This is a rush transcript from "Journal: Editorial Report," September 8, 2018. This copy may not be in its final form and may be updated.
(BEGIN VIDEO CLIP)
SEN. KAMALA HARRIS, D-CALIFORNIA: Judge Kavanaugh, I am concerned whether you would treat every American equally or, instead, show allegiance to the political party and the conservative agenda that has shaped and built your career.
SEN. RICHARD BLUMENTHAL, D-CONNECTICUT: We are in unchartered territory here. It is unprecedented for a Supreme Court nominee to be named by a president who is an unindicted co-conspirator.
SEN. CORY BOOKER, D-NEW JERSEY: I sincerely believe that the public deserves to know this nominee's record. In this particular case, his record on issues of race and the law.
This is about the closest I'll probably ever have in my life to an "I am Spartacus" moment.
(END VIDEO CLIP)
DAVID ASMAN, FOX HOST: More on that in a moment.
Welcome to the "Journal: Editorial Report." I'm David Asman, in for Bob Gigot.
That was just a taste of this week's hearings for Supreme Court nominee, Brett Kavanaugh, who faced, at times, hysterical grilling from Democrats, from anything from abortion rights to presidential powers. The hearings also looking a lot like the kickoff of the 2020 Democratic presidential campaign. But the party's base is apparently not pleased with how the Kavanaugh resistance is going. More than a dozen progressive groups releasing a letter on Wednesday accusing Senate Minority Leader Chuck Schumer of, quote, "failing" in his efforts to stop the confirmation of President Trump's second Supreme Court pick.
Let's bring in the panel. We have "Wall Street Journal" columnist and deputy editor, Dan Henninger, Columnists Kim Strassel and Bill McGurn, and assistance editorial page editor, James Freeman.
Good to have you all here.
Dan, let me start with the Spartacus moment, as he, himself, described it. Senator Cory Booker, turned out, his willingness to fall on the sword, as he was putting it, was all an act, that he had permission to release the papers that he claimed he was going to release in a very self-sacrificing mode. He had permission to release those the night before.
DAN HENNINGER, COLUMNIT & DEPUTY EDITOR: Yes, we all remember Kirk Douglas in "Spartacus." Cory Booker was about as far as you can get from the bravery of that movie.
He's running for president. But you know, it was one thing after another. It was Cory Booker or Kamala Harris, who is probably also running for president. David, people complain all of the time about the degree of polarization and partisanship in our politics, and they ask, where is it coming from. We had a two-day display by the Democrats on the committee on what the basis of this partisanship and polarization is. It was relentless. There was absolutely no effort to engage the nominee in anything serious. It was once speech after another. Senator Blumenthal calling the president an unindicted co-conspirator.
ASMAN: Which is not true.
HENNINGER: It is not true. So the parties have just been driven that far apart and there's no way to see them come together after a display like that.
ASMAN: But, Bill, it was so transparent. There is a difference between taking a stand and grandstanding, and I think Americans saw the difference.
BILL MCGURN, COLUMNIST: Yes, and I think you hinted at it in the introduction. For most Americans, this was a hearing about a Supreme Court nominee. For the Democrats, especially Cory Booker and Kamala Harris, this was the first primary of the 2020 season.
Look, the progressives that complained, the groups, they actually specifically claimed to Chuck Schumer that he was a bad leader because he hadn't got all Democrats to vote no. The problem is, even if you've got all Democrats to vote no, Brett Kavanaugh is still going to be confirmed because this is a lot of sound and fury signifying one thing, they don't have the votes.
ASMAN: James, I'm wondering if they would have been better off doing what some had said they should have done, which was just walking out at the beginning of the hearings. They could have spared not only themselves embarrassment but the rest of us a lot of our time.
JAMES FREEMAN, ASSITANT EDITORIAL PAGE EDITOR: Well, I think if they declined to participate in the U.S. Senate, they may invite a change in the rules, which allows Mitch McConnell's majority to have even more freedom of action.
But I would like to speak up for Mr. Booker and grandstanding in general here. I think we have been so concerned about Democratic politicians drifting toward the Bernie Sanders left, embracing truly radical policy positions, but this is kind of nice if he's just pretending to be radical.
I think that's better for the country than someone who is actually radical.
ASMAN: Well, it may be. On the other hand, I don't know if hysteria is good at all for anybody.
