Leighton Smith Podcast - Best Of: James Allan - January 8th 2025 - The Leighton Smith Podcast

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Speaker 1 (00:09):
You're listening to a podcast from news talks it B.
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It's time for all the attitude, all the opinion, all
the information, all the debate, now the Leyton Smith Podcast
powered by news talks it B.

Speaker 2 (00:28):
Welcome to the Mess of the Layton Smith Podcast for
the eighth of January twenty twenty five. Now in this podcast,
I would think that most people are aware of this
particular scenario across the Tasman but one that one that
affects us too. But New Zealand men and women are
being encouraged to pay attention to the court decision in

(00:50):
the case of Tickle and Giggle. So the question is
why are we interested in a comedic sounding Australian judge's decision. Well,
the ruling has been labeled dystopian and distorting key concepts
of sex and discrimination while dodging Australia's human rights obligations.
These are the women. If unchallenged, this decision would set

(01:12):
a dangerous precedent and you see it is in danger
of falling into the same human rights trap the incomparable
Professor James Allen analyzes the Tickle case as only he
can and you cannot help but enjoy it. In the meantime,
I trust that you were enjoying the holiday period. We

(01:32):
will be back with live content from the seventh of February.
In the meantime, the best stoves will continue.

Speaker 3 (01:51):
Layton Smith.

Speaker 2 (01:53):
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(02:36):
always read the label. Takes directed and if symptoms persist,
see your health professional. Farmer Broker Auckland Sporting. I was
sitting up in bed very early and in came the
Spectator page of the day, I'll call it, and the

(02:58):
leading article, as far as I was concerned, was one
that was headed New Zealand's Imperial Judiciary by Professor James
allenmer Jim Allen is well known to the audience that
regularly listens to this podcast or radio before that, but
for those who don't, who are not familiar with the man,

(03:19):
he is a prolific writer and commentator. He's a fighter
for freedom, he battles evil and he is the Garrick
Professor of Law at the University of Queensland. He's Canadian
by birth. He worked in New Zealand at a Tiger
University for a number of years before moving on to
the University of Queensland. And I I read this piece

(03:40):
in New Zealand's Imperial Judiciary and it responded to what
I was attempting to put together for myself, and I thought, no, no, no,
There's only one way to deal with this, and that's
to make the call.

Speaker 3 (03:52):
And I did.

Speaker 2 (03:53):
Jim, I appreciate it very much. Thank you for your
contribution in advance.

Speaker 3 (03:59):
Well, thank you late. And that's one of those introductions
that my dad would love to have heard. And my
Mum would have believed it, but it was exceedingly generous.

Speaker 2 (04:07):
When not generous, thank you very much, I'd say I
pulled up a bit short. Actually, let me just hit
on the opening of this. If you cast your eyes
across the Tasman right now, you can see the beginnings
of an imperial judiciary, the makings of which are being
cheered on at every step by many of those in
the loyally cast and in the law schools. What do

(04:28):
I mean by an imperial judiciary? I refer to a
country where the top judges, committees of unelected ex lawyers,
if we want to deal in specifics, are giving themselves
new found power at the expense of the elected branches
of government, under the cover of purportedly applying the law.
They are usurping power to themselves. Now that is just

(04:51):
the opening. You also wrote a book published ten years
ago into twenty fourteen, democracy and Decline steps in the
wrong direction, And I'm sure I must have been of
viewed you at the time. What changes have taken place
in the ten years since you wrote in part that book?
How much different is it today?

Speaker 3 (05:12):
Well, firstly, I did I have a more recent book
from a couple of years ago called the Age of Foolishness,
which sort of updates things a that it came out
with a US publisher, because you're always helping to sell
more than a couple hundred books, but that's almost impossible
to do these days. It's very hard. So that's called
the Age of foolishness that came out a couple years ago. Basically,
here is the underlying problem. Late people have this image

(05:36):
of lawyers and law students and law schools and the
judiciary that goes back to maybe fifty years ago. And
the data on this is overwhelming. If you go back
fifty or sixty years, the median member of the Loyally
fraternity was politically to the right of the median voter,
so conservative interpretively conservative. Today, the median member of the

(05:58):
Loyally cast is a couple orders of magnitude to the
left of the median voter. And by that I don't
mean the sort of old fashioned redistribution of wealth left
wing person. I have a bit of empathy for them.
I think they're wrong on the economy. I think they
don't understand comparative advantage. But I basically I get along
very well with old fashioned labor type voters who want

(06:19):
to redistribute wealth. But today's left wing parties that we
might call the human rights brigade, left wing parties right,
and that you know, the lawyerly cast. It's just overwhelmingly
in that camp. And you can see it here in Australia.
We just had a major constitutional referendum and you know,
it ended up being defeated at sixty one thirty nine.

