Shownotes
A number of SCOTUS decisions are being made prior to the 4th of July weekend.
Here's an overview of our common sense take...
The decision is limited to admissions and does not apply to other areas like scholarships or job promotions.
The court ruled that race can be considered as part of a person's story in admissions, but cannot be the sole factor.
The hosts debate the effectiveness of affirmative action and the use of standardized tests in admissions.
They argue for a holistic approach to admissions, considering a student's overall qualities and background.
Concerns are raised about admitting students who may not have the intellectual capacity to succeed in certain institutions.
The hosts mention the importance of addressing underlying issues that contribute to disparities in test scores.
Concerns about the fairness of affirmative action and potential discrimination based on race are expressed.
The importance of treating individuals as individuals and protecting individual rights is emphasized.
The historical context of the 14th Amendment and its original purpose of protecting the civil rights of black people is highlighted.
Stephen Palmer is the Managing Partner for the law firm, Palmer Legal Defense. He has specialized almost exclusively in criminal defense for over 26 years. Steve is also a partner in Criminal Defense Consultants, a firm focused wholly on helping criminal defense attorneys design winning strategies for their clients.
Norm Murdock is an automobile racing driver and owner of a high-performance and restoration car parts company. He earned undergraduate degrees in literature and journalism and graduated with a Juris Doctor from the University of Cincinnati College of Law in 1985. He worked in the IT industry for two years before launching a career in government relations in Columbus, Ohio. Norm has assisted clients in the Transportation, Education, Healthcare, and Public Infrastructure sectors.
Brett Johnson is an award-winning podcast consultant and small business owner for nearly 10 years, leaving a long career in radio. He is passionate about helping small businesses tell their story through podcasts, and he believes podcasting is a great opportunity for different voices to speak and be heard.
info@commonsenseohioshow.com
Recorded at the 511 Studios, in the Brewery District in downtown Columbus, OH.
Copyright 2024 Common Sense Ohio
Transcripts
That's a reversal good enough to come up here. It's like an alternative world that is totally a reversal of fortunes. And I salute you, my man. That is awesome. Place to be.
Steve Palmer [:Let's get right to it, guys. I know there's lots going on. I mean, householder, boy, he got jackhammered. But aside from that, norm, I'll let you take it.
Norm Murdock [:Well, to me now, this is perhaps my own personal fascination with this issue. I have a long, long history involving myself, my positions on this issue, and even my children. And that is the topic of affirmative action. The most epic thing. I mean, it is dobbs level, like the overturning of roe. This decision yesterday could have an incredible effect on other affirmative action areas. So this decision, unfortunately, the way our legal system works, the way the court hands down decisions, this is specific to the topic of admissions to universities and colleges. I wish that the court had been a little broader in its opinion, but it's confined to admissions. Naturally. We have affirmative action in scholarships, promotions, hiring in the jobs market. There are affirmative action targets that the court left intact. You can't use race to decide whether or not a student yes, no can attend a university, be admitted, but you can still per the decision, per a caveat written in there by roberts, who wrote the majority 63 opinion. He said race can be part of a person's story. So if a person grew up in some kind of terribly biased community, and their story is that they overcame and somehow their race is a factor in their story, that that can be considered by the admissions committee, but their race itself cannot be considered. So there's a little nuance to their decision. But overall, basically, two wrongs do not make a right. So the fact that there was historical bias doesn't mean that today, 50, 60 years after affirmative action started, they've come full circle. And now we're back to what the 14th amendment really says, which was to protect freed blacks. Ironically, that was a purpose of the 14th Amendment. Now the 14th Amendment is being used to say, hey, black folks do not get extra credit for the color of their skin on admissions. It's just that neither do whites, neither do Chinese, neither do Koreans, neither do American Indians. Nobody doesn't matter. And of course, that's the way it always should have been.
Brett Johnson [:Yeah. I think as well with this ruling, as we've seen through COVID, the act and the Sat test are just going to the wayside. And this test have never been pro minority. It's been proven that those that of color and education level just don't do well on those tests or if you have just test anxiety overall. So I think you're right, painting that picture of where you've been, who you are, how you got to where you are holistic admission is the way to go. And hopefully this ruling really pushes that. I mean, maybe 50, 60 years ago that affirmative action piece was kind of a wake up call going it was trying to do the right thing at that time, but it's gone out of hand. And now it's one of those let's just look at people holistically and see what they bring to the table today.
Steve Palmer [:Yeah, I mean, I think from a constitutional perspective, I've not read this entire decision. I've read some of it, little clips of it that I've seen others commenting on it. And norm, you said it's limited to the college admittance environment, but this is like there was a case up in Michigan, I think it was Baki, B-A-K-K-E or something like that years ago, right back in the 80s that said you could deem race a plus in considering somebody's admission. And I think what the Supreme Court was trying to do back then was sort of what they're doing here is like throw it into the milkshake of things and make it part of somebody's story. But, Bret, I do agree it's gotten somewhat out of hand because I think on its face, nobody would be cool with admittance discriminating against somebody because of the color of their skin. And if your skin happens to be white and they're saying, well, you're no good because of your color skin, you're not going to be a candidate or you're going to get put to the bottom of the pile is no less offensive than if your color is black and you get put to the bottom of the pile. Now, then you have to start to figure, all right, so if we want to raise certain classes of people into a different place in society, then how do you do that? And I think it's been proven time and time again, just putting kids in college, whether they're black or white or Asian or green or yellow or brown, it doesn't make any difference. If they don't have the intellectual capacity to be at Harvard or to be at Yale or to be at an Ivy League, then it doesn't do them any favors to be there. And I'm saying that me included. I don't think I had the intellectual capacity out of high school to go compete with the folks at Think. I think Thomas Sold did a whole I can't remember if it was an essay or one of his books on this. I think it was like race and Racism in America or something he wrote. And his point from an economic standpoint is what you do is you set certain classes of people then up for failure. And rather than putting kids who can't compete in Harvard, we'll put them in a school where they can compete and then they're going to like there's a reason that it we're not all built the same, and it's not based on the color of our skin. It's based on our minds and what we're capable of doing with our minds. Some people are going to be better at driving race cars. Some people are going to be better at fixing race cars. Some people are going to be better at the law, and others are going to be better at math. To say that our society should frame a system or a structure that equalizes everybody across those lines is absurd on its face. If it's true that minorities perform worse on SATS and acts, then we should figure out why and address that problem than just get rid of the standards. And I get it. I've never tested well. My act was crap for law school, you have to take an admittance exam. And mine was crap. But then I went to law school and I did quite well. So I'm not advocating for standardized tests, but I think I would respectfully disagree a little bit, Bret, is that if minorities are performing worse, then I don't think the fix is to get rid of the test. I think the fix is to figure out why, if we can, and what are we really testing. And maybe we do need to get rid of the test, but just not because true.