Kim, there was this sense of a hysterical tone during some of the hearing here. And I'm getting a sense and a lot of it is because there's so much disappoint on the part of Democrats that they're not getting things that they thought they were entitled to. Starting with the election, they thought they were entitled to have the election. Then the Russian collusion story, they thought they had that nailed down. And of course, Supreme Court justices, and ultimately an impeachment. That's also what they think they're entitled to.
KIM STRASSEL, WASHINGTON COLUMNIST: Well, all of that was driving this.
But it gets to the question of, what was the purpose, what were they trying to accomplish here. In a smarter world, they would have been trying to attempt to persuade a couple of Republicans that is this guy wasn't confirmable, that he shouldn't be on the court. Of course, he is so well qualified, that wasn't likely to happen. Instead, they decided on theatrics. The question is, does those theatrics help them in any way? It might help Mr. Booker or Ms. Harris, who are heading themselves for a presidential run. But in the hearing now, what they have done elevate the question into a litmus test, as we were talking about with the progressive groups, and they have put their most vulnerable Senators, those who are up for reelection this fall in states that Trump won, in an impossible position. Because they are upping the pressure on them to have to vote no, and for many of them, that no vote could prove decisive and may seal their fate in reelection bids this fall.
ASMAN: Yes. Who thought it would come down to Supreme Court?
Dan, there was a little bit of substance. Senator Whitehouse, I believe it was, tried to prove that a lot of Kavanaugh's decisions were based on personal prejudice, whether it dealt with an abortion decision, an under- age immigrant or certain business decisions he made because he was so- called pro-business. That was rejoined by Senator Cornyn, who came in and found -- explained that this is a man who was right in the heart of Washington, D.C., during 9/11. He was evacuated from the White House along with other Bush members, the Bush administration. And yet, at one point he was -- he had to decide on the fate of Osama bin Laden's driver. I think his name was Hamdi (ph). And he actually ruled in favor of Hamdi (ph) in that decision, despite his personal background on 9/11.
HENNINGER: Yes. One of the primary reasons that Brett Kavanaugh was nominated was the quality of his legal mind. And he made it clear in answering questions like that by citing specific precedence that were basis of opinions that these results were not because of his personal prejudices on any of the issues, but because the law prescribed. And that's the definition of an Originalist and that's why Brett Kavanaugh is ascending to the Supreme Court.
ASMAN: I will tell you that Hamdi (ph) decision is a perfect example of that.
Still ahead, we are going to be talking to President Trump's chief economic adviser. Larry Kudlow is going to be here to talk about another strong job's report this week.
But, first, questions of presidential power taking center stage in this week's Supreme Court hearings amid talk of presidential subpoenas and pardons in the Mueller probe.
(BEGIN VIDEO CLIP)
SEN. DIANNE FEINSTEIN, D-CALIFORNIA: Let me just ask you this. Can a sitting president be required to respond to a subpoena?
(END VIDEO CLIP)
(BEGIN VIDEO CLIP)
FEINSTEIN: Can a sitting president be required to respond to a subpoena?
BRETT KAVANAUGH, U.S. SUPREME COURT NOMINEE: I can't give you an answer on that hypothetical question.
FEINSTEIN: You can't give me an answer on whether a president has to respond to a subpoena from a court of law?
KAVANAUGH: Each of the eight judges currently sitting on the Supreme Court, when they are sitting in my seat, declined to decide potential hypothetical cases.
(END VIDEO CLIP)
ASMAN: Questions of presidential power taking center stage with this week's hearings with Supreme Court nominee, Brett Kavanaugh, refusing to say whether he believes a sitting president can be subpoena. The hot- button issue as lawyers for President Trump continue to negotiate with Special Counsel Robert Mueller over the terms of a potential interview in the ongoing probe of Russian interference in the 2016 election.
Former Justice Department prosecutor, James Trusty, joins me now.
Good to see you, Jim. Thank you for being here.
JAMES TRUSTY, FORMER JUSTICE DEPARTMENT PROSECUTOR: Sure.
ASMAN: Obviously, he's been charged, Kavanaugh, as being appointed or being nominated specifically because he's seen as being favorable to the executive. Did you get a sense one way or the other whether Democrats hit a sore spot this week?
TRUSTY: No, I think it's pretty well established at this point that a Supreme Court nominee is not going to give their final formulated opinions about whether they would get on hot-button issues. I think Judge Kavanaugh was entirely within his rights to basically beg off answering the question. The funny question is it's a difficult question even if you had the restriction. It's not clear that a sitting president should be subjected to a subpoena.