(06:41):
I did predict that really early on. But every there
were thirty six odd law schools in Australia, over about
two thirds of them came out for yes. Not a
single one came out for no, so they purported to
be neutral. The other third, the big law firms came
out yes. The big corporations came out. The sort of
elite pillars of society on all sorts of sort of

(07:05):
touchy feely identity politics type issues are massively to the
left as the median voter, and you know, they think
they're more really superior people. And we saw it amongst
lawyers or some top QC's, we saw it amongst some
sitting judges came out and called people who were against
this referendum, you know, racis and that is what we
are producing in law schools. If you think that today's

(07:28):
law school is anything like the law school of the
nineteen eighties, you're just you're deluding yourself. In fact, I
personally would never give money to any university. I don't think.
I think you're making the world worse. And I work
in them, and so that, and so you have this
cast of and of course there's obviously exceptions on talking
to statistical terms. There's outlawyers. Of course, of course, yes,

(07:52):
let's admit all that. But the problem is going right
back to when I got to New Zealand in nineteen
ninety three. You bring in a statutory bill of rights,
and it when you buy a bill of rights, all
you are doing is buying the views of the judges,
or if you'd like, the views of the lawyerly cast,
and so on, all sorts of issues. You know, in

(08:14):
these recent cases we're going to come to talk about
the judges. They are saying that, well, you know, their
job is to keep pace with societal values. The judge,
the top judges in the Anglish, if they wouldn't have
a clue what society's values are, they live in little cocoons.
Leave aside the politics top judges are. You know, their
barristers make their living in front of the judges. They

(08:34):
will never say a critical word to a judge. Judges
have no one to tell them that they disagree with them,
except maybe their spouse at home at night. They you
know Youurraiah Heap would look brave compared to the way
most barristers and the law clerks treat top judges. So
a they have no self awareness, No one ever disagrees
with them. And politically they come from a group who've

(08:58):
been inculcated with values in the law schools and the
big law firms that are massively out of keeping with
the average persons. And so when they talk about you know,
social values in society values, they wouldn't you know, they're
not talking about yours and mind, they're talking about the
kind of values you would get if you walked in
to the biggest law firm in Auckland, and the biggest
law firm in Auckland would make you, you know, tell

(09:19):
them your pronouns as you walked in. They would have
the Maori flag flying somewhere. They are they are not?
And who gave these unelected judges this role? Like who
wants a bunch of If you were picking people to
determine social moral values, why would you pick lawyers. I mean,
they're the last group of people you would pick, you know,

(09:40):
So these people not only have this innate sort of
sense of moral self righteousness, they're asked they actually they're
never part of the cut and thrust of debate where
people are telling them what's wrong with I'm sure that
you get the odd descent. But even you know, even
on these recent cases, even the right of center political

(10:01):
parties in the anglosphere appoint judges who are left. Look
at the you know, look at the under sixteen voting case,
and the only dissenter was a labor appointee. So, in
other words, is worthless. Yes this was in New Zealand. Yeah,
that's in New Zealand, but it's true in Australia in
the Big Love case, and in fact Canada because a

(10:21):
it's very difficult to find an interpretively conservative judge these days.
Just go and look at the kinds of things that
are being taught in the law schools.

Speaker 2 (10:29):
Isn't the principle though, or wasn't it once the search
for truth?