Brett Johnson [:At least it's not as much as a focus. It's now a bit more holistic view of the student, which I like. They're kind of downplaying that number, which I like. The test is a test. Yeah. I mean, it's not going to go away. There's too much money flowing there. But it's that, okay, let's take a bigger picture. Yeah.
Steve Palmer [:And you make a good point. I think we have lost. This is where this push for equity eats itself, because what we've done is to treat everybody equally. You create a standardized test so you plug in numbers and the numbers come out, and that's how you create your hierarchy of who gets admitted first. But I guess I'm changing my mind in real time, it does sort of fly in the face to create a standardized process for anybody depending irrespective of your color. If you don't test well, then if that's the only criteria, then you get shoved to the bottom. And that's what happened to me in law school, frankly. And then I think what happened is that was all we were looking at are those standardized scores because that quote eliminated all aspects of individual subjective selective or individual subjective criteria for selection. And I think that sells the school short. I think there are kids who aren't going to test well whether they're black, whether they're Asian, whether they're white, who have a lot of other stuff to offer short of their test. You know, if you're an artist, are you going to get and you happen to think artistically you may not test well on the math parts of the standardized testing, but you still got lots to offer. Or like you said, Bret, you have anxiety. And I always had test anxiety. There's a funny story. When I took my law school admittance was it the LSAT norm? I forget the LSAT. And the first thing we had to do on that was write out the oath in script cursive and I didn't know how to write incursive. I had forgotten. So I spent ten minutes freaking out over this and I had anxiety about it. And I of course, tested horribly on LSAT, took it again, tested horribly again and went to a law school where I could compete, I guess. And then I did quite well in law school. So it's know, I don't know what that would have been. How would I would have done at Harvard or Yale or if I think if the Ivy Leagues or anybody would consider people holistically like you're saying, Brett, I think we might end up better off. Now how do you standardize that and prevent you know, that's always the question. So if you could prove that somebody didn't admit another individual because of the color of their skin, then I'm right there. I'll represent you. I'll represent the person who has been discriminated against.
Norm Murdock [:Right.
Steve Palmer [:But I think what's happened is we are drawing broad swath presumptions that somebody didn't get admitted because of the color of their skin. And that may not necessarily be true. Now, if it is true, let's go fight that. But certainly I think what's happened is it's swung way too far the other way.
Norm Murdock [:Yeah, certainly the intention of affirmative action itself is diametrically opposed to the Constitution and the Declaration of Independence philosophy wherein many justices over the last 240 years or 250 years of American history have said on many occasions that our system protects individual rights. It doesn't protect group rights. It doesn't take people and say, well, we do this for rich people and we do this for middle class people or we do this for green people and this for yellow people and this for red people. It just doesn't do that. That's not how we set up our government. We're so unique in that way from other countries. And affirmative action militates against that very American philosophy that each person is to be assessed, judged, has their freedoms, has their dreams, has their opportunities individually, and we protect everybody as an individual. The 14th amendment, which was done after the civil war in order to protect the civil rights of black people, doesn't say, this is for black people, right? It's for all of us. So it's not like it's built in for a certain race. And ironically, the 14th amendment was largely ignored the past 50 or 60 years. While this feel good, we got to do something, we got to do something.
Brett Johnson [:And it was probably a bad situation 50, 60 years ago, it probably was. And it was a situation like, we've got to take care of this, so we're going to do this.
Norm Murdock [:Well, it's all been outcome determinative, so I'm going to tell a story on so I was obviously, we all evolve. As a young man, I was on campus at UC, decided to throw my hat in the ring, and you go to these various groups, various student groups, and they either endorse you or not, right? So I appeared before the black students association seeking their endorsement, and they asked, well, what is your feeling on affirmative action? And at that time, I said, I think we need affirmative action for a period of time until as rough justice, as a rough medication for our society, to bring more blacks onto campus, to scholarship them, to give them the ability to rise up, pull themselves up. And that was my feeling at that time. And by the way, I got their endorsement. Right back then, identity politics wasn't like it is today. I didn't have to be a black person myself in order to get the black endorsement. Now it's like you can't get the polish endorsement unless you're a poll or whatever or part pole, probably. Yeah. It's insane how our country has reverted back in ways that are very racist in the name of being progressive. It's bizarre. And this decision is excellent in terms of batting that down. I think it'll be very popular with most of the American people because they've seen the other side of it. The other side I wasn't thinking of, frankly, at the time as a student, because when I then applied to law school and I graduated magna cum laude, I had close to a four point and all this stuff, and I was looking for a scholarship. I'm at the top of the heap, I thought. And the admissions officer for law school said, well, you're the wrong gender, and you're the wrong color. She was that frank with me and just told me, you're not going to get a scholarship, and blew me away. And I think a lot of people have seen that.
Steve Palmer [:Go ahead. I'm sorry.
Norm Murdock [:Well, I'm just saying a lot of people have seen that, and we've had JD. Vance on the show, for example, there are, excuse the phrase, a shit ton of oppressed of people that have been savaged in our economy and by policy in appalachia that are poor, white, excuse the word trash. As JD. Vance discusses himself as a hillbilly. His words, he's a hillbilly. That's what he says. He yet look how well he's done. He went to know and excelled. Now he's a US. Senator. So we shouldn't be talking about race. We should be talking about opportunities. Doesn't matter what your color.
