young people. But we want to see if we can do something in a bipartisan fashion so that we can solve the DACA problem and other immigration problems.

(END VIDEO CLIP)

PAUL GIGOT, HOST: Welcome to the "Journal Editorial Report." I'm Paul Gigot.

President Trump angering many of his supporters this week with work he's entering a deal with Democrats that would protect hundreds of thousands of young, undocumented immigrants from deportation while postponing talk of a border wall. Wednesdays sit-down with Democratic leaders, Chuck Schumer and Nancy Pelosi, follows an agreement last week to increase the debt limit and finance the government until mid-December. So is either deal good for Republicans and will the bipartisanship extended tax reform create.

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Let's ask Wall Street Journal columnist and deputy editor, Dan Henninger, editorial page writer, Jillian Melchior, and columnist and Manhattan Institute senior fellow, Jason Riley.

Jason, what do make of this bipartisan --

(CROSSTALK)

JASON RILEY, COLUMNIST & SENIOR FELLOW, MANHATTAN INSTITUTE: How long will the kumbaya last week. We will see. Who knows? Even with the deal on the immigrants, on the DACA, the so-called Dreamers, we are getting different messages depending on who you are talking to who is involved in the deal. Donald Trump says we are not as close as Nancy Pelosi and Chuck Schumer --

(CROSSTALK)

RILEY: -- but we are close. But we will see.

I think in terms of immigration, they should make a deal. I think these Dreamers are very popular. Much more popular than the president, frankly.

But also, the restriction, the immigration restrictionists in the Republican party do not represent the Republican Party, let alone the country when it comes to how to deal with people here illegally. I think this will be a very popular thing for the president to do. And it would also give them a chance to do something that neither George W. Bush, nor Barack Obama was able to accomplish. And Donald Trump likes to get accomplishments. He likes compliments. He likes to get things done.

GIGOT: Just so we define who we are talking about here, these Dreamers, 700,000 or so people that were brought here as minors. Their parents or relatives, they did not commit the illegal act of entry by themselves. But now they are stuck here. And may not even know anything about the countries to which they could be deported, Jillian. So there is a real humanitarian concern here. And Donald Trump feels that. He has talked about it personally. But is there a larger strategy here that you can detect with Trump going on, political?

JILLIAN MELCHIOR, EDITORIAL PAGE WRITER: I'm skeptical of a larger political strategy here. I think he is not an ideological guy in a way.

GIGOT: For sure!

MELCHIOR: That makes it difficult to have a strategy. But you are right. When it comes to Dreamers, they are the most sympathetic cause. They do not break the law. They have two pass background checks. They're working. Eighty seven percent are going to college. These are people, the best and the brightest, that we want to keep here. And you see a large public support. So maybe if it is not ideology motivating Donald Trump. That's what we need to pay attention to.

DAN HENNINGER, COLUMNIST & DEPUTY EDITOR: Well, let's look at the politics a little bit. After this decision was announced, the day after, it was not a decision, but the meeting with Nancy Pelosi and Chuck Schumer.

GIGOT: And then there's some common ground.

HENNINGER: There may be some common ground. Even though Trump and been signaling for months that he wanted to do something about the Dreamers. The anti-immigrant restrictionists on the right went insane! They went ballistic! Trump is done, Steve King, of Iowa, was saying, he's finished, his base has collapsed. I think these are the people who are actually out there on thin ice. Trump is doing these deals for one reason, I would say, and that was the failure of the health care reform bill. To help their reform bill failed in the House because the Freedom Caucus opposed it and would not let it go through. Many members of the Freedom Caucus are anti-immigrant restrictionists. These are the people I think who are suddenly isolated by Trump. Whether there is a grand plan or not, I don't know. But if he succeeds out in the country in doing a deal on the Dreamers, I think their base is the one that is in trouble.

GIGOT: Jason, I think that Dan is right about Trump is looking at the failure in health care saying I cannot trust the Republicans here. So if I can't do alone, what alternative do I have? I have to see if there is another way to get things done.

RILEY: He wants to do more than immigration thought. He wants to do tax reform obviously.

GIGOT: Right.

RILEY: This will be pushing it on tax reform, Paul.

(CROSSTALK)

RILEY: There are still a lot of positions out there. Also, he has to worry about Republican voters and the Republican Congress. Presumably, voters gave Republicans majority of the House and Senate because they wanted a Republican agenda advanced, not Obama's third term. So there's only so much deal making I think Trump will be able to do with the other side that his caucus will allow him to get away with. He has to be wary of going too far in this direction.