ASMAN: Right. I think because of all of the suspicion the Democrats have put out there about this, he did seem to say that -- that there was -- there were moments at which judicial power was much stronger than executive power and where the executive had to give in because the rule of law affects everybody even if you're president.
TRUSTY: Yes, Judge Kavanaugh has a lengthy record of court opinions. He also has old, you know, law review articles where he specifically talks about the fact that there are going to be times in our country's history where an independent counsel or a special counsel is going to be needed. He recognizes that there's limits on all three branches of government and articulates it in a pretty clear and pretty well-spoken way.
ASMAN: You mentioned the subpoena. What about the power to indict a president? Do you think that that could be in the mix during his term as Supreme Court justice?
TRUSTY: Well, it certainly could be in the mix. Remember, at this point, the president has only been identified as a subject.
TRUSTY: So it doesn't look like it's red hot that he's about to face indictment. But again, the founding fathers may not have anticipated that exactly issue, or maybe they did, but the Constitution doesn't make it 100 percent clear whether a sitting president can be indicted or not. It at least suggests to a lot of people that the political fallout from criminal activity ends up in impeachment proceedings, not with separate criminal prosecutions brought by individual prosecutors.
ASMAN: Notwithstanding all of the fireworks that went on this week, and there were quite a few, what -- did you get a better sense of what kind of justice you think Mr. Kavanaugh is going to be?
TRUSTY: Well, you know, I look at it more as a lawyer than a partisan.
TRUSTY: And I think the guy is pretty impressive. I mean, he comes off very measured, very judicious in his temperament. He's citing Federalist Papers like I might cite a "Family Guys" episode. He definitely knows his history of this country and its jurisprudence. And I don't think you can realistically say that he's been caught up or trapped or hurt in any way politically or elsewise. I think he comes off as a pretty smooth operator, a pretty good judge. And I can't see anybody really changing their minds through this process --
ASMAN: The question that I have, and I think, frankly everybody knows he's basically conservative, but whether he's going to be a moderate conservative, the Kennedy style, or a hard-nosed Libertarian like Scalia was. Any sense there from what he said this week?
TRUSTY: No, I think it's a wait and see. But, you know, that's kind of the beauty of this process in a weird way. It's nice to have judges where you can't predict with absolute certainty where they are going to go. And I take him at his word when he says he waits for the dispute to be crystallized in front of him, he doesn't prejudge anything. That's really what we want from a judge at any level.
ASMAN: He does have strong record in terms of business decisions, arguing against government regulators who might have overstepped their bounds, which they very often do, these bureaucrats. He has more than 70 decisions in which he sided against the government regulators. Does that give you a sense that he is going to be more pro-business than perhaps a lot of the justices?
TRUSTY: It certainly gives you that opening prediction. But everything can change when they go back into chambers, and that's what you really don't know, is exactly how persuasive will be the people who may not be like-minded or whether he feels additional strength in that position from some of his colleagues.
TRUSTY: And so, you know, at end of the day, you can guess a little bit and you can say that he looks like he might be pro-business, anti- regulatory, but how that actually plays out in the individual case is yet to be seen.
ASMAN: And, Jim, finally, you had the unenviable job, as prosecutors and lawyers do, of trying to talk to juries about legal decisions, which is very difficult because sometimes legal decisions are filled with all kinds of stuff that -- that normal people can't understand, only you lawyers can. I think that he cut through a lot of that. And that's one of the jobs of the Supreme Court is to cut through the legal jargon and go directly to the American people and say, this is what makes sense based on the decision. I sense that he has that ability, did you?
TRUSTY: Yes, I think his history and just the way he speaks at either nominations or now confirmation hearings makes it clear that he's got a little bit of a teacher in him, which is a good quality for an attorney. It means that he can take something that's very complex and break it down into the basic building blocks in a way that's either persuasive or instructive or humorous or all the above. So I think that's a real skill for any justice to have and any attorney to have.
ASMAN: James Trusty. Great to see you, Jim.
ASMAN: Thank you very much for being here. Appreciate it.
Still ahead, President Trump's chief economic adviser, Larry Kudlow, joining the show.
But, first, claims of chaos in the West Wing. So how should the president respond to this week's "New York Times" op-ed and a forthcoming book about his White House as well? We ask our panel, coming next.