Speaker 3 (10:36):
Well, yes, of course we're all in the search for truth,
and if it's a criminal trial, of course you you
trade off the search for truth to some extent with
the presumption of innocence and with the underlying idea that
it's better for you know, the first thing you learn
in the criminal law course I assume it's still true
in New Zealand, is that it's better for you ten
guilty people to go free, then one innocent person goes

(10:58):
to jail. So you have this You only convict if
there's a if you have any reasonable doubt at all,
you don't convict. So you're trading off truth. Because if
someone said to you, lay in fifty to fifty, what
do you think? I think he did it, But then
he said, have you got a reasonable doubt? And a
lot of the times you say, well, I do have
a reasonable doubt. And so because I'm not prepared to
put I'm not prepared to take the risk of an

(11:19):
innocent person going to do I'm going to acquit. And
a lot of lay people get it wrong. They think
when someone's acquitted, the jury or the judge is saying
he didn't do it. But they're not saying that, you know, overwhelmingly,
usually they're thinking he did do it, but I have
a reasonable doubt, and I live in a civilized society,
and that makes perfect sense. So, yes, the truth is
there sometimes and it's in the background, but we trade

(11:40):
it off against all sorts of other values. But what
we don't do normally until the last thirty years is
we don't say we are making a bunch of unelected
ex lawyers who happen to be top judges the sort
of moral arbiters of society. I don't want that, and
I've never wanted that, and I think it's a terrible
And these people get a bit puffed up, and they
become you know, I don't want to say pontifical, but

(12:04):
they are they and they sort of believe their own
pr and so they start making these decisions as if,
you know, they should be the ones who decide about,
you know, how to deal with climate change. Nobody, you know,
we live in a democracy. Nobody cares what a bunch
of exp lawyers. Their job is to apply the law.
In some instances, the law gives them a discretion to

(12:25):
use their own first order moral views. That's fine, But
when they're not explicitly given that, they shouldn't be taking
it for themselves. They shouldn't be making up, you know,
a right to give declarations of inconsistency. And so I
think there's there's problems everywhere, but New Zealand is supposed
to be a parliamentary sovereignty. What Parliament says goes, and

(12:47):
I like that system. But it's pretty clear that a
lot of the top judges in New Zealand today wish
that they had a written constitution that gave them a
sort of Canada like rule in setting forth public policy. Well,
you know, well I don't like that at all.

Speaker 2 (13:02):
Listen, they didn't lead a written constitution over the last
three years. They did what they did, what they wanted.
And I'm talking about I'm talking about the government itself
and sorry, and the judges who made a couple of decisions.

Speaker 3 (13:17):
I want to quite well, just while you're on that, lady,
you and I agree that the response to COVID was
thuggish and authoritarian, but it just goes back to my
earlier point. When you buy a bill of rights, you're
buying the views of the judges, and in COVID, the
judges were completely on board with the authoritarian response. You know,
they they had as much moral panic as anyone else.

(13:40):
So when I during the lockdown, when people came there,
I said, don't bother going to court because the judges
are fully on board with this and you're not going
to win any of these cases. What normally happens is
you wait five or six years or ten years, and
the panic subsides, and you know, the data starts making
it unbelievably clear they were wrong, and then the judges

(14:00):
will start deciding cases for you. And that's happening, that
is starting to happen. We're seeing the ond case coming
out of Canada. We had one or in Queensland. I
think you had one over in New Zealand, but it's
only after the panic has settled down. So I never
expected the judges were as bad as anyone and making
you wear masks to come into court. You know, the
Cochrane Review has made it clear that masks do nothing.

(14:23):
They were just a sign of obedience to government authorities.
I mean, and I when I was in New Zealand
was in the New Zealand skeptics. I was as involved
as anyone is trying to get people to take vaccines
and to believe science. But the problem was the science
did not support what the governments were doing. And you
can look at excess deaths in New Zealand now, cumulative

(14:44):
excess deaths. You know what these massive authoritarian lockdowns did
was they just delayed what, you know, what was going
to happen, and it was never going to affect young people,
so well, young people for old people, and I don't
like that. I mean, I'm in the old camp. But
you know, in what kind of society is it good

(15:04):
to sell out young people for people whose age is
over the life expectancy. I don't know grandparents who'd want
to do that to their grandchildren. So I hated that
whole thing. But I never expected the judges to be
the ones to fix it, and in a way, maybe
they shouldn't be the one to fix it. I mean,
in a parliamentary sovereignty, the parliament should fix it. And
if you don't like what they did, you vote them out.

(15:25):
I never liked what char Center during was doing, you know,
with her ridiculous claim that we're the sole source of truth.
If there's a more laughable claim in the history of
Western development, I don't know what it is, but the
government is never the sore source of truth. You know
at anything, they're open to being contested on everything.