GIGOT: I think I agree with that because, on taxes, for example, is Chuck Schumer going to allow a reduction in tax rates? Is he going to allow especially at the upper income levels? Will he allow the estate tax to be repealed? Will he allow the corporate tax rate to go from 35 to even 20, much less 15, as the president wants? I do not see him agreeing to any of that. In fact, I see Chuck Schumer saying, Mr. President, I have a deal for you, we will do tax reform, we'll give you a little cut in the corporate rate, you raise taxes on your buddies, on the big shots on Wall Street.

MELCHIOR: Yes. I see them playing up the tax cuts for the rich angle. I really think Democrats have done a good job playing from a position of weakness, dominating the messaging here. I do think that there is a potential opportunity for them to put together on infrastructure spending. That may be one place where they come together. But here we have this legendary negotiator coming in and the deal he made with the fiscal cliff, that sets a very inconvenient deadline for Republicans.

(CROSSTALK)

GIGOT: This is what you're talking, in December, where he postponed the debt ceiling and the government funding decision for two or three months until December. Now they are all meeting at once. And the Republicans fear this will give Democrats more leverage to drive a bigger spending bargain.

MELCHIOR: Absolutely. And it is a distraction when they're trying to communicate their tax message. They're facing this deadline that is very difficult for them to talk about. I think it is not a great deal.

GIGOT: Minimum kumbaya.

(LAUGHTER)

When we come back, as the president pays a visit to Florida's hurricane- ravaged the gulf coast, a look at the government's response to Hurricane Irma and Hurricane Harvey and the work of rebuilding that lies ahead.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

TRUMP: We are there for you, 100 percent. I will be back here numerous times. This is a state that I know very well, as you understand. These are special, special people and we love them.

(END VIDEO CLIP)

GIGOT: President Trump toured the storm-ravaged coast of Florida Thursday surveying the damage caused by Irma, the strongest hurricane on record, and likely one of the costliest. As the long task of rebuilding beginning, could immigration reform be key to recovery of both Florida and Texas?

Dan, terrible scenes, particularly in the Florida Keys. On the other hand, not nearly as many deaths as people feared. A lot of damage, maybe as much is $40 billion or more for Irma, maybe over $100 billion for Harvey. But what do you make of the overall government response here to these disasters?

HENNINGER: Well, you know, from the distance of up in the north, we did not experience this, it is almost hard to imagine what happened. First, Harvey hits southern Texas, an extraordinary hurricane. Sat over Houston for days dumping an enormous amount of water. Then Hurricane Irma comes up across the whole of Florida. I think, by and large, the government's response has been excellent and I think we learned a lot here. There is all of this talk about evacuation. They're not necessarily being evacuating up to New Yorkers. They meant get out of your house, go into an elementary school or a hotel, buildings that can withstand almost any hurricane. I had friends in Florida who left their home on the gulf in Sarasota. They went to an elementary school.

GIGOT: Texting, texting, texting.

HENNINGER: Texting, exactly.

GIGOT: The view from the shelter.

HENNINGER: As a result, a lot of people survived. They didn't get hit by falling down lines, downed trees and so forth. Governor Rick Scott was on television around-the-clock, just the way he should be, telling people what had happened. Keep in mind, Paul, while this is happening, while people are sheltering in place, there are thousands of workers, policemen, firemen, utility workers out there on the front line actually trying to mitigate the worst damage, putting their lives at risk. It was an extraordinary effort I think by the people of Texas and Florida to minimize the damage.

GIGOT: And we know -- one reason we know things have gone reasonably well is that there is not a lot of press coverage about this or that terror. If there was one worst thing was the deaths in the senior home this week because, apparently, they got overheated. People do not take care of that. There's a criminal investigation into that. But overall, the lesson here, maybe FEMA has learned some lessons, right, repositioning things in advance. You get people on the ground first. The private sector has learned some things about how to keep the phone lines going, and which is so crucial.

MELCHIOR: Yes, I think we saw FEMA get in much earlier here. We saw the National Guard getting in preserving law and order. People were able to communicate and listen to their political leaders much earlier on. I think one thing that was extraordinary, we are talking about media coverage, social media, and the response of the public coming together and supporting each other. I think it is something that, as we have a very divided country, this is very reassuring. This is American civil society at its best and American public workers at their best.