Steve Palmer [:You know, there's certain things that are just sort of hard for us to swallow, and that is like, all why? And I'll just ask rhetorical questions. Why, for instance, do Asians seem to do better at math across the board? How do we square that? We don't square that by saying that we've discriminated against everybody else who's not Asian, and therefore that's why they've excelled. It just doesn't add up. On the other hand, those differences are there. So the educational system, I think, left to its own devices, will sort of sort that out. The kids who are good at math will go do math. The kids are good at acting will go hit the arts. Those who shouldn't go to college at all probably shouldn't go to college at all. And I think part of this problem stems from that, which is we went through this I remember Bill Clinton, everybody ought to get an education. Everybody ought to go to know. Like Mike Rose says, that's total BS. Not everybody should go to college. And in fact, I wonder if I would have. But for those kind of messages, and I've done quite well, but has always been mechanically inclined. I always like to work with my hands. I always like to be outside. I always like to be tinkering with something. And I went to college, so I don't do those things necessarily. Like, maybe I would have been better in that realm. And it doesn't mean that I'm worse or somehow lesser than those who are academics. I think we've elevated college to this sine quainon. Unless you go to college, you've got nothing and you're worthless. And that's a slap in the face for everybody who should not go to college, who doesn't want to, and those.
Brett Johnson [:That gone to trade school that are making hundreds of thousands of dollars.
Norm Murdock [:Right? Absolutely.
Brett Johnson [:My gosh.
Norm Murdock [:The supreme Court today is said to be issuing a decision on the biden student loan college student loan forgiveness program, which he implemented without congressional approval. That's supposed to come out today. And so, Steve, we'll find out whether our society is so biased towards college and helping people go to college. And as I've said on this show many times, where is a federal program to buy a plumbers? A young man who goes into plumbing his truck and his ridgeline tools to thread pipe and do all the things he needs for his profession. Why is it that we give loans at a low interest rate to help people get a degree in college, but we don't do the same thing for other people choosing other avenues for their occupation? It's bizarre to me. I don't understand it. And it doesn't make any sense to forgive that because then it's a gift by the taxpayers. It's an underwriting, even more so than a low interest rate now. It's an outright grant to largely well to do people or take it back. Middle class people who as adults signed this loan agreement and said they will pay this back upon graduation over a period of time. Hey, it was an adult decision. They took it. They need to pay it back like I did. Like you did. I'm sure Bret did. Like anybody who went to college and participated in a student loan pays it back. I mean, come on.
Steve Palmer [:This is a classic example. My analogy I always use is because I'm speaking of work in my hands, I love woodworking. Anybody who's ever tinkered with building a frame which requires four perfect 45 degree miters. And if you get one of them off and you think you can adjust it a little bit, then what happens is it throws everything else off. And the more you tinker, the worse it gets. And drywall is a little bit like this too, once you start tinkering. Well, I'll fill this high spot or that. Next thing you know you're skimming everything and you can't fix it and it's a disaster. And I think when the government starts to tinker, like we're going to give people free money or very low interest money to go to college, it sounds awesome. Except then what happens? Well, the price of college goes up. Of course it does, because now the colleges are going to add programs, add space, build buildings, hire teachers, hire professors to accommodate the new influx of students who are now going to come into college who otherwise wouldn't have gone to college but for those government loans. And then what happens is they get degrees and they're worth us because there's too many people with the same degree and it doesn't get you anywhere. So people get out of college and they can't really get jobs. That's how I saw it. I lived it back in the for sure. Now we've got the government trying to fix it by forgiving the debt that they created. I mean, it's so insane, right? They don't blame themselves. They blame the colleges for raising their prices. Well, of course the colleges are going to raise their prices because they've got more demand and you can't legislate away human nature. This is what resulted. This is like the classic microcosm of socialist and communism failing, right, because you can't control, you can't dictate what people do out of their human natures.
Norm Murdock [:Government edict and colleges and universities do not have to compete in the open marketplace in an unfettered way. They can basically charge whatever they want. And they know the students who are not thinking about paying off the loan down the road, many of them are not thinking about that. So they can charge virtually anything, and it's guaranteed by the federal government. The colleges are not the collection agents anymore. They don't go out and go after a bad loan. They get their money from the government. Yeah, right, Steve. They're happy. And so OSU can just willy nilly raise their tuition, and there'll be some grumbling from the very small handful of people paying cash. But basically, probably 95% are on some kind of a loan of some kind, and they kind of say, well, that's deferred down the road and maybe Biden will lift the burden off of me. I'll worry about that in four or five years.
Steve Palmer [:The advocates of this sort of governmental intervention would say, well, these colleges are charging too much. We should create laws that they can't charge so much. So now the government's going to dictate how much college costs, and next thing you know, the market's out of whack. Now you're at the next 45 degree minor that gets all screwed up because now the colleges have it's an endless tinkering that results in financial disaster and ruin. It always does. Now, I'm also not going to say that the free market is perfect, but it's a hell of a lot better. Because when you have your own money on the line, when you're spending your own money and you are on the hook for it, you're going to tend to do things that are going to make more financial sense.
Norm Murdock [:You'll shop around, you'll shop, you'll shop around, you'll shop around.
Steve Palmer [:At one point, I was involved in this situation. I didn't want to get into too much, but I had somebody go shopping for me for a tailgate or a party I was throwing, and I was caught up at work, so I had somebody go shopping, and I looked at the bill afterwards, and it was insane because they didn't buy the store brand cheese. They bought the most expensive cheese. They didn't buy the crackers I would have bought. And why? Because it's not their freaking money. Why would they care?
Norm Murdock [:Hey, Steve, like taking your sons out to Morton's Steakhouse, right? Will they order the flank steak? No, they're going to get the Porter house. Right? Because Dad's paying.
Steve Palmer [:Give him that guilt ridden look, right?
Norm Murdock [:Yeah.
Brett Johnson [:Don't look at that page. Sons, you're going here.
Norm Murdock [:I would like to, on the affirmative action thing, also like to bring up this notion it's all over the media, right. So even if you listen to conservative talk radio, the way it's being framed by almost everybody is extremely inaccurate. Right. They call this a conservative decision. They called Dobbs, which overthrew Roe a conservative decision. Neither this affirmative action nor Dobbs are conservative decisions. What they are is originalist decisions. It is based on the original intent of the Constitution and reading the Constitution for what it says. Now, if we want to pass a constitutional amendment that institutionalizes Roe in the Constitution, get your ass in gear. If we want to put into the Constitution that blacks have an advantage in college admission, then write up that amendment, go through the rulebook in the Constitution itself to amend the Constitution. But if you read the constitution and the original intent and you go to the amendments which are on the books today, there is no excuse for a decision like Roe, nor for affirmative action. And so it's you, for all I know, the six justices and I think Clarence Thomas is, in his written opinion, even states, I benefited from affirmative action. Okay. He said that in his decision, in his concurrence. But that's not the point. You may be totally against affirmative action, or you may be totally for it, but if you're an honest, originalist jurist, you will disregard your personal opinion and read the Constitution and apply the case. And apply the Constitution to the case. That's how it should be framed. Go ahead.