Speaker 2 (15:44):
Indeed, well I should be. So let me sort of
turn us toward the main cause of this conversation. I
want to quite again from democracy and decline steps in
the wrong direction, or at least from the review of it.
Democracy and Decline charts how democracy is being diluted and

(16:08):
restricted in five of the world's oldest democracies, the US, Canada,
United Kingdom, Australia and New Zealand. James Allen target's four
main interconnected causes of decline judicial activism. We've talked about
that before, you and I, the transformation and growth of
international law, the development of supranational organizations in the presence

(16:31):
of undemocratic elites, and all of those things I think
have a part to play in the case that we
are here to discuss. In essence, and that was or
is Smith versus Fonterra. And I'm looking at a couple
of a couple of headlines, this from lawyers for climate

(16:54):
action Smith the Fonterra a significant win in the Supreme Court.
There is there are others. New Zealand Supreme Court opens
door to climate litigation against corporates. What does this mean
for Australia. That was from the law firm Clayton Hoods,
and there's more of the same now if we go

(17:16):
back to the year twenty twelve, I believe it was
twenty twelve. I'm doing this from memory. There was a
case that was filed by the New Zealand Science New
Zealand Climate Science Coalition and they took action against NIWA
over niwa's methods, and I think it was the High

(17:37):
Court where the Sole Justice turfed it out. He declined
to proceed with it. He allocated costs to against against
the coalition which they couldn't pay, and they went belly
up and that basically disintegrated I think now, and Newa
got away with it. But the reason, as far as

(18:00):
I'm aware, that he didn't take it on and wouldn't
proceed with it was because he didn't think that the
court room was the right place to be sorting out
matters of science. And I agreed with that, and I
thought that they did the wrong thing at the time
by taking it to court for exactly those reasons. Now
we have a case with Smith and vol Terra where

(18:21):
the New Zealand Supreme Court has done something rather dramatically opposite.
Now I'd like you to explain it.

Speaker 3 (18:32):
Well, okay, And actually I'm not even sure Smith is
the worst of the recent cases. I think that Voting
Rights Make It sixteen was pretty awful and so and
I think the Peter Ellis case was maybe just as bad.
But in Smith, effectively, and you have to remember, who
do you want making debatable social policy calls? And if

(18:54):
you think it's the judges, you have to ask who
where do they get the power to do this? And
if you're interested, they gave it to themselves. That's a problem.
But effectively, a Maori climate campaigner brought action against that
the seven biggest companies in New Zealand. There's six or seven,
I can't remember. And you know, he had a whole
bunch of causes of action public nuisance, negligence. I think

(19:15):
he was alleging a new tort something like, you know,
running the climate system.

Speaker 2 (19:22):
I can do it for you, a level climate system
damage to it.

Speaker 3 (19:25):
Yeah, okay, And so basically you have to be clear.
So get you get in a normal common law system,
what happens is you issue your statement of claim and
then there's a statement of sense and if the statement
of claim doesn't show any cause of action, then the
defendants can ask for the proceedings to be struck out,

(19:47):
so basically dismissed. And that happened that first instance here,
and it also happened at the Court of Appeal, and
it would have happened at any time in history until
pretty much now because there was no cause of action. Right.
So what defenders of the judges will say is, well,
they haven't decided the case. They've just sent it back
the first instance, but they have made it plain that

(20:07):
the judges have a well to play in this. Now
it may be that in this case, after there's a
bit of pushback, the judges will decide that in this
particular instance, mister Smith doesn't win. But the problem is
they've now created a precedent where they've said, we have
a role, we can decide, you know, we have a
say in whether how the government responds to climate systems.

(20:28):
No you don't, No, you do not, and my view
and you can't. They've just created this for themselves. Now
you know, it might turn out, because of the pushback
in Smith, that it'll go to first instance and they'll lose.
Mister Smith will lose, but they have. You know, these
things happen incrementally, and the Supreme Court has said we
have a role in this even if you lose. And

(20:49):
so it's it's it's sophistry for the judges to pretend
that this was a small, little uh change. It was.
It was they have injected themselves into a pretty big
public policy issue. And you remember in New Zealand has
a mission's trading scheme. So it's not like you know,
I mean, I personally think they were overreacting to climate change.