GIGOT: Jason?

RILEY: And it's been from the top, down. We've seen President Trump very engaged on this, as well as the vice president, various members of the cabinet. Everyone seems to be have stepped up here, which I think that is very encouraging.

I also -- you know there's been a lot of devastation but I think the recovery will happen. It will not happen at the same pace everywhere. I mean, you look at the city like Houston, it is bigger, it is richer, it is not only an energy hub, but you have an education sector. Medical health care sector there. That may come back a lot faster than a place that depends on tourism for a lot of its GDP, like parts of Florida. So I think the recovery will happen. But we will not see it happening --

(CROSSTALK)

GIGOT: One thing about Houston -- obviously, this was a few weeks ago now -- but the energy industry is -- I mean, the refineries which are down there, a huge chunk of the American oil and refining industry are there. It is back up. And you know, remember all the stories were talking about how gas prices will go up. I think it shows the resilience of this industry. It went up a little bit but I think it was as bad as we thought.

And your point about it helps if you're wealthy.

RILEY: Yes.

GIGOT: By that, I don't mean individuality, but society wealthy. They have the money to spend.

RILEY: We saw that in the Caribbean. Lots of poor countries that are set up as these tours paradises, some the devastation is larger than their GDP, Paul. So obviously, they have a lot more catching up to do.

You spoke earlier about immigrant labor in some of these places. We are seeing a lot of talk about worker shortages in places like Texas. A lot of people in the construction industry left after the housing boom and have not come back yet. Contractors are saying, we need workers. Almost a third of the Texas construction industry are illegal workers.

GIGOT: Trump could help by waiving the I.D. requirements.

(CROSSTALK)

GIGOT: But he could help as Bush did after Katrina.

When we come back, one of President Trump's judicial nominees facing a troubling line of questioning during her confirmation hearing. Are Senate Democrats endorsing a religious test for our federal judges?

(BEGIN VIDEO CLIP)

SEN. DICK DURBIN, D-ILL.: Do you consider yourself an orthodox Catholic?

AMY BARRETT, JUDICAL NOMINEE: I'm a Catholic, Senator Durbin.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

GIGOT: A disturbing line of questioning from the Senate Democrats last week during the confirmation hearings Amy Barrett, the Notre Dame law professor who President Trump has nominated for the Seventh Circuit Court of Appeals. Barrett, a practicing Catholic, faced a barrage of questions about her faith, with Senator Dick Durbin asking if she was quote, "an orthodox Catholic," and Senator Al Franken accusing her of appearing before a hate group for a speech she made to a religious liberty group.

Here is a Senator Dianne Feinstein during last week's hearing.

(BEGIN VIDEO CLIP)

SEN. DIANNE FEINSTEIN, D-CALIF.: Dogma and law are two different things. And I think whatever a religion is, it has its own dogma. The law is totally different. And I think in your case, Professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you.

(END VIDEO CLIP)

GIGOT: John Garvey is the president of the Catholic University of America and Amy Barrett's former law professor.

President Garvey, welcome. Great to have you.

JOHN GARVEY, PRESIDENT, CATHOLIC UNIVERSITY OF AMERICA: Thank you. It is nice to be here, Paul.

GIGOT: You co-wrote an article with Professor Barrett that was much cited in that hearing. It was about the issues that a person of faith, who is a judge, must confront. What were you trying to say in that article?

GARVEY: It was entitled "Catholic Judges in Capital Cases." But it is not a problem unique to Catholics.

GIGOT: It's about death penalty cases.

GARVEY: It's about death penalty cases. There are many others besides Catholics in many of the churches that oppose the death penalty as well. But it was about with somebody who has that sort of religious conviction should do when she is a judge acting in a case where she is obliged to impose the death penalty. That's a dilemma that people of conscience will face.

GIGOT: Where do you come out in that?

GARVEY: In a funny place. In one way, the problem was much more complicated than we supposed. There is a lot of work that conscientious judges can do in capital cases, especially appellate judges that does not present this sort of problem that we imagine but -

GIGOT: Because you are not dealing with facts in that case. You're dealing with the law.