Steve Palmer [:Yeah, Norm, also, to your point, what is interesting, and this is where I think a lot of people on the other side of the like calling these justices conservative with sort of a disdain in your voice.
Norm Murdock [:Yes.
Steve Palmer [:What people on the other side don't understand is that this often leads to outcomes that the conservative movement, or maybe the Republican side or whatever side you're going to call it, doesn't like. And it's because when justices decide cases on a common thread of principle throughout and they apply that, it's not outcome driven.
Norm Murdock [:That's right.
Steve Palmer [:There was also a couple decisions recently where the US. Supreme Court, if it was at Louisiana, where they struck down some voting district law that's right. There was competition between the state supreme court and the state legislature. I haven't read this either, but they struck it down, and it was a Republican legislature trying to get voting district laws in their favor, and I think the courts of that particular state were against it. Well, the supreme court decided against the Republican interest, and it's not that they decided against the Republican interest as such. It's that they applied the principles of the law, and it came out differently. And this is where the progressive movement on the supreme Court fails all the time, and they end up with crooked lines of standards, because when you decide cases from an outcome driven standpoint that's right. You're going to end up with all sorts of crazy results, because on the one hand, you want to make it a plus for a minority to get into school, but that results immediately in discrimination against other whites or even other minorities. And then what do you do?
Norm Murdock [:Well, you change the rules. To your point, Steve, this case was brought by an association of Chinese heritage American students who brought this case against the University of North Carolina in one case, and then it was combined with another case involving Harvard. And so, Katanji, is it Jackson brown or brown? Jackson. I always get it messed up, but KJB, I think it's Katanji Jackson brown. She recused herself from the Harvard decision. So that's a six two. The University of North Carolina was six three. She was on the board at Harvard, so she recused herself. But you're exactly right on target. Making it outcome determinative, as the dissenters in this affirmative action case pointed out, is a disaster because it was another minority group right. Who said, hey, wait a minute. By showcasing, by helping a certain skin color, you're discriminating against us. And quite frankly, I believe in a meritocracy. I am so colorblind that if Harvard ended up with a 40% Chinese heritage student body, it wouldn't bother me at all. I don't care. I'm colorblind to it. It just doesn't matter to me. But yet they found when they did discovery, part of what they found out by the Harvard admissions office is they didn't like the and this is as racist as it gets. This shows you how racist affirmative action can be. The Harvard admissions officers were found to have discussions about Chinese students and I mean Chinese American students having a bland or a stoic personality and that the campus atmosphere would be different if they just went on merit and let in. And I think the figure would be about 40% is what they figured out it would have been if it was colorblind on Harvard admissions and if it was just by testing and by grade point average. And how racist can you get to take a broad brush?
Steve Palmer [:Remember where it all started. It started because we wanted equality of testing and then that didn't work because you had too many people in one group testing better than too many people the other way. We wanted it all blind.
Norm Murdock [:Right.
Steve Palmer [:So then that resulted in a desperate outcome or desperate impact on minorities. So we can't do that now. We've got to start tinkering with it another way. The 45 degree minors just keep getting worse.
Norm Murdock [:Yeah. And you're talking about personality characteristics of an entire racial how racist is that? That's crazy. That's crazy talk. That would be like saying if you admit a large population of black African American students that, oh my gosh, there'll be a lot of rap music being played in buildings, will get tagged with.
Brett Johnson [:Paint and all that kind of stuff.
Norm Murdock [:I mean, come on, you have got to be kidding me. That it just shows how race conscious and race obsessed these progressives and frankly Marxists that run these universities have become. And Steve, to your point, when you talk about unusual or unpredictable, although you and I would say it's very predictable, but the race games that have been played. In the last half. Warren, you know, writing in her application to become on the faculty that she is part Cherokee, right? So that she gets credit for some race that it turns out her 23 ANDME DNA analysis showed she's less Cherokee than Donald Trump. And then you've got Biden, for example, on a federal program, one of the first federal programs he did. And the court struck it down. Or I think a district court was this special Department of Agriculture grant that was just for black farmers. So it wasn't for Japanese American farmers or Puerto Rican American farmers or Cuban American farmers or Appalachian farmers. It was just for black farmers. And what is a black farmer reparations out in California? See, once you decide you're going to do things by race, then as Jordan Peterson says many times in his books well, how actually do you define that? I mean, is Obama white or is he black? He's 50 50.
Steve Palmer [:Which one is what's the movie? It was like a Dystopian movie where it was all like society was stratified based on somebody's DNA. And if you were a certain DNA, you were less. It's like it's getting to that sort of nonsensical outcome. It's like, how do you define race? Well, we're going to all have to take a test. And if you're X percent with this race, well, then you qualify for benefits that other people don't. These are insane outcomes that I think on their face, it's reduced to absurdity.
Norm Murdock [:It's what the Nazis did, people pushing it. It's what the Third Reich did. You had to go back I forget how many grandparents, how many generations back, but to become a member of the Nazi Party with all of its benefits, right, so that you could do business with the government, so you could travel, so you could own a firearm, so you could do this, that, or the other thing. To be a member of the Nazi Party, you had to demonstrate back to a certain generational time limit. I think it was a couple hundred years that there were no Jews, no Jews in your background, and there were race courts to determine who was pure enough to become a Nazi Party member.
Steve Palmer [:Now, the response, though, is going to be, we got to have guardrails. And I agree with that to some extent because you can't have a scenario where because if you create unfettered discretion out of the government, well, you're going to end up with people who abuse their discretion. And so what are the guardrails? And I suppose I think it's best to solve it case by case. So if you've got somebody who is discriminating against for admissions purposes, one group over another, one race over another, well, then I'm right there fighting it because I don't think that's right. On the other hand, if you create like the other side wants to do a system that permits that, then what's to stop it? Going too far that way. And I think maybe the only way to handle this is to fight racism where you see it. They would say it's not racist to discriminate against whites because under the critical race theory, the whites are historically in power, so they can't be discriminated against. So the only way they can justify this is by changing definitions as you go and it doesn't work. You end up with crazy outcomes like we talked about. So I guess with that, I'll shut up about it. Normally, we probably got to move on.