(21:11):
I'm with Bjorn Lomberg who says the money is better
spent adapting. And you know net zero, knowing no country
is going to meet net zero in the next thirty years,
it's not possible. If you think that they're going to,
I think you're just factually wrong the factual claim. We
can debate it, or you can go and read Steve
Coonan's book. He worked for the Obama he was an
Obama science advisor. You know, his book's called Unsettled. And again,

(21:36):
it's not going to happen. And as long as China
is building a new power plant every week, and so
is India, what New Zealand I should do is is
it's zero. We could both go back to the Stone
Age tomorrow and it wouldn't make any difference. So, you know,
the sensible thing to do in a cost benefit analysis,
I think is to try to adapt. But you know,

(21:56):
and there's great questions about how bad it can be anyway,
But one thing I don't think any of us should
want is for unelected lawyers who happen to have been
pointed to the court to inject them into this debate.
That's what you vote for, people, And the thing about
voting is if you lose and at the next election,
you know, you have recourse to try to work a
little bit harder on Saturdays to campaign for your side

(22:18):
of politics. When the judges inject themselves, you have no recourse.
And that is why you're seeing so much bitterness in
the US where you have very powerful judges. I never
liked the idea of living in a juristocracy or a critarchy,
or however you want to describe rule by unelected judges.
It's you know, they don't get access to all information,

(22:39):
They have no idea how ordinary people think. You know, again,
I'll say it again, the top judges are cocooned. They
only ever hear people agree with them, except for maybe
their spouse. Their milieu is the top law firm, one
which is completely out of whack with most people's views.
And why would you want those sort of people. I mean,
I'm perfectly happy for really smart people to interpret and

(23:00):
apply the law. But I don't care what they think
about climate change, and I don't care what they think
about what age you should vote, and I really don't
care hear what they think about whether some you know,
odd Mallori idea to be injected into the into the
common law system as they did in Elis. And keep
asking yourself, well, who gave these people the power to

(23:20):
do this? And I don't know what the answer is.

Speaker 2 (23:22):
It seems to You're correct, I've given it to themselves.
But it didn't start here, in my humble opinion, it
began in other parts of the world. But specifically, I'd
say the States. Now it could be wrong, but that's
where I That's where I'd narrow it down to.

Speaker 3 (23:41):
Well, Canada too. I mean, the Americans have had a
written constition with the Bill of Rights. You know, people
forget that until if you looked at the end of
the Second World War, there were two democracies with the
Bill of Rights in the entire world, France and the US,
and the French one was not just dishable, you know,
is more aspirational. You couldn't strike down laws with it.
And so if you had to describe the last fifty

(24:03):
years of constitutional change in the democratic world in about
you know, fifty five or six words, I think the
answer would be the triumph of American constitutionalism, where you
either entrench or enact a statement of moral entitlements in
the language of rights. You know, people should remember that

(24:25):
you can rephrase every right the right to free speech
as a rule in the following circumstances, you will be
able to speak to your mind. But rules have no
emotional traction. Rights have this ability to give you this
free sum of excitement down your spine and you feel
the sense of entitlement, and you know. So it's an
incredibly potent tool. But what people forget is the right

(24:47):
to free speech. There are no rights that are absolute.
And even in the US, you can't say anything. You
can't counsel murder, you can't incite murder, you can't publish
child pornography. And so all a bill of rights does
is it takes some broad amorphous entitlement and it hands
over all the line drawing, all the specific lines draw

(25:08):
going to judges, and I preferred those lines to be
drawn by the elected parliament. Now, the Americans, nothing much
happened with their Bill of Rights for the first one
hundred and fifty years. Even in the nineteen twenties, it
was mostly state legislatures that were having laws struck down,
not the laws of Congress. You know, all the great

(25:28):
Oliver Rende Holmes cases. It's not till the nineteen sixties
really where the American Supreme Court starts to you know,
go crazy. But at least they had a warrant for
it was part of their written constitution. And then Canada
gets it in nineteen eighty two. And remember that's the
one that Jeffrey Palmer loved. And when he originally moved
to a Bill of Rights for New Zealand, he was
copying Canada. You know, when you go back and look

(25:51):
at the early drafts, he thought there was going to
be an entrenched bill of rights. But you know, it's
an unwritten constitution. It's laughable. That's why you had to
move to the statutory model, because you couldn't copy Canada's
but Canada, the Canadian judges are even worse than the
American judges. And I think you're right when these judges
go off the international conferences and the Americans and Canadians

