 On today's show, we remember Chuck Berry and try to forget Trump's pick for the Supreme Court, Neil Gorsuch. You're listening to the David Feldman radio program, Use Sad Pathetic Hump. Welcome to the broadcast. I'm David Feldman, DavidFeldmanshow.com Author Chuck Closterman joins us. His new book, But What If We're Wrong, discusses the legacy of Chuck Berry. Mr. Corey Bretschneider teaches constitutional law at Brown University. He also has an article in Time Magazine this week condemning Neil Gorsuch's views on same-sex marriage. Stay with us. We have a great show. This is the David Feldman radio network. Senate confirmation hearings for Neil Gorsuch began on Monday. Donald Trump picked Gorsuch to fill the Supreme Court seat left vacant after Antonin Scalia died last year. One of the promises Donald Trump made is that same-sex marriage has settled law and that he and the country have moved on. Yet, according to our guests, Neil Gorsuch's confirmation could pose a serious threat to the sanctity of same-sex marriage. Professor Corey Bretschneider teaches political science at Brown University and is the author of When the State Speaks, What Should It Say, How Democracies Can Protect Expression and Promote Equality. He also teaches constitutional law at Brown University in Fordham. He holds a PhD in politics from Princeton University and a law degree from Stanford Law School. You write that if Judge Neil Gorsuch is confirmed by the Senate, he would pose a serious threat to same-sex marriage. And you are able to ascertain this information by reading a dissertation he wrote for his doctorate in philosophy back in 2004. He was attending Oxford University. Is that fair to dig through the writings of a nominee to try to figure out what's in their mind? I don't know how else we would do it during the Bork confirmation hearings, for instance. We looked in-depth at his writings. In fact, I think it's probably a better way to discern his judicial philosophy than just looking at cases that he decided as a lower court judge. There he's bound by the precedents of the Supreme Court. The difference is that Supreme Court justices have the ability to overturn their own precedents. So we need to know what he really thinks about the meeting of the Constitution and law and looking at his dissertation, which is a form of published writing, which then became a book, basically very similar, I take it. I think about the best way we have to figure out what he really thinks about the law. This is politics because the gold standard of turning down a Supreme Court justice is Bork. That seems to be right. Right. Modern Reagan had nominated Bork and Ted Kennedy and Joe Biden were on the Judiciary Committee at the time and they Borked him. Was it because of Bork's writing or was it because Bork was Nixon's henchman who fired the special prosecutor? Was it the Saturday Night Massacre? They fired the darling of the Harvard elite, Archibald Cox was the special prosecutor and Elliot Richardson wouldn't fire him and Bork did and wasn't he really just being punished because Kennedy? I don't think so. I mean, I think maybe that was part of the dynamic, but politics involves all sorts of conflicts over time. What was different about Bork, I think, was that the decision was made that his particular version of constitutional interpretation, the idea of his specific idea of the original meaning of the constitution, was so deeply at odds with current legalism was made to not confirm him. There's still a lot of controversy and bad feeling about that hearing, but I think that the general premise that you should ask for life, after all, what it is that they think the constitution means and how they'll go about interpreting it and that's the role, constitutionally prescribed role of the Senate is to evaluate the nominee and I think part of that is under judicial philosophy and that's what I'm trying to get started. He was getting his doctorate in philosophy. Was it judicial philosophy and this was legal philosophy? Legal philosophy. So he was getting, excuse me for one second, so it was specifically legal philosophy and this was back. Absolutely. Oh yes. Yeah. He's clear that he's not just evaluating some abstracts, not a historical dissertation, for instance, about Thomas Aquinas, he's trying to opine on the meaning of the modern doctrine of the law and of the constitutional law and the dissertation is in the book except for a crucial difference that we'll get to are really inquiries into the meaning of the constitutional protections in euthanasia. So this isn't abstract idea. Yeah. He's getting his dissertation at Oxford. So is it possible that he wasn't thinking that he would ever become a Supreme Court nominee? Is it possible that he was just trying to impress the Dons at Oxford and not the Dons? No. I don't think so. I mean he published the book, if that was the case, I mean no, I don't think so. I mean he not too much later published the book with Princeton University Press and basic argument is the same as the dissertation. And as I said, there's some small differences, but the, well important, but small differences, but the ideas don't change. And so if it was just some academic exercise, I don't see why you would publish