Brett Johnson [:Well, I've got a quick update. I don't know if you heard that they updated what happened up in our train derailment earlier this year. We're coming up on six months on that. That's February, too. But I missed this. And I was looking at it going, hey, maybe we can get an update at the six month mark, august 2, that sort of thing. But there was a hearing back in late June, June 22 and the 23rd offered new details about the investigation. A Norfolk Southern employee in a monitoring center in Atlanta did not initially see an alert showing that the wheel bearing was heating up. And according to a transcript released before the hearing, keith Dabric, the Villages fire chief, said he was blindsided, quote, unquote, when Norfolk Southern and its contractors, concerned about an explosion, sought to vent the vinyl chloride in daylight. He also was given 13 minutes to decide whether to approve the procedure.
Steve Palmer [:Wow.
Brett Johnson [:Amazing. We talked about it.
Steve Palmer [:Sunshine always exposes everything. Let's get to the bottom of it.
Norm Murdock [:Believable if I was Norfolk Southern, right? They have now spent, according to their testimony, $400 million. Well, they're not even close to being done, right?
Brett Johnson [:No.
Norm Murdock [:So if I were them, the cheaper way out. Frankly, this is like a Love Canal thing, right? In New York near the Niagara Falls where the soil was so contaminated they just abandoned the town. Norfolk Southern. Should have just bought East Palestine. Yeah, that's really what they should do, because for $400 million, they probably could have bought everybody, right? I mean, they probably could have bought all that real estate and just said, you know what? Now it's our know, whatever your house is appraised at, here's a check probably.
Brett Johnson [:So yeah. Other know, that's almost a snowball effect if you think about though, they could buy the town. But then they also said the wind blew into some Amish countries, into Pennsylvania. Into Pennsylvania. So, you know, Pennsylvania is going to stick their nose into that lawsuit.
Norm Murdock [:Yeah. In fact, the governor, we want our.
Brett Johnson [:Money to you buy this town. That kind of stuff.
Norm Murdock [:The governor doesn't stop. The governor of Pennsylvania passed me on the highway that weekend. I was traveling into Pennsylvania. And coming the other way was a motorcade that was clearly the governor, because the governor of PA, unlike Mike DeWine, the governor of PA that day, went to his constituents in western Pennsylvania and wanted to find out about the fallout. So it is a thing like you said, and like our guest, the expert that we had on here, like Jay said in one of our episodes, that the contamination airborne definitely carried it over into PA. Had to.
Brett Johnson [:Yeah, it had to. But anyway, I just saw that update. I'm going to try to research, see if we can get a reporter on.
Norm Murdock [:Yeah, that'd be great.
Brett Johnson [:Just a six month update, or maybe it's later into August, kind of go, okay, what's happened in six months?
Norm Murdock [:And just this week, there was a trestle bridge, a train bridge that collapsed, and another toxic spill from a train. So our infrastructure is shit. It's crumbling.
Brett Johnson [:Yeah.
Norm Murdock [:I think the statistic now is Pete Buttigieg. The one thing that Pete Buttigieg has said that's correct is something like 40% of American highway bridges and well, county, township, all bridges are structurally deficient. I mean, that's almost a coin flip when you cross a bridge now.
Brett Johnson [:Well and that's a safe hold on, guys.
Steve Palmer [:Didn't we pass an infrastructure bill?
Norm Murdock [:Yes.
Brett Johnson [:Yeah, we did, didn't we?
Norm Murdock [:An inflation reduction bill, too.
Brett Johnson [:Yeah, no, well, and that's a good point. We need to consider this. This is the basics that the government is supposed to do.
Steve Palmer [:Yeah, it is exactly what the government.
Brett Johnson [:That'S exactly not spending bullshit money on.
Norm Murdock [:This is interstate commerce.
Brett Johnson [:This is interstate commerce that we pay to have decent roads, to ship, to move, to go on vacation if we want, and emergency situations so we get bombed or an attack and we need to get our ass out of Columbus, Ohio.
Norm Murdock [:We expect the roads or a hurricane, tornado, lots of reasons.
Brett Johnson [:Could be any Mother Nature that we expect the roads to be in a decent shape that we can get out of here in an efficient time.
Norm Murdock [:You run away from Canadian smoke. Exactly right. You want to go south and get the hell out of Cleveland in Buffalo because you're choking to death. You want to be able to get on the highway.
Brett Johnson [:Well, it could be health reasons. Well, that's not really far fetched.
Norm Murdock [:That is a health well.
Brett Johnson [:No, sure.
Norm Murdock [:I heard that in New York City, I think it was yesterday. So our air pollution indexed here was 100 something. It was like they were saying, gosh, if you've got COPD or lung cancer, don't go out. Or a heart condition. New York City was four times worse. 400 was the is it 200 the cap or 200? 400 is like nobody can handle this amount of smoke. I mean, that's how bad it was.
Brett Johnson [:Well, if you see, there's a page, a home page out of Canada. I'll put the link in the show notes that's showing all the fires. It's like all of Canada is red.
Norm Murdock [:Yeah.
Brett Johnson [:And they're not doing a whole lot of amazing well. I wonder if you just can't I don't know what the situation is in regards to can you or not, but I wanted to look at it because they updated.
Norm Murdock [:They're pretty chill about it.
Brett Johnson [:Yeah, well, they are, but it's that how many fire up right now. There's 229 out of control fires up there.
Norm Murdock [:Incredible.
Brett Johnson [:At least that's what they're categorizing 174 under control, 94 being held. I mean, the map of Canada is just red.
Norm Murdock [:Yeah, terrible. It's horrible. Horrible.
Brett Johnson [:But anyway, I feel bad for them.
Norm Murdock [:Along the lines of what you said about our pay at the pump gas tax, which if you combined state and federal is now somewhere between 35 and gallon, something like that. There is a supposed lockbox called the trust fund. Now, this is where I'll strenuously disagree with Pete Buttigieg. The Highway Trust Fund. Just like the Social Security. Al Gore's favorite phrase lockbox. It's been rated historically by Congress and the president of both parties to spend on any number of socially approved feel good programs like converting railroads to bike trails or park and rides for people out in the boonies that want to take a shuttle bus and for all kinds of employment programs for transit buses running around empty. And so we have ignored maintenance on the highways. We've ignored the bridges because that's not as know. I mean, you're going to hire some construction company like or, or whoever in Columbus or Ohio in general to go out and pave or weld or rivet a bridge back together, whatever, pour concrete. Not as sexy as saying, hey, what we're going to do is we're going to have this nature trail for people to walk along the Sciota River or something like that. Like, oh, gosh, I'm a greenie. Look at me. Give me all the virtue and all that stuff. Instead of doing the nuts and bolts business of what government should be doing.