(26:13):
are talking about how they decided who can marry or
whether you can have euthanasia, or you know, all these
big ticket social items and and you're from a jurisdiction
doesn't have it, and you said, oh, I decided the
tax case or there was this really interesting trust case.
You know, these these top judges are smart people, and
they overvalue their own ability abilities on the planet because

(26:34):
almost all of us do. And they start thinking, well,
why can't Audien you know, do this back in you know,
back in New Zealand and right now today the only
democracy really without a national Bill of rights Australia. But
the Australian judges don't like the fact that they don't
get to decide these kind of cases. So you're seeing
trends here too. I mean, who who wants to decide

(26:55):
some dry tax law case when you can be deciding
you know, te Tonga or you know, climate change or
you know what age people should vote. That's like that's invigorating,
that's exciting, that's something that really smart lawyers ought to
be doing. I'm being facetious here. And so they can't resist,
a lot of them can't resist. And so you have
to be very careful when you make judicial appointments. And

(27:19):
the National Party wasn't careful. They appointed people who are
in some ways worse than the Labor Party appointees over
there in New Zealand. And we've done the same in Australia.
You know, it took fifty years for the Republicans in
the US to figure out a way in which you
might be able to appoint interpretively conservative judges. And you know,
it was basically Trump got pushed into it because people

(27:41):
didn't trust his judicial picks. He said, We're going to
publish a list and I will only appoint from that list.
And that's the way to do it, because then if
someone's name is on the list and you go look
at her, you'd be crazy to appoint her. There's a
real pushback on candidates one seven, nine, because we think
those aren't interpretively conservative people, you know, and so you'd

(28:03):
get feedback that way. And when it comes to the
appointment time, you're actually going to much more likely to
increase your odds of appointing. And when I say interpretively conservative,
I don't mean party politics. I mean they don't feel
that they are in the job of making the law.
They're in the job of so they're interpretively they're interpreting

(28:23):
the law based on, you know, what was the intended
meaning of the people who legitimately have the power to
make the law, the democratic branches, what you know. So
if I were the kind of judge I would like
they're trying to be honestly deciding what the lawmakers intended,
and if that was a labor government, then you interpret
it that way. But what you don't do is say, well,

(28:45):
you know, my job is to be the guardians keep pace.
What did Lord Crook want to say? Our job is
to keep pace with changing social values and we're here
to put our fingers on the pulse of societal values.
I'll say it again. The New Zealand Supreme Court wouldn't
have a clue what the societal values of New Zealand are.
They might have a pretty good grasp of what the

(29:08):
values of the top Auckland law firms were, or maybe
you know some of the big Green bureaucracies in Wellington.
That's it. They have no clue about anything else.

Speaker 2 (29:18):
You must be talking about the Reserve Bank.

Speaker 3 (29:22):
Well, the Reserve Bank too, I mean, because you can
see again we saw this in the Voice debate over here.
All the elite branches of government and the corporations and
the universities were almost one hundred percent in favor of
this constitutional amendment and it lost in every seat except
the Green seats and the Act. I mean, they were

(29:43):
so out of keeping with the average voter, and they're
not even embarrassed about it. They don't even go, okay,
I wonder why my views are so And what they
think of themselves is well, I've got a you know,
I've got a higher degree, and I'm a better person
than these are moral reprobates. I don't even know how.
I don't even like buying my coffee from these moral reprobates.

(30:04):
I'm being a little facetious, but you know that's the
view that somehow they're morally substandard because they disagree with you.
And it's a real problem. And that's why the good
thing about parliamentary sovereignty like New Zealand is if the
parliament doesn't like what the judges are doing, it can
pass a statute and put them back in their place.
And I look for Judith Collins and you know, the

(30:26):
two small parties in this coalition because they don't really
trust the National Party on this. But you know, they
can just pass a statute and say there is no
rule for the judges or this this, this supposed new
tourt does not exist. And you know they haven't responded
to the Court on the voting age, so that's good.

(30:47):
I don't think either side a part of Parliament in
New Zealand's going to take on the singly entrenched the
voting age. So in a way, that was just virtue
signal the Greenswood Yes, but I mean, you know I
I so I'd like to see some vigorous response by
the new governments because they must realize they have a

(31:07):
problem with imperial judiciary. It's not just me. There's some
top lawyers in New Zealand who are pointing this out.
You know, it's a diminishing band of interpretively conservative lawyers,
but there's some really excellent will.