it with a major, a major. Professor, when you're a lawyer, isn't everything an academic exercise? Aren't you able to take any side? You know, I think that's the difference between being an academic and writing an academic book and being a lawyer. I think the role of a lawyer is to defend your client as best as possible. And I am trained in exactly the same two areas as writers in that area. When we produce academic work is to tell the truth, not to advocate for some particular point of view. In a way, it's the fundamental duty of a scholar. To tell the truth of how you- Yeah. What you think about these issues, right? Okay. Gorsuch is leaving breadcrumbs for the Judiciary Committee in his writings. I hope they take them. I mean, they're more than breadcrumbs. It's they're in plain sight. What do you think? And they really need to ask them about it. I think it's Tuesday. Right. So my hero, my hero, Al Franken, sits by the Judiciary Committee. Sheldon Whiteham. You're counting on him. Yes. One of the most brilliant legal minds in the Senate because he doesn't have a law degree. Does Sheldon Whitehouse have a law degree? How many of these guys on the Judiciary Committee have law degree? I'm also counting on Sheldon Whitehouse, who I need to confirm this, but he was the State Attorney General in Rhode Island. So, yes, I'm almost sure that he has a law degree. I don't think you would have that position without it. Right, but you can be a judge and not have a law degree. Technically, you can. In fact, you could be a Supreme. There's no requirement in the Constitution that says that Supreme court justices have to have them, but it's beyond me who the last person without a law degree was. There's been talk every once in a while of nominating somebody with that one, but it has been a long, long time since anybody's been on that court without a law degree. Mommy, if you're listening, there's still hope. I can still do it, Mommy. Yeah. Mommy loved me. And there's nothing in the Constitution that dictates we can't have an even split on the Supreme Court. We could go 4-4 in perpetuity, right? Well, in fact, Ted Cruz brought that up several times when Merrick Garland was obviously not only not confirmed, but the Senate refused to hold hearings about his nomination. And one of the arguments that was made was, well, there's no constitutional requirement of nine, and that's true, and we could have eight. And I would like to bring that up again. The requirement that this nominee be confirmed, or that any unqualified or inappropriate nominee be confirmed, because there's no constitutional requirement of nine, Ted Cruz was right. And if that was the case in the last nominee's consideration, that should be on the table here, too. If it's an even split on a decision, then it just goes back to the appellate courts, right? It affirms the lower court opinion, whatever came before technically, but it doesn't set a new precedent. So it's sort of a 4-4 split is a kind of weak decision. It has legal force in the affirmation, but it doesn't create new law or a precedent. Are there possible rumblings in Washington, DC? This is just me hypothesizing that some people feel the supremacy of the Supreme Court, unelected judges, are a danger to democracy, and that a 4-4 split would weaken the judiciary and allow Congress to make decisions? Do you think there's... It's possible. I mean, that argument, yeah. The argument comes up a lot that, you know, how can the Supreme Court strike down laws that were passed by, you know, decisions that were millions of people were involved in. But I think anyway that our constitutional system requires the protection of individual rights, even when them have constitutional democracy. We need a strong judiciary, and I think... We do, yeah. And Trump has shown, Trump has shown the dangers of a weakened judiciary, a politicized judiciary. And many have said that before you can have a democracy, before you can have a republic, you need a respected military, and then a respected judiciary. And once those institutions are up and running, then the people can be consulted. And I think in many ways, we're seeing that with Trump, that, you know, Mattis, we got Mattis over at, I think he's defense. I think I got that right. And you've got, and he's a respect, you know, I trust Mattis, believe it or not. And, you know, the judiciary so far, despite all the lives that are being ruined, they seem to be standing a thwart Trump's history and saying, slow down. So we, it's good to have that. But when you have Obama, a progressive on my side in the White House, you kind of want less of an activist Supreme Court. What you're saying is the crucial thing of our time, which is that President Trump has shown that he has a complete disrespect for the rule of law and for the judiciary. It started during the campaign with the attacks on Judge Curiel, the attacks on the Ninth Circuit and of the District Court judge who stopped the travel ban. And it's essential for him to learn, and I hope he is learning through the process of that travel ban controversy, that we have an independent judiciary and that their decisions have the force of law. And if he threatens to not obey, for instance, a court decision, God forbid