Brett Johnson [:Goes back to Steve's analogy of your tailgate money. Tailgate money. It's like, yeah, of course we're all going to put the money in, but we're going to get the expensive cheese, not the cut cheese.
Norm Murdock [: pened in I think the year was: Brett Johnson [:The right person has to get killed. Exactly.
Norm Murdock [:Yeah.
Steve Palmer [:Well and then they're never going to blame the government.
Norm Murdock [:No, they're never going to blame themselves.
Steve Palmer [:It's only because the car manufacturers weren't safe.
Norm Murdock [:Act of God. Act of it. Was it in Iowa where that entire interstate span just collapsed into the Mississippi River, I think, or whatever it I mean and it killed a few people. Right. They were on that bridge when it of one of the things going on. Also, guys that's coming out today is a Supreme Court decision. So they have three more, and I guess two are coming out today. The other one that's supposed to come out today, besides the student loan forgiveness program, whether or not that's constitutional is a decision on whether or not a website designer can stick to his religious beliefs and not design a website for a gay wedding. Right. So it's like the gay cake wedding cake thing.
Steve Palmer [:This is where they screwed up that cake case, because what they did is they left room for an endless array of debate like this is this artistic or is it not artistic? They tried to draw some lines to limit the scope of that cake decision, and now we're left with this sort of case by case, ad hoc assessment of whether something like this is constitutional or unconstitutional. I'll be very interested to see how they fix this.
Norm Murdock [:Hey, Steve, what the Supreme Court can do is look at their precedent from 24 hours earlier, because yesterday they ruled that a US postal Service worker could not be compelled to work on Sunday if his religious tenants commanded him to honor the Sabbath. So they essentially gave this fired postal worker his job back, I assume with back pay and benefits and all that, because the postal system let him go because he refused to work on Sundays.
Steve Palmer [:They did that under the free exercise clause, though, right, I presume?
Norm Murdock [:Yeah, I think you're right. So you wonder, okay, so we're going to uphold somebody's religious rights for that. They sure as hell one day later. Better uphold the different, though.
Steve Palmer [:Norm.
Norm Murdock [:Yeah, go ahead.
Steve Palmer [:The First Amendment free. So there's two clauses of freedom of religion. One is called the entanglement clause, where the government can't be too entangled in a religion. The other is the free exercise clause. And I think there was years and years and years of jurisprudence that sort of pushed this in a direction that I think was sort of maybe inconsistent a bit with what the framers thought. But what you're talking about is I'm guessing I haven't read the decision. But it's a free exercise decision where the government can't interfere with the free exercise of our religion. Now, the question is going to be whether my moral belief that I don't want to make a cake or I don't want to build a website for somebody who's gay or somebody who's black or somebody who is Italian or somebody who's a mix, who knows it's going to be hard to find a religious foundation, no pun intended for that. So it could turn on something different. Norm, I'd be interested to see because there is this notion that Christianity says we don't approve of homosexuality. But they're not the only ones who don't approve of homosexuality.
Norm Murdock [:Oh, of course.
Steve Palmer [:No, I mean, the Muslims don't approve of homosexuality, as far as I know. I'm no expert. What if I said in my law practice, I'm not going to represent gay folks? Can I be compelled to do it? That's a real dicey problem. I've always thought this, like, I used to argue upstairs, like, what if I just said I'm not going to represent anybody of color in my law practice anymore? Can I be compelled to do it? And people are like, Heck, yes, you can. I'm like, all right, well, then what kind of representation are they going to get out of me if my real tenet is I don't like black people? Am I really going to do work for them in a way that they would want just because the government says I have to? And obviously, I don't take these positions, folks.
Norm Murdock [:Well, Steve, Steve, do the lawyers at the NAACP represent white people? No, they don't. No, they don't. They represent exclusively black clients. Right.
Steve Palmer [:I got no problem with in the private industry. Go do what you're going to do.
Norm Murdock [:All right, well, then it sounds like somebody's a KKK guy because he doesn't want to represent somebody of a certain color. Well, that's exactly what the NAACP does. I mean, I'm not defending bias. I'm defending freedom. Do whatever the hell you want if you want to be an idiotic ice cream cone vendor and put up a sign that says something outrageous like biden this or no, right handed, whatever.
Steve Palmer [:So you put a sign that says, no black folks served. Yeah, I'm going to put that sign up. Well, I would hope in today's day and age, that guy goes broke.
Brett Johnson [:Absolutely. In a heartbeat.
Norm Murdock [:In a heartbeat.
Steve Palmer [:Ice cream from that miller.
Norm Murdock [:I'm not buying Miller or Bud Light. Right.
Steve Palmer [:You have a right not to.
Norm Murdock [:I have a right, and that's not because I hate trans people. That has nothing to do with I don't hate anybody. You know what? I don't want to be preached to by a I don't yeah, that's all.
Steve Palmer [:You just want to get a good product.
Norm Murdock [:I just want a beer.
Steve Palmer [:Here's the other distinction we got to make. Go ahead or bret.
Brett Johnson [:Well, I was just going to say to your point right there in regards to I don't want to be preached by two from a business.
Norm Murdock [:That's right.
Brett Johnson [:I would love to have been a fly on the wall in that initial meeting between this gay couple and this web designer. First of all, web designers are a dime a dozen.
Norm Murdock [:Sorry if you're a web designer, 100%.
Brett Johnson [:I'm sorry, if you're a web designer, everybody's a dime a dozen.
Norm Murdock [:Yeah, go find another one.
Brett Johnson [:So what happened in that meeting? Did that woman say, I am not going to create a website for you because you're gay? She could have picked any other flipping reason in the world. I think I she was making a point. I think say that I am not going to serve you because you're gay. She wanted this to happen.
Steve Palmer [:I think hold on a second. Bret.
Brett Johnson [:Don't you think opposite?