Speaker 2 (31:19):
Well, let me come back to will return to the
global picture before we finish, but let me bring it
back to this current situation. What I'd like you to
explain is what the Supreme Court actually did. And we
know that for instance, because you've discussed it already. But
the claim comprised three causes of action, public nuisance and

(31:40):
negligence being the first two, and the court dumped those,
they rejected them, but they stayed with without ruling on it,
the novel climate system damage taught. And the reason we're talking,
of course, is because just recently a couple of weeks back,
they ruled in favor of Smith being able to proceed.

(32:02):
Where does it go from there?

Speaker 3 (32:04):
So what happens again? I'll say this, If you sue somebody,
you issue a stepment, a claim and say here's why
you owe me money, here's the facts, here's the law,
and then they issue a statement of defense and they
might say, well, you've got the facts wrong or you've
got you've got the law wrong. And normally in our system,
unlike the continental system in Europe, you have about four

(32:24):
or five years where you know, there's discovery and people
look into the facts and you have X party motions
and it's all designed to have your day in court.
That's the common law system, and so What happened sometimes
is you have the statement of claim, statement of defense
and one of the parties might say, well, the defendants
might say, well, even if everything you allege and the
statement of claim is true, you have no basis to

(32:47):
assue me. There's no cause of action, so strike out
the pleadings. And you know that happens, and often it's true.
So even if everything mister Smith said, there's no basis
for the judges to involve themselves in this he and
so the defendants won it first instance, and they wanted
the Court of appeal and it was only to all
the Supreme Court is said in a way, is well,

(33:09):
you can proceed mister Smith with this new tort claim
of yours. And again they're going to characterize this as well,
it's no big deal because you know he'll proceed with
his claim and he still might lose. He still might lose,
And so what are you worried about? And what you're
worried about is they have created they have injected themselves
into the system. I mean, you know, a new tortive

(33:32):
damage to the climate system is effectively saying, if the
judges don't like what the government's doing, then these these
interested parties can sue and get damages. Well, you know
where did that come from? So firstly, we need a
new statute that just says no immediate new statute. And
what normally happens is if the government makes it plain

(33:53):
that they're going to take on the judges the government.
You know, in the democracy, if you get a fight
between the elected branches and the judges, the elected branches win.
There was a judge in the UK said we're you know,
after the two Miller cases, where I think they I
think the judges in those two Miller cases surrounding Brexit
really bent the law about parroguing parliament and about the progative.

(34:17):
I think they were pretty activist decisions obviously to try
to help the remainer case. And you know, there was
a backlash and if Boris had wanted to take on
the judges, he would have won because at the end
of the day, in the democracy, most people are going
to favor the democratic branches of government. So I think
they've overreached and I'd like to see a vigorous response

(34:39):
from this new government.

Speaker 2 (34:41):
What would that response. What could now that this is
in the position that it is, could they intervene with
a statute.

Speaker 3 (34:48):
Sure, you can always intervene with the statute in the
just pass the statute to say there is no toort
of damage to the climate system, because the statute always
beats the common law.

Speaker 2 (35:01):
And if you were going to if you were going
to take if you're going to make good with a
statute that said there's no damage the climate system.

Speaker 3 (35:09):
You know, no, there's no tort where you can go
to the courts and claim damage to me and that
would be the end of that. Or or you know,
you could pass a statute to say that t Kangar
whatever that means, is not part of the common law
and just overrule what the judges did in Elis And
they've effectively completely ignored the judges. And to make it

(35:30):
sixteen case where the judges said, you know, we declare
people's timeless right to vote at the age of sixteen,
you know, one of the worst reasons decisions I have
ever read. And I've read a lot of decisions and
a lot of them bad in my view. But that's
case from two years ago, where you know, the judges
look at your Bill of rights, have an explicit section

(35:51):
in it's saying I think it's twelve saying you get
the right to vote in eighteen and over, and then
Section nineteen is an antidiscrimination clause, which they amend it
after afterwards. And when they amended it, they explicitly pointed
to the age discrimination. They didn't change the voting age,
and there's some other statute that says, you know, age
discrimination kicks in at sixteen. And the judges effectively said