that that should actually come to pass, then that is really a threat to constitutional democracy. The whole system relies on the court being able to make final decisions about matters of law. Andrew Jackson, I think he was the seventh President of the United States. Donald Trump went to the Hermitage to lay a wreath at his grave instead of to piss on it, which I would do. Andrew Jackson said to John Marshall during the ruling on the Trail of Tears, now go enforce it. Where's your military to enforce it? Steve Bannon knows who Andrew Jackson is. Is this an unveiled or a veiled threat to the judiciary his visit to the Hermitage? The Andrew Jackson portrait in the Oval Office, is he saying to the Supreme Court, I have the military? Is this a reference to that? I mean, what you're saying is about the most frightening thing from the perspective of the stability of constitutional democracy. I unfortunately saw a very disturbing tweet by Mike Huckabee invoking similar logic about not obeying the recent Hawaii court decision about the travel ban. And I can't stress enough, the idea that the executive branch would refuse to obey really, there's nothing more fundamental. So I don't know that Trump you're thinking about them, but he cannot, I mean, without really abandoning his fundamental constitutional role. Final point, Nixon. I was just gonna ask you about that. Yeah, please interrupt. Well, I was gonna say that with the tapes, with the tapes in Nixon, the Supreme Court said you have to release the tapes and then it became a constitutional crisis of checks and balance and separation of judiciary from the executive branch. What's the potential about that episode, which there was a moment where there was discussion about would he or would he not turn over the tapes if he was ordered to do so. But what's essential for students of history and especially important now to remember is that the so-called anti-constitutional President Nixon absolutely turned over the tapes. And there was no discussion that he didn't have to because he had the military on his side or anything like that. And we have to remember that, that even his hesitation before the order or what many regarded as hesitation, the fact that we remember that hesitation, that's how serious this is. But in the end, he did turn over the tapes and as he was constitutionally required. And that's why that period of history compared to what's going on now had what at least clearly defined, understand what courts did and their ultimate authority to decide matters of law. Well, yeah, look at who Trump has surrounded himself. I mean, these are hucksters. Yeah, it's scary to me. I mean, the things that have been said by, you know, they don't help him either. I hope that he realizes that Stephen Miller said about the second travel ban. It's the same policy. We're just using basically, you know, technical differences. And, you know, that helped to tank in the courts because he can't trick courts by, you know, trying to play lawyerly tricks. Professor Corey Bretschneider teaches political science at Brown University and is the author of, when the state speaks, what should it say, how democracies can protect expression and promote equality. You're listening to the David Feldman radio program. You said pathetic hump. Chuck Berry died Saturday at his home outside St. Louis, Missouri at the age of 90. Doctors say the legendary rock icon died from natural causes. Berry's body of work includes Maybelline, Rollover Beethoven, Rock and Roll Music, Sweet Little 16, Johnny B. Good, Back in the USA. For more on this, we're joined by Chuck Klosterman. He's the author of, But What If We're Wrong, Published by Blue Writer Press. You write in your book that marching music is only remembered for John Philip Sousa. Well, more so that marching music and John Philip Sousa are now synonymous. I mean, that talking about John Philip Sousa is like talking about marching music. That person has almost become interchangeable with the idiom. And there was a time when marching music was very popular and there were a lot of composers of marching music. And certainly the average person wouldn't assume that the only meaningful composer is this one guy, but that's sort of how history tends to work with art. You know, it's like you start with a field of many possible candidates and the decades march forward and the candidates fall by the wayside. And then that individual is amplified and almost becomes more important than they may have been in practice. So one has to assume this will also happen to rock music. In jazz, for example, as time moves on. That will happen. Yeah. So eventually jazz will be synonymous with one person? It's, I think it's very likely that probably maybe by the time we are very old and maybe just a little period after. You mean tomorrow? It will be. It will be, you know, Louis Armstrong or Miles Davis or one of these individuals. You know, it's like that field is already so, this kind of being whittled away. Certainly if we talked, we had this conversation 40 years ago, the likelihood that UI and anyone listening to this program would probably have a much greater fluency for a high number of jazz artists. You know, if they weren't familiar with the