Steve Palmer [:The gay people knew damn well that she didn't want to build the website, so they went to this person to create the litigation.
Brett Johnson [:Is that what happened? Okay.
Norm Murdock [:And it has nothing to do what's going on.
Brett Johnson [:I didn't know which way it happened, but I think it had to happen one or the other.
Norm Murdock [:I saw her interview. It has nothing to do with her disdain or hate of anybody. She just doesn't believe that Matrimony and.
Brett Johnson [:That couple picked her picked her out for the sake of making an example of her.
Norm Murdock [:She didn't have any problem with gays living together, gay contracts, gay gay household arrangements.
Steve Palmer [:She just problem with these activists on these points. They're not happy just being free to go pick another web designer who will do it because there's plenty of gay web designers, the awesomest website, probably better than she believes, and tamp them down if they don't. Yes, they want to use the Supreme Court to do it. This is what pisses me off.
Brett Johnson [:And I don't agree with it either.
Norm Murdock [:I totally like they're doing with Catholic hospitals and saying, hey, you've got to provide abortion services, right? And Catholic hospitals are saying, that goes against our basic religious teachings. We're a Catholic hospital. We're not going to do abortions here except to save the life of the mother. Like a baby who's breached and the mother dies or the baby dies. You can't save them both, okay? They'll do that kind of an abortion, but they're not going to do an abortion on demand in the final week of a pregnancy or something.
Steve Palmer [:Norm, the other thing we got to understand is the difference between government versus non government action. Because, say with the postal worker, if it's the US postal Service, that's the government saying, we're not going to honor your free exercise of religion, but if you're a private citizen, it is different. So what we call this is state action. I can't violate your constitutional rights, Norm, because I'm a private citizen. The government can violate your constitutional rights. So you would say, well, how is this ever redressed if it's private? Well, the government has passed laws like Title VI that prohibit discrimination in some private businesses. That was a huge controversy at the time.
Norm Murdock [:Public accommodation because it gets to the.
Steve Palmer [:Heart of what we're talking about. Can I be forced in my private practice to exercise my art, so to speak, of being a lawyer, my art of building a website, my art of making cakes, my art of fixing cars? Can I be forced to serve certain groups that I disagree with? And when I say, can I be forced, what we're really talking about is the government coming at you by force with weapons to say, you do this or you go to jail. Right?
Norm Murdock [:Yeah.
Steve Palmer [:So, like violating the law.
Norm Murdock [:The famous during the civil rights era with Martin Luther King and Fred Abernathy and all those great men and women of all colors. The classic case at the Woolworths cafeteria counter where in that I forget what city it was, perhaps Birmingham. It was one of those classic cases where a group of blacks went in, sat down at Woolworths and refused to get up and leave. And of course they were arrested and beaten and whatever. And obviously what you're talking about, title Seven public accommodations followed right on and said, hey, listen, if you're open to the public as an accommodation, a hotel, a restaurant, you have to serve everybody at this. Well.
Steve Palmer [:And that came on the heels of I mean, there's some constitutional amendments, what is it, the 13th, 14th, 15th amendments? Sort of the antislavery amendments. So there's some constitutional basis for some of that as well that matters. But I like to think, I like to hope, like Bret, you and I have talked about this. If you created a podcast business and you're great at it, right? You get people to the table, you help them decide the topics, you figure out what's going to work the best for their business, you plug it in, sort of holistically into the marketing campaign, but then you just say, look, guess what? I don't like gay people. So no gays in my business, no blacks in my business. And if you're black and gay, well, watch out, you're not even allowed to call me. I would like to think that somebody who is less bigoted than you would say, well, hole, Bret's a fool because you've got all this business out there you're leaving on the table. I'm going to represent or I'm going to help only gays and blacks and I'm going to make a crap ton of money doing it. And hopefully you get tamped out of business for being a moron. It may not happen quickly and it may not happen neatly or even linearly, but I think the market can fix a lot of this stuff. Now back to affirmative action. We created affirmative action, I think on the notion that we need to get ahead of it because it's been so bad for so long, we need to get ahead of it. And like you, Norm, I was on board with that. But at some point, it tips over the top, and now the policies have been pushed in a direction that I think are harmful, untenable other groups.
Norm Murdock [:Yeah.
Steve Palmer [:Now we've got a problem.
Norm Murdock [:The thing is about freedom to choose Uncle Milty, his famous book is that without economic freedom, freedom to run your business, freedom to run your life economically, you have no liberty. If you don't have the ability to run your life financially, then you don't have freedom. And this lady was against the institution of matrimony between people of the same sex. It was her opinion, it was her religious belief, and that's why she wouldn't do it. Now, if the government can compel somebody to act against their own conscience, then where do we draw the line? And I'll give a great example. So you've probably heard of this outrageous group called NAMBLA. The national association of Man Boy Love Association or something like of America? NAMBLA, right. So what if NAMBLA went to this website designer and know, we believe that sex between minors and adults should be legal, and we want you to design a website that promotes pedophilia to become legal, to become matter of fact, they're lowering the age of rape in many states down to 14. So it's starting to happen, actually, in the legislative process. But at any rate, what if somebody came to you with that or somebody came to you advancing that? Maybe ISIS comes to you to a website designer and says, you know, we hate the United States and we hate Israel, we hate Jews, and we need you to design a website that puts out all this stuff. Well, can I deny a pro porn, pro pedophilia association? If my conscience says no, I find that repulsive. I'm not going to do your website for ISIS or for NAMBLA. So where do you draw the line? If this lady truly believes that it's an abomination for two people of the same sex, that's her business. It's in her head. Why are we going to make her do something that's against her own moral beliefs?
Brett Johnson [:Well, you can turn down clients whether.
Norm Murdock [:She'S right or wrong. Yeah.
Brett Johnson [:I mean, if someone were to approach me and want to create a podcast about hate speech, whatever, number one, that will be illegal. Really can't do it. Might be not a great example, but I have the right to say no because I can say no because I don't have enough bandwidth to take you on. I don't have to say anything about that. I'm not pro this, pro that.
Norm Murdock [:Right.
Brett Johnson [:So really, if you don't say what you're against, you can say no to anything. Right.
Steve Palmer [: n discrimination suits and in: Brett Johnson [:Sort of we're too busy, we can't take your business on.
Steve Palmer [:They're trying to dig a little deeply to black people.