GARVEY: Not just because they're not dealing with the law rather than the facts, but the question that an appellate judge may be asked whether a search that resulted in evidence that convicted the defendant was conducted in violation of the Fourth Amendment. You're not opining on the propriety of the death penalty. But in cases where there is a real conflict, the position we took was that it is proper for the judge, that they should in fact recuse himself, as a federal statute that allows for recusal in that situation, and that's what she should do.

GIGOT: Isn't that what you want in a death penalty case?

GARVEY: It is what you want.

GIGOT: You do not want a judge to be defendant or plaintiff. You don't want a judge who says, I will not recuse myself, even if they do have some religious bias.

GARVEY: You often find people that judges should cheat maybe a little bit in order to bring about the state of affairs that they desire. But we said that our legal system is a just and good arrangement. And judges often try to preserve it. It might be different if you were a judge in Nazi Germany and wanted to undermine the system.

GIGOT: I guess the question is a more practical one, is if you are somebody who has a deep moral faith and you -- that causes you to have to take yourself out, recuse yourself, death penalty case, abortion cases, gay marriage, a fair number of these issues, then I guess a question would be, can you really do your j as a judge? Should you be a judge?

GARVEY: A question worth asking. And one of the things we were surprised to discover was how seldom this sort of conflict will actually present itself. In the case of federal judges, you know, there are just a handful of executions in the last 50 years. So it is not a problem that will arise all that frequently. I think the questioning was not really about the death penalty. I think it was about abortion and same-sex marriage.

GIGOT: That is the real backdrop.

What do you think about the tenor and focus of the questioning on this issue of her, I guess, it is the depth of her Catholic belief, as Dick Durban put it, orthodox Catholic. I do not know. I am a Catholic. I do not know if that is not redundant. But the point is, what do you think -- was that appropriate?

GARVEY: I think it was disappointing. There was an implicit suggestion that religious convictions are somehow -- ought to be treated differently from other deep convictions that people come to the court with.

GIGOT: Such as?

GARVEY: Such as, Lyndon Johnson appointed Thurgood Marshall to the Supreme Court because he was a hero in the fight for civil rights. He would be passing out all kinds of School v. Segregation cases. As Justice Rehnquist once said about this sort of problem when he was asked to recuse himself, someone who arrives at the Supreme Court or another federal courtship will be someone of middle age who has formed a lot of opinions in his or her life.

GIGOT: Right.

GARVEY: And someone who arrives with a mind that is a tabula rasa, there was evidence of lack of qualification, not a lack of bias.

GIGOT: So you hear the phrase from Senator Feinstein, "dogma lives loudly," what you think she meant by that?

GARVEY: I think she meant Professor Barrett may have had a certain set of convictions that she disagreed with and --

(CROSSTALK)

GIGOT: A different dogma.

GARVEY: Not the one she herself has subscribed to.

GIGOT: Is it appropriate for Senators even to raise the question of Catholic belief or Muslim belief or any belief or any faith in a judge? You have people who cite the Constitution saying that there should be no religious test for office. I'm not sure they crossed that line, but did they cross a line by even raising this issue and saying, suggesting by implication that if you are a firm believer, maybe you should stay off the bench?

GARVEY: I don't think we want to disqualify firm believers and conscientious people from serving as federal judges. They are precisely the kind of people we want to serve on the federal judiciary.

GIGOT: And why?

GARVEY: Because people who believe in the law and are committed to justice are the sorts of people whose judgments we want and in cases it's important where life and death are at stake.

GIGOT: And you, I gather, would support Professor Barrett?

GARVEY: Wholeheartedly. I wrote a letter of recommendation for Professor Barrett to Justice Antonin Scalia, for whom she served. My letter of recommendation read, "Dear Justice Scalia, Amy Barret is the best student I've ever had."

(LAUGHTER)]

GIGOT: And again, she clerked for Justice Antonin Scalia --

GARVEY: She did.

GIGOT: -- and Laurence Silberman on the D.C. circuit.

GARVEY: She did. She is.

GIGOT: It is hard to get a better pair of judges.

GARVEY: Hard to get a better pair of judges, and hard to get someone who is more principled, intelligent, just a perfect role model for somebody who ought to be a federal judge.

GIGOT: President Garvey, thank you for being with us.

GARVEY: Thank you very much, Paul.

GIGOT: Still ahead, the Democrats, past and future. Hillary Clinton looks back on her failed presidential bid in her new book as Bernie Sanders unveils his Medicare-For-All plan. Our panel will weigh in on both, next.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SEN. BERNIE SANDERS , I-VT.: Today, we begin the long and difficult struggle to end the international disgrace of the United States, our great nation, being the only major country on earth not to guarantee health care to all of our people.