music, they'd be able to say, oh yeah, John Coltrane and all the names or whatever. That's already happening now. You see that list of names getting smaller and smaller and smaller. And at some point it's just gonna be one individual and that person is gonna become, I mean, I can't guarantee this will happen. It's the future, but this seems to be how it works. I mean, I think it's very likely within our own lifetime that the relationship between Bob Marley and Reggae will be interchangeable. Bob Marley will be as famous as Reggae Music. For example, when we think of suspense, it's really Hitchcock. Well, Hitchcock is considered to be the most famous and maybe the most influential suspense film director. Now, does that mean he will likely be the only director of that genre from that period that, as you remember, a very specific work by some, at this point, lesser director emerges or whatever and then that person gets amplified. But yes, in all likelihood, that's kind of how it works that I would say already when talking about suspense films from that period, Hitchcock probably already plays an outsized role. He probably, for a lot of people, is the only connection they have to that period of film, at least in that genre of filmmaking. So that's kind of how it works, it seems. That's how it works historically. Now, the advent of the internet could change this. It could be impossible now that in the future, there are more candidates still existing because we don't need cannons as much and these things are less decided by institutions than they once were. But I tend to suspect that it will be more true than false. That in 500 years, if there's a class about the late 20th century and the instructor is talking about rock music as this really important art form. This past weekend, we lost Chuck Berry and I immediately thought of you. I immediately thought of you because I think you killed him. No, I immediately thought of you because you have a book out called But What If We're Wrong and you were excerpted in The New York Times almost a year ago saying that much like John Philip Sousa, there will be one person who will be synonymous with rock and roll and you suggest that one person would be Chuck Berry who we lost over the weekend. Yes. Thank you for being on my show, good night. We've been talking with Chuck Klosterman and his book is But What If We're Wrong? It's published by Blue Rider Press and thank you so much for joining us. So you're basically saying my, you're saying my Ding-a-ling and actually you do talk about my Ding-a-ling. Well, I do because my argument becomes basically what if rock music isn't necessarily a personality, it's a Beatles, it's just the qualities of rock, okay? The qualities of rock, simple blues-based music, comes from the South invented by a black person kind of adopted by white people, very sexual, very outlaw. All these things, these are the things that maybe future individuals will remember about what rock was supposed to be. It almost kind of like makes a little suit and that suit fits Chuck Berry perfectly. All of the cliches and caricatures about rock seem to be built on his career. Explain that, what do you mean? Built on his career. Well, okay, so, I mean, everything about him, the idea of the simplicity of his guitar-based music and sort of the way those songs are structured, okay? That is the kind of caricature of a three-minute rock song, with a guitar solo in the middle that he play on. He really was the, if not the first person to do this, like the main progenitor of that style. This is how the song is gonna be and this is how it's gonna come into play. So he didn't invent the style, but he perfected it? Yeah, I mean, he didn't write, you know, like Rocket 88 is usually considered to be the first rock song that people, you know, use when they're saying you have a history of rock music and that's not his material. But he certainly mainstreamed this style. He seemed to be the favorite performer of the Beatles and the Rolling Stones and Led Zeppelin and all these bands that we now view as, you know, almost, you know, doing the maximum version of this, the highest profile, most readily accessible stuff. So that sort of, you know, he entered this into the, you know, Art Lexicon or whatever. But also, you know, so much of rock has to do with the idea of sort of being you know, living outside of the law and having a certain degree of perversity about your sexual interest and not really playing by, here again, this is what we see with Chuck Berry. This is, it's like he did that to a degree that a lot of other artists seem to almost be trying to consciously or unconsciously copy. The fact that, you know, there was, always like an urban myth, do we, you know, we only have these songs? So what do we know about these people? Only kind of what we tell each other in anecdotes. There are thousands of those with Chuck Berry. He, almost like the idea of rock is him, you know. So rock and roll, we were told would never die. In a way, it died when the times caught up to rock and roll. It began being degenerate, sexual, double entendre outlaw-ish. The novelty of it died when, when the 60s and the 70s, when? Well, probably this, okay. What's significant about rock music