(BEGIN VIDEO CLIP)
DONALD TRUMP, PRESIDENT OF THE UNITED STATES: The failing New York Times has an anonymous editorial. Can you believe it? Anonymous, meaning gutless, a gutless editorial. We are doing a great job. The poll numbers are through the roof. Our poll numbers are great. And guess what, nobody is going to come close to beating me in 2020 because of what we've done.
(END VIDEO CLIP)
ASMAN: President Trump on Wednesday touting his administration's accomplishments amid opposition claims of an uprising that is boiling up within his administration. One specific charge coming from this anonymous author of a New York Times op-ed claiming to be a rebellious senior member of the administration. All this, just ahead of the release of new book of Washington Post reporter, Bob Woodward. So is this a White House with an internal rebellion going on?
All right, Bill, you worked in the Bush administration. There's always discontent. I've talked to people in administrations. I don't know if I talked to you in the administration.
MCGURN: And malcontents.
ASMAN: And malcontents.
But this goes way beyond that?
MCGURN: Yes. In some sense, this is no different from the game most days in the West Wing. When you look at the "Washington Post" and you try to figure out which of the colleagues leaked the story that he shouldn't have done, right, this takes it to the end degree. It is extraordinary the claims that -- look, when you work for a president, you have to decide, are you for him or against him, can you stomach all the things. Because I wrote a lot of pro ethanol speeches, you know, for my sins, but I supported President Bush on the war and larger issues, the economy and life and so forth. And if you can't serve a president honestly, I think, the course is an honorable resignation. And for a man to say, I'm a staffer and I'm steering the president in the right direction, well, the American people get to make that decision --
MCGURN: -- at the election.
ASMAN: Kim, also in terms of the impact on President Trump, it might actually turn out to be a positive because this kind of -- this kind of holds up, bolsters his point that there's the deep state against him within the bureaucracy.
STRASSEL: Well, that, too. And also the fact that, you know, when you read this op-ed, it's very easy to doubt the sincerity of the writer. Look, because if he or she was doing as they claim they are, that they are there to try to keep the president in check and temper his worst inclinations, why would you go write op-ed that's waving a red flag in front of a bull --
STRASSEL: -- and cause all the more outburst. Of course, you would quietly continue on your way doing what you've been doing instead of flagging it publicly. So it looks insincere. As you said, it does - it will -- his supporters -- he's mentioning it, getting huge applause lines when he talks about how he's fighting not just Democrats in Washington but even within his own administration. He has to take them all on.
ASMAN: Right, right.
And, James, then there is the switch, the focus of the New York Times itself publishing this thing, an anonymous source with a lead editorial like this, what do you think of that?
FREEMAN: Well, I guess we should applaud them for this time putting them in opinion pages rather than the --
ASMAN: Rather than - although, it was on the front page, but that's another story.
FREEMAN: Anonymous insults of the president, I don't really see the value of this. I think --
ASMAN: Is it journalism? I mean, doesn't -- doesn't the editor, even of an editorial page, have to respect the viewer enough to share with them details of who is writing the piece.
FREEMAN: Generally, if you're going to allow this kind of anonymous shot, it is for a -- an extreme very-specific circumstance, an Iranian dissident who will be shot if their identity is revealed. Someone else in a situation where the only way that the truth can come out is by concealing the identity. I don't see how that applies here. And the underlying truth is kind of a nothing story.
ASMAN: In the 90's, there was a time when the Wall Street Journal had the editorial of woman who had been raped and did not want to be identified for obvious reasons. There are these moments. But this does not seem to be one of them.
HENNINGER: Yes, and I think the American public is increasingly mystified by what is going on. What is going on, David, is this is basically the seven-year's war between the Washington press corps and President Trump. It's like the press has surrounded the White House. They have the catapults set up. They are throwing boiling water and oil in there all of the time.
The president is firing back at them. And people are saying, what the heck is going on. We thought the press was supposed to report the news. All they report on is Donald Trump and his ragings.
Look, any White House is going to have a president who says things that the administration officials don't carry out. Lyndon Johnson was famous for that. Richard Nixon was famous for that. This is no different. But as Larry Kudlow is pointing out in the show, you've got an administration that, policy-wise, is having a lot of success, despite what this anonymous writer is saying.
ASMAN: Yes. That's got to be the last word.