(END VIDEO CLIP)

GIGOT: Well, Hillary Clinton's memoir of her presidential campaign may be getting most of the attention this week, but if you want to know where the Democratic Party is going, look no further than Vermont Senator Bernie Sanders, who pointed the way Wednesday with his proposal for a complete government takeover of health care. Fifteen Democratic Senators endorsed his Medicare-For-All plan, including possible 2020 presidential candidates, Elizabeth Warren, Kamala Harris and Cory Booker.

We are back with Dan Henninger, Jason Riley and Jillian Melchior.

Jason, why do you think Hillary Clinton wrote this book?

JASON RILEY, COLUMNIST & SENIOR FELLOW, MANHATTAN INSTITUTE: I think at some level, Paul, she owed it to her supporters to explain to them why she thinks she lost the race. And that is still a hot topic of debate why she lost. The party is very divided over why she lost. And I think she says this is my --

(CROSSTALK)

GIGOT: Here is her explanation, James Comey, Bernie Sanders, Barack Obama, the media, everybody but me!

(LAUGHTER)

DAN HENNINGER, COLUMNIST & DEPUTY EDITOR: Do you mind if I make a case for Hillary Clinton in 2020 based on this book?

GIGOT: I am not that lucky, Dan.

(LAUGHTER)

HENNINGER: Hillary must have used the word "progressive" a thousand times in this book describing herself. She also spends a lot of time torching and tearing down Bernie Sanders, not a real Democrat. How could Hillary Clinton possibly think that she can run in 2020? I think it has a lot to do with our political culture. First, we have the Clinton machine. And secondly, think about the media, the prospect of the rematch, the thriller in Manila. Hillary versus Donald begin. A lot of politics is entertainment now in this country, and I think it would be irresistible to a lot of people. I know the progressive would oppose this, but -- and I know it is a long shot, but I am convinced that she is thinking back there that she has a chance to get back in and defeat Donald Trump. It would be the biggest presidential election ever!

GIGOT: So, Jillian, another kind of question that Hillary, about her, is does she have a point that Bernie Sanders really did hurt her by staying in the race as long as he did?

JILLIAN MELCHIOR, EDITORIAL PAGE WRITER: Well, I think the best thing I've heard about this book all week is that it has both the question and the answer on the cover, "What Happened" to Hillary Rodham Clinton? People did not like her. Democrats did not like her. I think the Democratic Party's problem is they put her up when, obviously, they saw this populace moving to Bernie Sanders. It is ironic that in the same week that she is putting the book out, Bernie Sanders is the one dictating the future of the Democratic Party.

GIGOT: But did Bernie hurt her by staying too long? That is her case. When she ran against Obama in 2008, she got out. She knew she could not win. Bernie stayed in until the bitter end.

MELCHIOR: He did.

GIGOT: Did that hurt?

MELCHIOR: I think it did. I think Democrats also need to answer for how rigged their system is to put in their establishment candidate. If it had been under GOP rules, Bernie Sanders would have had a better chance of getting that nomination.

GIGOT: You mean the super delegates?

MELCHIOR: Yes.

GIGOT: Super delegates.

I know a lot of Republicans said I wish we would had super delegates last time. We could have --

(CROSSTALK)

HENNINGER: Don't underestimate Bernie. I think he's playing a long game. And we called, back during the election, when the pollsters would do these head-to-heads, Bernie against Hillary, Bernie against all Republican candidates, back to the primary. Bernie always came in first. He came in first in the head-to-heads including against Donald Trump. He is aware of that. There is some sort of mysterious base of support out there for Bernie Sanders' message and that is why he is out there. He says he will visit every state in the union selling Medicare-For-All.

GIGOT: Let's talk about Medicare-For-All. I think this is going to be his signature issue. He is running in 2020, I believe. And I think this will be his signature issue. It is something he believes in firmly.

And, Jason, a few years ago, this would have been considered, you know, if can't touch this! You'll be accused of being a socialist. Now, you know - -

(CROSSTALK)

RILEY: It might as well be a litmus test now.

GIGOT: Right.