is that it is, or the, not the only, but was certainly the first art form that was directly geared toward young people. But the whole idea, like the idea of any of this music or any of this imagery, there was no intention in the 50s or 60s that this would appeal to people who were parents. It was, you know, specifically going after teenage kids. And there was this big, a kid born in 1955, liked the same music that his father liked, whose father was born here in 1925 or whatever, was almost nil. So rock sort of represented the tension of that gap. Well, that doesn't really exist anymore. I mean, the likelihood of a parent and their kid liking you too or liking Beyonce is very high. Now there's a technology group gap. It's not really an age gap. But rock music probably started to lose its kind of its cultural force, probably in the 80s and 90s when it became less likely that only a young person could care about this. So rap replaced it because the baby boomers' ears couldn't tolerate what their kids were listening to. Well, I mean, certainly among white audiences, yes, rap music became the dangerous form of music for a 14-year-old boy to play that created a sense of alienation among his parents. I think the acceleration of culture is gonna make the window for that even smaller. I think that it won't even last as long as rock did. But, you know, you have to think of, you know, why, if something's important, it's important just because it sounds good or looks good or because it represents something else. And I think that rock music really did represent something else for a long time. I don't know if it does now. In fact, I would argue it doesn't. Before I let you go, and you've been very generous with your time, we've been talking with Chuck Closterman. He's the author of, but what if we're wrong? It's published by Blue Rider Press and we're talking about Chuck Berry. And before you go, I would like you to give me a primer on Chuck Berry. What is essential listening for people like me who want to gain a fuller appreciation of Chuck Berry? I kind of took him for granted until I read your piece a year ago, until I read your piece a year ago, and until a comedy writer named Ray James who is obsessed with the guitar, I remember his saying about seven years ago to me that it's all Chuck Berry. You helped me, I thank you for helping me gain an appreciation of Chuck Berry. Before we get to that, if rock and roll was moved along by a need in adolescence to push their parents away from their music, to have something of their own, and if rap replaces rock and roll as the thing young people can own for themselves that their parents can't enjoy, did that start with rock or has there always been something in the culture that the young people could own and their parents couldn't? Okay, well, this is complicated, but I'll try to be as fast as I can so it doesn't get boring, but... Your net, believe me, you're incapable of that. Well, that's very nice of you to say, but anyways, a big part of this has to do with the actual invention of the teenager, which didn't really happen until after World War II. I mean, there were always kids who were 50, What are you talking about? Because in the 1920s and 1930s and all the time before that, there basically was no middle period of life recognized by society. You were a kid and then you were an adult. When you started working and you got married, you became an adult. Even if that happened when you were 12, which it sometimes did, you moved from childhood to adulthood. But then after World War II, the way families were changed, there was the advent of the cars and kids had their own cars. You know, television came into play film, going to films in the afternoon came into play. There was suddenly this belief that there was an in-between stage in life, between being a kid and between being an adult. And it was that space that sort of rock music really began to occupy. You know, it's like trying to go back and find a story, say from the 19th century, about a teenager. You will find stories about people who were literally 14, but they're not doing the experiences that we associate with teen life. So that's some aspects of television and some aspects of film. Those were the first things teenagers could sort of access and use because teenagers weren't really around before. In terms of, you know, like a primer on Chuck Berry, well, you know, he predates albums. Like really the Beatles started the idea of that. These are, you know, this period. Probably the best collection, I think it's called the Great 28. That's what it's called, yes, the Great 28. Those are sort of like the collection, basically of the music he made that sort of defines what would come after it. So I would think, you know, if you want to go on Spotify and find that record, that would be the one to find. Chuck Klosterman is the author of, But What If We're Wrong? It's published by Blue Writer Press. You've been very generous with your time. Thank you so much, sir. You bet. Bye-bye. For more of my conversation with our guests, please go to DavidFeldmanShow.com. There's a contact button there. Please contact me to feel free to offer up any suggestions. You're listening to the David Feldman Radio Program.