Still ahead, a better-than-expected job's report giving Republicans more economic news to run on in the midterms. As we just heard from Dan, we will be talking next to White House chief economic adviser, Larry Kudlow. That is next.
(BEGIN VIDEO CLIP)
TRUMP: Thanks to Republican leadership, our economy is booming like never before in our history.
(END VIDEO CLIP)
DAVID ASMAN, FOX HOST: More really good news for the U.S. economy with employers adding a better-than-expected 201,000 jobs in August. This, as yearly wage growth hits a nine-year high.
Let's bring in White House chief economic adviser and good friend, Larry Kudlow.
What would you say the headline of the story is today?
LARRY KUDLOW, WHITE HOUSE CHIEF ECONOMIC ADVISER: You know, I think here is the broader headline, the single biggest news story in 2018 by far is an economic boom that almost everyone believed to be impossible. That, to me, is the story, not all this other stuff that pops up periodically. The economy is booming on all cylinders. There's been a big change in policy and attitude and confidence.
And let me add to that, this is -- this is middle-class-working folks, better paychecks-kind of stuff. And it's not over. It's not one quarter or two quarters. Every reading I have -- I used to do it for a living -- it's going to go on for quite some time. That's the story, David, an economic boom folks said couldn't happen.
ASMAN: It is extraordinary. When you look back at some of the comments -- I mean, Paul Krugman, on the night of the election, suggesting that we were going to go into a crisis that we never recover from. But after the tax cut was put forth, you had Nancy Pelosi saying it was going to lead to an economic apocalypse. All the predictions. I mean, there are political ramifications to this economic success that you have. I mean, you have to recognize that. You have played both sides of that coin.
KUDLOW: Look, I don't want to politicize this. Here is what I want to say-- you can buy my book or not -- JFK, the Democrat, lowered marginal tax rates, kept the dollar sound, minimized regulations, and we had a seven or eight-year boom without inflation. Years later, Ronald Reagan, a former Democrat, then Republican, followed JFK's advice, incentivized the economy with lower marginal rates, keep the dollar sound, minimize regulations. These are different individuals. I'm not here to say that President Trump is like Ronald Reagan or like JFK, except he is following a very similar economic policy path, and it is working as the others worked. We wrote about this. So we will see. I know I have critics, I know there are folks who don't agree, and I respect their point of view. But that model, OK, low tax rates, sound money, less regulation, et cetera, we've all talked about this for a long time, it appears to be working. And at the very least --
ASMAN: Well, it's not rocket science. You are one of the smartest people I know, as are a lot of the people you work with. But it's not rocket science. It's very simple. You make it cheaper for businesses to do business and you will have more business. You make it cheaper by deregulation, lowering taxes, onerous taxes, and -- and you do the right things and business will respond. Incentives matter. That's the simple message, no?
KUDLOW: It is. Art Laffer was in yesterday. He spoke to our NEC cabinet lunch. He also spoke, I don't know, 20 or 25 minutes with the president, walking through a lot of these themes. I know, you know, President Trump, there's all kinds controversies. We can get into that if you care to. All I'm saying is the president, from day one, has followed sound economic policies, and the growth effects are kicking in. Again, at the risk of being -- 2018, the big story, not -- not phony editorials in the New York Times. I'm sorry. It's an economic boom and the recovery of the United States, and that includes the recovery of the middle class.
ASMAN: Let me ask about one thing that some critics are harping on, that the labor force participation did come down a little bit. Does that bother you?
KUDLOW: No, but it has more room to rise and we are keeping an eye on that. And --
ASMAN: Why do you think it went down?
KUDLOW: On a month-to-month basis, it's impossible to tell.
KUDLOW: I would only suggest this, part of that calculation is wages. And we are seeing improvement in wages. Very important, middle-income wages. In the report today, average hourly earnings up 2.9 for the 12 months. Our Kevin Hassett, from the C.A., did a terrific study to recalculate. After taxes, after inflation and benefits, and so forth, real wages for worker much stronger --
ASMAN: Household income is up and the attitude of people, the people feel more comfortable going out and buying things, which also helps the economy. I just want to ask you something a little --
KUDLOW: Confidence, just one quickie on that.
KUDLOW: The confidence thing is phenomenal. And that has to do with the change. We are not punishing business and investors right now and we are promoting entrepreneurship. Inside the numbers -- I don't want to get into the weeds but you guys are weed people. You look at those numbers today, average hourly earnings, yes, up 2.9 percent, terrific. But to do that right, David, for working folks, you to multiply that times hours worked. And so what you've got, on a 12-month basis, is a 5 percent increase, OK, in middle-class wages, 5 percent.