(CROSSTALK)

RILEY: And when you name 15 lawmakers that have lined up right behind Bernie Sanders, I think that is the progressive litmus test. Bernie Sanders has pulled the party toward him. It is not Hillary Clinton's party. You know, it is not Bill Clinton's party. This is a very different Democratic Party. It is much more progressive. And I think they all think they will need street cred as progressives if they want to play in 2020. And pushing it. Notwithstanding the record that this thing has, I mean, we have the Vermont experiments, we have the Colorado referendum, neither one went very well. Bernie thinks this is what this country is longing for.

GIGOT: And again, on that point, Jillian, if Republicans are -- have failed on Obamacare, as they have, and they do not do anything about Obamacare, we know the exchanges will get worse, we know premium costs will go up, we know choices will go down for a lot of people. This creates an opening for single-payer.

MELCHIOR: It absolutely does. I think it makes it all that more tragic that the GOP has squandered this opportunity to pass real reform. And Karl Rove pointed out that many of these Freedom Caucus members that have sabotage the forum have, in practice, ended up voting like Democrats on these things. I think it has given Bernie Sanders a reclaimed Socialist brand and a new opening.

GIGOT: The reclaimed Socialist brand.

(LAUGHTER)

Because it was so great that Albania was pushing it.

(LAUGHTER)

It is wonderful in Cuba.

HENNINGER: Democrats gained so much ground when they rebranded themselves from left-wing to progressive's. Suddenly, progressive is being replaced by the "S" word. How many Democrats are going to run out there and say, "I am a socialist," like Bernie Sanders?"

GIGOT: More than --

(CROSSTALK)

MELCHIOR: He's made it cool.

GIGOT: That's the point! Socialism is cool with people under 30. Don't you think? No?

HENNINGER: Under 23.

(LAUGHTER)

MELCHIOR: In some cases, it is 30.

(CROSSTALK)

GIGOT: Do not forget John McCain's role, by the way, killing health care reform in the Senate. He is the guy who really killed it.

Still ahead, Education Secretary Betsy DeVos taking a closer look at the issue of campus sexual assault and rescinding guidelines issued under President Obama. What it means for the accused and their accusers, next.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

BETSY DEVOS, EDUCATION SECRETARY: The system established by the prior administration has failed too many students, survivors, victims, of a lack of due process. And campus administrators have told me that the current approach does a disservice to everyone involved. That is why we must do better because the current approach is not working.

(END VIDEO CLIP)

GIGOT: Education Secretary Betsy DeVos announced last week that she intends to rescind President Obama's 2011 guidelines for investigating sexual assault on college campuses, acknowledging that it is an issue we are not getting right. DeVos spends months not only meeting with assault survivors and college administrators but also students who say they were wrongly accused and punished under the Obama administration's enforcement of Title IX, the federal law that covers such cases.

Robert Shibley is the executive director of the Foundation for Individual Rights in Education, and author of the book, "Twisting Title IX."

So welcome. Good to have you here.

ROBERT SHIBLEY, EXECUTIVE DIRECTOR, FOUNDATION FOR INDIVIDUAL RIGHTS IN EDUCATION & AUTHOR: Thank you for having me.

GIGOT: Let's start, before we get to Secretary DeVos and her new policy, what was wrong with the old system?

SHIBLEY: Well, the old system made a trade-off that we think didn't need to be made. They tried to trade the rights of people who are accused in order to try to create a system that it was felt would be more comfortable for victims and survivors to use in order to come forward. Unfortunately, what it did was, would everyone have predicted who knows something about due process, when you reduce due process, when you reduce the protections for the accusers, you start to get better decisions and you start to get less careful versions of justice. And that is what we saw happen.

GIGOT: Just to be specific, the due process changes involved for -- let's be specific. One of them I think was changing the boundaries of evidence needed to find somebody guilty from beyond a reasonable doubt to the preponderance of evidence, which is a much lower standard.

SHIBLEY: That's right. For the first time, the federal government said, all schools who get federal funding, which virtually is all of the public or private schools, have to use the preponderance of evidence standard, which is a 50.01 percent, sort of 50 percent-plus a better standard of certainty. School before they had been free to use various standards. Another thing that they did was discourage the use of cross-examination.

GIGOT: So the accused would not have had the ability to cross examine a witness necessarily, which is a fundamental right obviously of the defense in this country.

So what do you think of Secretary DeVos' fix?