Brett Johnson [:Okay, that becomes obvious. Yeah, you can have a track record then, I guess. I don't know, it just seems like there's an answer to that. But at the same time, I may be too simplistic in what I'm doing and looking at it.
Steve Palmer [:You're too we're I guess. Norm, I like what you did there. And Bret, I like what you're doing because, Norm, what you did is what I like to do. You turn it around and look at it the other way. I were forced to go represent KKK guys and I didn't want to. So I look, I've been called on some very controversial cases on both sides, right and left. Sure. I've had to decide, do I want to represent this person? Do I not want to represent this person? And I do this for different reasons. So it doesn't matter to me, typically speaking, but I should be able to say no if I don't agree because I'm not going to do the best I can for a person with whom I don't agree. It's like if I've got those internal biases that would impact how well I represent somebody, I ought to be able to act on it even if it's disagreeable to society as a whole. And like you said, Norm, you can't legislate morality this way and overcome somebody's moral beliefs by governmental force because you're going to end up with consequences that aren't good. There's an old quote like, I like my freedom straight up, right. I just take it the way it is, good and bad.
Norm Murdock [:Right.
Steve Palmer [:And if we start to tinker with that, we end up with absurd results and outcomes. And I do think that maybe on both sides, Bret, this individual who wouldn't build the website drew a line in the sand and said, I'm not going to do it. And I think the people targeted this individual to say, yes you are just to create the theater that looks like, see, this person doesn't like gays and we should be able to get our website. Not like they can't get their website anywhere else.
Brett Johnson [:Exactly. It comes off that way in a certain degree.
Norm Murdock [:You're the only one, bret, you just said something and you said it because you're a loving, nice person. Because I'd like to think I am Christian also, but you're a devout guy and you have a strong moral compass and you said you don't think that you could do. A website for hate speech legally. And I don't know if that's true or not, so I'm not passing.
Brett Johnson [:Well, create a podcast that has hate speech because you wouldn't be able to disseminate it. Well, but anyway, go ahead.
Norm Murdock [:Right, exactly. Just like you couldn't disseminate information about COVID or you couldn't disseminate information about all kinds of other taboo things which you should have been able to disseminate. And we know many people deplatformed that are now replatformed because it turns out they were right about COVID At any rate, my point would be we used to have an ACLU in this country that stood up for the right to people, for the right of people to have any opinion they want and to say it out loud. And back. 50 years ago, if we had an Internet, they would have said the KKK and the Nazi party and whoever else, if they want to put hate speech on the internet, they should be allowed to. The ACLU stood up for the Klan in their court case to march through the Jewish neighborhood of Skokie, Illinois. Right. And these are Jewish lawyers at the ACLU standing up for the right of Nazi sympathizers who killed 6 million of their own ethnic brothers and sisters over in Europe. Right. For their right to put on their little white stupid hats or their armbands and goose step through Skokie. Right. Why did they do that? They didn't do it because they liked know if somebody wants to spew hate, I'm with Steve. He often says this. It's a disinfectant. Let them spew their hate. Let them say whatever the hell they want. And then we'll know who they are. Right. And then we can counter them with our own intellectual arguments and we can address that. But if it's all shoved underground, pretty soon you have a skinhead movement and it pops up out of nowhere at some rally or something and there's a riot and you don't even know that it exists because you've suppressed it. And then the mold grows, so to speak, in the darkness, right?
Brett Johnson [:Well, those Jewish lawyers fought for the Nazis to be able to do their parade or whatever it was to speak, to speak because they knew that they wanted to have the same right for those Jewish people to walk in the midst of those Nazi people.
Norm Murdock [:There you go.
Brett Johnson [:Wherever they might have congress.
Norm Murdock [:Exact same.
Steve Palmer [:Right. I was a young lawyer working with an attorney in town. His name was Benson Wallman and he was a former ACLU lawyer. And I think he argued in the Supreme Court or worked on a case in the Supreme Court on behalf of the Nazis. And on his wall was the quill framed. So you go to Supreme Court as a lawyer and argue. You get a little quill and you get a document that says you did it. And hanging next to it was a poster of his visit to Auschwitz. And he was Jewish. And he said, I keep both those up there to remind me, one, to remind me of how bad it can be when the government is left unchecked, and another to remind me that we have to have freedoms in order to keep the government in check. He was so insightful about that.
Norm Murdock [:That's fantastic, really.
Steve Palmer [:It brought me to tears when he explained it. He did it much better than I could ever do. But it was really, as a young attorney, to see that and hear him explain that was really moving and we've lost that completely. Now it's the opposite. People would suppress all the speech and presume that their version of freedom, their version of right and their version of their moral virtue is the only one that should ever be and they should have the power to tamp out anything else in existence. And all I need do is remind everybody of what happened in the last century. It's not like those I say it all the time. It's not like those Ideologies killed like 200 million people, except they did. And we're on sort of this tipping point with these cases out of the Supreme Court where these concepts are coming to a head in these little microcosm debates about whether school admission is proper or whether cake making can. Be forced or web design can be forced. And whether like you said, Bret, is there hate speech that should not be allowed on a podcast. And man, it's really scary stuff because it never happens in open light. Your freedoms. You don't lose your freedoms all at once. It happens incrementally. And this is a wolf coming in sheep's clothing and if we're not careful, it will kill all the sheep. With that, guys, we probably had to wrap it up.
Brett Johnson [:I have to if you guys no, you got breakfast.
Norm Murdock [:Good show, good show. Good discussion. Thank you guys. Yeah, that was great.
Steve Palmer [:Yeah. So this has been common sense Ohio coming at you from Commonsense, Ohio show. I'm up at Mid, Ohio, and I'm about to go watch some races with my sons after I cook an awesome breakfast on a flat top. You guys can go to work if that's what you want to. Oh, actually I've got work to do up here too. So if you want to check out the show, please subscribe. Like you can find it anywhere you find it or anywhere you find your podcast, it is there. Or if you want to do it the easy way, go to Commonsenseoioshow.com. All the icons, clickable icons are all there. All you have to do is check them out. Click. It'll take you right to where you need to go. You can check out Norm's blog, Bret's blog. My blog is a real quick one to check out because there are none, but the other guys are doing yeoman's work to keep me honest. So we are coming at you right from the middle with common sense, Ohio. At least until now.