ASMAN: Very good. Very important.
KUDLOW: I just knocked out 2 percent inflation.
ASMAN: I have 30 seconds, Larry.
ASMAN: I have to hit on one thing that's beyond our borders, down in Argentina. A country that you and I visited together once many years ago. We love it. They are in deep trouble. They've had to go to IMF in order to get an emergency loan for the trouble they're in. The IMF has demanded that, in exchange for their loan, they have to raise their export taxes, which is going to hurt their economy. I know the Argentines. I know some of the people in the government. They hate IMF's medicine. They actually hate IMF to be honest. They would much rather be dealing with the U.S. Treasury in some form. Is there any chance that that could happen?
KUDLOW: Yes. The treasury is deeply involved in this discussion, deeply involved, which is a great thing. And as you and I learned, and others, the only way out of Argentina's dilemma is to set up currency board, the peso links to the dollar, but you can create a single new peso. No money creation unless you have a dollar reserve behind it. That worked in the 90's. It brought down inflation and kept prosperity. That's what they need to do it again. And you know what, Treasury Department people are on it. They are on it, David. So keep hope alive on that point.
ASMAN: There's hope for Argentina. That's great to hear.
Larry, great to see you.
KUDLOW: Thank you.
ASMAN: Great to see you doing so well.
KUDLOW: Thanks you.
ASMAN: God bless you.
KUDLOW: Thank you.
ASMAN: And God bless your heart. I know you had a little issue but it's all over now. Thank you, my friend.
KUDLOW: Thank you. Appreciate it.
ASMAN: Appreciate it.
Still ahead, amid accusations of anti-competitive behavior and political bias, Twitter and Facebook executives face a grilling on Capitol Hill. So can government regulation of big tech be far behind?
(BEGIN VIDEO CLIP)
JACK DORSEY, CEO, TWITTER: I want to start by making something very clear. We don't consider political viewpoints, perspectives, or party affiliation in any of our policies or enforcement decisions, period. Impartiality is our guiding principle.
(END VIDEO CLIP)
ASMAN: Twitter CEO Jack Dorsey defending himself this week against accusations of political bias. Twitter and Facebook executives were grilled on Capitol Hill on Wednesday amid the growing debate over whether conservative viewpoints are suppressed on social media platforms and in search functions.
The Justice Department announced on Wednesday that Jeff Sessions will meet with state attorneys general later this month to discuss concerns that tech companies may be, quote, "intentionally stifling the free exchange of ideas on their platforms."
Well, James, the market didn't think much of Mr. Dorsey's comments because Twitter was way down on the day that he testified.
JAMES FREEMAN, ASSITANT EDITORIAL PAGE EDITOR: Yes, and I'm not sure any of us should think too much of them. They have had to change the algorithm that they wrote with their opinions that was exerting some bias against conservatives. But I don't think Jeff Sessions has the right idea either. There's a problem here. There's an extreme left-wing bias among a lot of these Silicon Valley companies. But I think there's a market solution. And I think the real danger here is if you get a deal with Silicon Valley giants and Washington politicians to make the Federal Trade Commission some giant Internet regulator. I think we would all regret it forever. So I hope that's not where this is going.
ASMAN: I think you may be right.
Well, Kim, the bias does appear to be real. Congressman Jim Jordan and others were talking about how they were shadow banned by Twitter, an expression that means a way that they can ban, kind of a subtle banning of what they do. What should government do, if anything? The president, himself, said earlier that he doesn't want regulation of the Internet, but he says he wants things to change. How do you change things if you don't regulate?
KIM STRASSEL, WASHINGTON COLUMNIST: Well, look, one thing is keeping attention on it, like they did with the hearings, which in my mind is the best way forward. If there's enough pressure on them, they will eventually, hopefully, change their practices before government acts. But history shows that if they don't act on their own, the American people will ask government to do it, and they will find themselves in a much more worse situation if that's where they end up.
ASMAN: Dan, there's competition. To James point, you don't have to go to Google. By the way, Google was a no-show at the conference. They didn't show up at all because they wanted to present a secondary figure. The Senators wanted somebody more primary. But you can go to Bing. Bing is owned by Microsoft, a competitor to Google. And I, for what it's worth, when I put in a search request with Bing, they are different from the search responses you get from Google. I think a little less biased.