SHIBLEY: I think it does, indeed, need to be rescinded. I think consideration of due process is long overdue here. There is no reason we cannot both have due process, the procedural protections that you and I would expect if we went even into traffic court for these much more serious offenses on college campuses. There is no reason we can't do that and also serve the needs of the victims and survivors.

GIGOT: She is also going to do it in a rulemaking not just a letter. Initially, there will be a letter but ultimately it will be a formal rule unlike the administration before which just issued this letter, which allows you to evade that public comment period of 90 days that we really have come --t that ought to be attending new rules.

SHIBLEY: That's right. One of the real problems with implementing the April 4, 2011, letter we are talking about is because it sort of -- it was sprung on universities and certainly on civil liberties like us. Nobody had a chance to comment on it. If we had, maybe things could have gone differently for the last six and a half years.

GIGOT: This is one of the things I wanted to ask you about. If you are a college administrator, you get the letter -- I mean, I have heard from many of them. They said, look, we had to go this direction and towards the preponderance of evidence standard to limiting due process, because if we didn't, there was an explicit threat that they would take away college funding. Are these administrators going to be free now to change that standard and restore due process?

SHIBLEY: That seems likely. The question will be whether or not they are going to go ahead and actually restore the due process. Obviously, there will still be under a lot of political pressure from folks that do not want the due process protections. But at least the government will have gotten out of the way. It is not sufficient step but it is a necessary step to restore due process on campus.

GIGOT: What do you think -- I mean Joe Biden, the former vice president, came out with a very tough statement saying that this is actually denial of rights, denial of protection when protecting women on campus, and this downgrades protections for sexual assault. What is your response to that?

SHIBLEY: Well, we obviously disagree with the vice president. We think it is very important that victims of sexual assault have protections but a "Dear Colleague" letter which, as you said, did not even go through comments, certainly doesn't have the force of law, it is not fundamental to the operation of Title IX. We can make sure that people do not suffer sex discrimination on campus, including sexual assault, without this rule by letter that Secretary DeVos can justifiably say is over.

GIGOT: Other than Secretary Biden -- I mean, Vice President Biden and some of the other -- a few other comments, one of the things that I have been cheered by this week is that there has been a relatively modest counter reaction to this. It has not been as loud and critical as I might have thought. I wonder if you think -- you look at the American university, the culture. Is there some recognition even on the part of the left that this effort in the Obama administrations went too far and was unfair?

SHIBLEY: I think there is a recognition of that. These are very traditional values that are honestly not a partisan issue. People on the left and the right think it is important, for instance, to have a presumption of innocence. They put out a recent survey where we found out the top 50 schools, nearly 75 percent of them do not presume students are innocent when they are accused of things like this.

GIGOT: Right.

SHIBLEY: That is not a partisan issue. That is a popular issue.

GIGOT: All right. Thank you, Robert Shibley. Good to have you here.

SHIBLEY: Thank you.

GIGOT: When me come back, U.C. Berkeley faces the first test of its renewed commitment to free speech on campus with this week's speech by conservative author, Ben Shapiro.

(COMMERCIAL BREAK)

GIGOT: U.C. Berkeley once again at the center of a debate over free speech on campus after protests broke out Thursday at an appearance by former "Breitbart" editor, Ben Shapiro. At least nine people were arrested and an estimated $600,000 spent on security for the event. This week's protests follow an attack by Antifa activists on right-wing demonstrators in a Berkeley park last month. And a speech by controversial blogger, Milo Yiannopoulos, was canceled in February when black clad anarchists stormed the campus, smashing windows and setting fires.

We are back with Dan Henninger, Jillian Melchior and Jason Riley.

Jillian, it looks like it was not as bad as people feared at Berkeley. What happened?

MELCHIOR: I think what happened was the chancellor is committed to free speech. She said the university had a moral and legal obligation, and

(CROSSTALK)

MELCHIOR: Yes. That did not come cheap. They spent $600,000. They have police in from all 10 University of California campuses. The speech was able to proceed. You didn't see outside activists showing up. There were nine arrests. I think we've seen that if colleges are going to protect free speech, it will be expensive.

GIGOT: And she had to essentially disagree and stand up against the Berkeley mayor, who had wanted the whole free-speech week event to be shut down.

MELCHIOR: That was absolutely shameful. He was calling for the university to shut it down, saying that basically these speakers were inviting violent protests. And I think maybe Berkeley is the best positioned university to educate him about victim blaming. This is classic victim blaming. I expect progressives to be all over this.