DAN HENNINGER, COLUMNIST & DEPUTY EDITOR: Well, I don't know. I mean, Google and Facebook control the markets they're in. If you can put a search term in Google, the algorithm immediately goes through billions of web pages. Facebook has billions of users. These two companies have got their arms around the ocean. It's like trying to regulate or control the movement of the waves in the ocean. And they have got to come to grips with the fact that, on the one hand, they have the huge unprecedentedly large companies making extraordinary amounts of money off politics and off the news, and they can't just stand there and say, we are nothing more than a conveyer belt funneling all of this stuff out with neutral algorithms, because nobody believes that entirely.
ASMAN: They are different.
Bill, we have the whole Alex Jones thing, which he has been banned for life -- a term I haven't heard since Soviet Union existed -- from Twitter. Fair enough, this is not a government. This is a private company and they can do what they want. But it shows a certain contempt for the concept of freedom of thought and freedom of speech.
BILL MCGURN, COLUMNIST: Well, look, I'm less concerned about Alex Jones. And one of the problems I think they have is, if you rely on human judgment for a lot of this, it's beyond their control. These algorithms, you may be aiming at Alex Jones and hit others. I will give you a perfect example. Elizabeth Heng is Republican running in California, family were refugees from Cambodia. She put up a campaign ad talking about her parents fleeing the killing fields and it was banned by both Twitter and Facebook as offensive or inappropriate content. That's the problem. A lot of conservatives get hit by this. I agree, I don't want the federal government regulating them, but I think that they will have to answer to this.
ASMAN: And 30 seconds with the answer, James?
FREEMAN: A lot of it is the courts just implementing existing law. They've interpreted this shield they have on the premise, a liability shield on the premise that they are just neutral operators of the tech platform. The more they start editing, editing out some voices and not others, the more legal problem they should have.
Gentlemen, lady, thank you.
When we come back, Nike courts controversy with the choice of Colin Kaepernick as the new face of its marketing campaign. Our panel's thoughts on that and the politics surrounding the NFL's new season, next.
ASMAN: As the NFL kicked off its regular season on Thursday night, all eyes were on the commercial breaks with Nike launching an ad featuring Colin Kaepernick as the new face of its "Just Do It" campaign. Nike's choice of Kaepernick, who set off the wave of kneeling protests in the NFL, has caused an outcry with some even burning Nike shoes and sportswear in protest.
President Trump weighed in on the controversial pick Wednesday tweeting out, quote, "Just like the NFL, whose ratings have gone way down, Nike is getting absolutely killed with anger and boycotts. I wonder if they had any idea that it would be this way. As far as the NFL is concerned, I find it hard to watch, and I always will until they stand for the flag."
And, Dan, this vindicates you. You had a piece, months and months ago, saying that baseball is the only all-American sport we have left. Does this prove that?
HENNINGER: Absolutely. It's the only apolitical sport we have. Does Donald Trump tweet about baseball players? Not at all. I mean --
ASMAN: That's a good point.
HENNINGER: -- we spent this entire program talking about politics, the war between the New York Times and Donald Trump. By Sunday afternoon, what do most of us want to do? Just sit down and watch a good athletic contest and not be exposed to the politics of these NFL players and fighting with the president of the United States.
ASMAN: Bill, to be picky, this ad campaign says that he sacrificed nothing to stand up for what he believes in. He got paid millions. We don't know how much. He got paid a lot of money for this.
MCGURN: It makes me wonder whether Nike has within its ranks the senior executives and anonymous trying to do Donald Trump's work.
Look, they are betting that their audience is more woke and they'll have younger audience. There's a morning consult poll that showed his favorability was down, even in groups targeted, Millennials and African-Americans and so forth. There's a lot of history of companies getting edgier than their customers. So we'll see in the end.
ASMAN: And this guy, James, as a role model. The fact is he was a losing quarterback. He had terrible seasons. He was on his way out as a starting quarterback anyway. This is a time when he decided to make his move.
FREEMAN: He had some good years, too. He's certainly a talented guy.
Just to Dan's point about being able to enjoy a game on a Sunday, and I think without a lot of the politics brought in, I think people actually do prefer football. I know I do. And I think maybe this is -- this is the way back to that, where this wasn't a highly political or radical ad. It was really Kaepernick sort of standing up for a bunch of underdogs and maybe this is the beginning of the end of the controversy.