GIGOT: But there was -- this does Carol Christ deserve some credit here?

MELCHIOR: Absolutely.

GIGOT: I mean, she's no conservative. But she's standing up and saying that we must represent a defense of free speech. She said, you know, the answer to this is more speech.

MELCHIOR: Yes. I loved her comments on free speech. I think she was also profound when she said the best form of safe space is inner resilience. She was noting what she is hearing from students is that what she's hearing is that speech that offends us, that hurts our feelings is the equivalence of violence. And unfortunately, that is an idea that a lot of young college activists are embracing. I think what we are seeing at Berkeley is that you have a generation coming out that does t appreciate free speech. Berkeley, obviously, symbolic here.

GIGOT: And, Dan, it is very dangerous.

HENNINGER: It is very dangerous, yes.

GIGOT: To think that there is a younger generation that thinks that free speech, which is enshrined in the Constitution for a reason, like tyranny, is somehow now suspect. Could lead, in turn, to tyranny.

HENNINGER: Yes, and it is not just -- it is free speech certainly and -- but this is not just about people like a Breitbart editor speaking at Berkeley. There's also the issue of free academic and intellectual inquiry, the foundation of the Western system and the progress we've had --

GIGOT: Since the Enlightenment.

HENNINGER: Since the Enlightenment. And what Jillian is describing is a new idea that some of the things that professors do or say is defined as violence against certain protected groups. Often when professors have no idea of how they have offended them. But these groups will simply refuse to allow the teachers to teach. And often they're trying to drive them up campuses. I think people like the chancellor at Berkeley, and there is a growing understanding across academia that this has become a threat to their very existence, their ability to do what they do as professors.

GIGOT: Jason, on that point, we have seen a few people fight back. The University of Chicago, for example, issued a statement of principles that some universities signed, Mitch Daniels at Purdue, some others. Finally, saw the liberal academy, the liberal in the classic sense of free exchange, some of them are beginning to fight back.

RILEY: Sure, some are. I would like to see a lot more. I spent a fair month of time speaking on college campuses. I would like to see a lot more of it than I do. I would also like to see pushback from Democrats and liberal politicians, who I think they're treating these Antifa groups with kid gloves. This is part of their base, the core of the resistance for Donald Trump. We saw how minority leader, Nancy Pelosi, came out. She took her time coming out and denouncing, but she did, announcing Antifa by name. But we have not seen a whole lot of that. And I think we should. I think this group needs to know that they will be isolated on all sides.

GIGOT: Just like the radical right would be isolated.

All right, we have to take one more break. When we come back, "Hits and Misses" of the week.

(COMMERCIAL BREAK)

GIGOT: Time now for our "Hits and Misses" of the week -- Jason?

RILEY: Paul, former White House advisor, Steve Bannon, told "60 Minutes" recently that the Catholic Church's empathy for illegal immigration is driven not by compulsion, but by finances, by money. A big mess for Mr. Steve Bannon. The Catholic Church has long believed that kindness to the stranger is taught in the Bible. Kindness to the alien is taught in the Bible. It is always said we do this because we are Catholic, not because they are Catholic.

GIGOT: OK.

Jillian?

MELCHIOR: Wichita State University had a fraternity this week that hung a banner saying that "free tours were available." This got reported to the Title IX office. Student Affairs condemned it as sexual harassment. I think is a huge miss. It's creating a campus climate where fraternities being open and inviting people is considered a sexual offense.

GIGOT: Why was it a sexual offense?

MELCHIOR: In theory, because vulnerable young woman could come into the fraternity and that's encouraging a rape culture.

GIGOT: Yikes.

OK, Dan?

HENNINGER: Paul, the monument misses just keep piling up. This week, activists in New York defaced the statue of Christopher Columbus, whose famous voyage led to the creation of what we know we call America.

(LAUGHTER)

Meanwhile, at the University of Virginia on Tuesday, they draped a sign saying "Racist" on a statue of Thomas Jefferson, who incidentally ran -- wrote the Declaration of Independence. But a hit to the president of the University of Virginia, Teresa Sullivan, who called that a desecration of sacred ground. Paul, we need more pushback like that.

GIGOT: All right, thank you all.

Remember, if you have your own hit or miss, please be sure to tweet it to us, @JERonFNC.

That's it for this week's show. Thanks to my panel. Thanks to you for watching. I'm Paul Gigot. We will see right here next week.


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