ASMAN: But you know, Kim, I can't get beyond those socks. It's very simple for me. I don't like anybody kneeling for the flag, certainly. I've got a son in the military. But the socks that he wore that portray cops as pigs, that was what just did it for me. I can't even look at the guy anymore.
STRASSEL: No, and a lot of people who look at this ad are going to be put off by it. It's probably going to put more people off of watching the NFL. That's one of the league's problems. Ratings have been falling. It's predicted to fall again this year. You kind of have to wonder if they don't wish they had done what George Steinbrenner did for the Yankees in the `70s when he set up his "no facial-hair" policy and there was no arguing with it. You want to play for the Yankees, this is what you're going to do. One and done and get it over with. Because this just keeps dragging on and it's not helping the NFL or the players.
ASMAN: You bring up a great point, Kim. You're an employee. You're an employee. It's not the question of citizenship. It's a question of what you have to do in order to stay and play.
There's the question of whether Nike is -- may in the end, some people say, could benefit from this. Phil Knight, the founder of Nike, retired now, but he still takes active job in participating with the company's future. He would always push the edgiest stuff possible because we're talking about it, folks, and that's part of the reason they did it, right?
HENNINGER: Nike's sales were down and they needed to do something. Please don't groan. But Phil Knight and Nike are throwing a Hail Mary with Colin Kaepernick. They needed to become a conversation piece again. And they have succeeded at that. It was a marketing ploy.
ASMAN: Yes. And we are talking about them.
MCGURN: Yes, and so is President Trump. It might be good for Nike, but for the NFL to pick this one man. Nike supplies the NFL with uniforms, too. We will not hear the last from Donald Trump.
ASMAN: We are a month away from baseball season. I will spend a lot of months wishing we were back in it or at least hoping that we get there soon.
Thank you, folks.
MCGURN: Two months.
ASMAN: Appreciate it.
We have to take one more break. When we come back, "Hits & Misses" of the week.
ASMAN: And it is time for the "Hits & Misses" of the week.
Kim, first to you.
STRASSEL: David, this is a hit for Senator John Kyle, who has agreed to temporarily fill the seat of the recently departed John McCain. Senator Kyle was in the Senate for 18 years. He's immensely respected. He left in 2013 well before the Trump hoopla. He likely has no interest coming back to do that. And he says he's not going to do it long term. He said he wanted to see that business got done. That's something that we should admire him for, especially in light of the circus we saw there this week.
ASMAN: Yes, it was an inspired pick. And Cindy McCain, by the way, gave her approval to it as well.
James, hits or misses?
FREEMAN: David, we have been talking about how all players stand for the anthem this weekend. I would like to salute another group of people at the game who will be both sitting and standing. Those are American tailgaters who really haven't gotten enough credit for all the innovations in recent years.
FREEMAN: You have gone from a few sandwiches and a cooler and maybe a thermos of coffee to amazing multi-course grilling, couches, even satellite television at some tailgates. It's been exciting.
ASMAN: We wish them the very best.
Bill, what do you have?
MCGURN: A hit to Britain, which, this week, charged two Russians with poisoning an ex-Russian spy and his daughter on British soil earlier this year. The spy who was poison was hit with nerve agent. It also inadvertently killed a British woman who accidentally came in contact with it. The British are not likely to get the two men that they've accused, but Britain's security minister puts the blames squarely on Vladimir Putin and he warns that Britain will respond with both overt and covert measures.
All right, Dan?
HENNINGER: Well, David, I'm going to get hit to Senate Majority Leader Mitch McConnell, who doesn't get that many hits these days as a matter of fact.
HENNINGER: Well, he and the Senate have just recently confirmed Donald Trump's 60th judicial nominee, adding 33 to the district court and 26 appellate court nominees. One of President Trump's primary promises during the campaign and Mitch McConnell is delivering on it.
ASMAN: It's extraordinary when you think where they came from.
ASMAN: They were so far behind and they've caught up and now exceeded the normal.
Thank you, everybody. That was a great show.
Remember, if you have your own "Hits & Misses," be sure to tweet it to us, @JERonFNC.
That's it for the show this week. I'm David Asman. You can catch me on the weekdays on "After the Bell" on the Fox Business Network, at 4:00 p.m. Eastern time. Paul is back next week. We hope to see you then.
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