(36:13):
the vague MorphOS general claim trumps this explicit claim. And
it's laughable really when you think about it. If they
if they wanted to change the voting age, they would
have changed the voting age. And they talk about these
timeless fundamental right to vote at sixteen, but where does
it come from. It comes from an act of Parliament.
You know, if the Parliament had decided that age discrimination

(36:37):
kicks in at seventeen, then your timeless fundamental right would
be seventeen. And if they decided it was eighteen, then
they then the plaintiffs would have lost the case. I mean,
and I'm just picking out a few of them. It
was just an awful decision and four to one all
the National Party appointed judges just they just get themselves

(36:58):
embroiled in this pontificating about what timeless rights are without
stepping back and saying, you know, is this really a
fundamental right? You know, picking the age which discrimination kicks
in is no less and no more arbitrary than picking
the age to vote. You know, eighteen's an arbitrary number.
Why should the judges pick the arbitrary number? And what's

(37:19):
wrong with eighteen? You know? So it's a terrible decision. Now,
the good thing is it's been completely ignored because in
New Zealand, the judges don't get the strikedown legislation. What
they do is they stand up on their pedestal and
they issue this declaration to the world that you know,
people's timeless rights have been infringed and they expect Parliament
to do something. But if Parliament just says, effectively, cuss off,

(37:40):
we're not doing anything, and then nothing happens. So the
voting age isn't changing in New Zealand, and that's a
good thing in my view.

Speaker 2 (37:45):
You were you were here when we established the Supreme Court.
Will you're not.

Speaker 3 (37:52):
Remind me it's about it's been about twenty years, hasn't.

Speaker 2 (37:54):
It twenty I was just you know, I'd say it's
about it's about this time twenty years ago, I think.

Speaker 3 (38:04):
I mean, oddly enough, they issued the Smith case right
around the twenty of anniversary. I was probably just just
about to leave. I left in June of twenty four
to spend half a year in Canada and then move
to so I think it just got founded as I
was leaving. I'm not a big fan of Supreme courts

(38:26):
because you have too many accouterments and trappings of you know,
judicial power. I'd like to keep things modest. I wouldn't
let the judges have too many law clerks that sort
of thing. They start to believe their own publicity if
you're not careful.

Speaker 2 (38:41):
Interesting now you talked about you talked about a list,
drawing up a list of prospects for the Supreme Court,
for instance, and publicizing that at an election time, oh
four or.

Speaker 3 (38:54):
Five months in front of an election, you say, if
we get elected there there, this is the list from
which we will pick our top judges.

Speaker 2 (39:03):
But see, people here wouldn't really know too much about
the about the judges that they were talking about. Probably
probably you know, some people in the US don't know either.

Speaker 3 (39:13):
But you know who does know his lawyers, and lawyers
can say, wow, don't put don't put him on the court.
You think he's interpretively conservative. I can tell you he's not,
because right now what they do is they have a
little sounding The Attorney General talks to maybe a few judges,
a few ex lawyers. You know, over here in Australia
we picked the Conservatives. The Liberal Party put the wife

(39:36):
of the retiring High Court of Australia judge on the bench.
So in other words, he retired and the wife replaced him.
Now that would never happen if you published the list.
It's an embarrassment. And she turned out to be she's
still on the High Court. She turned out to be
not even remotely interpretively conservative. So you're you know, you
have to wonder what goes on at these cabinet meetings,

(39:57):
especially I'm talking about the right side of policy. Doesn't
anyone say, you know, wouldn't it be nice to get
an interpretively conservative judge? Or you know, your fear if
they say, oh, you know, we've got three men and
two women and we need to balance the reproductive organ
reproductive organs sort of statistical balance. You know, you know

(40:17):
that they're sucked into this identity politics instead of saying,
who's the best interpretively conservative person we can find. They
start listening to these twenty year old advisors, and they
make and I'm talking about the right side of politics,
the conservative side of politics. Their history is making judicial

(40:37):
pixis in some ways worse than labor. I don't say
that lightly, but you get a bit more interpretive conservatives
in these days from labor that you're getting from the
right to So they just don't take it seriously. They
don't worry about it. And hence you get three out
of the six New Zealand top Court judges who are

(40:58):
if anything, more activist, more inclined to go down the
path of judicial use their patient than the labor appointees.
And how can that be? You way to ask yourself,
how is this possible? Well, that's a good question. But
maybe they'll start taking it a bit seriously this new government.

Speaker 2 (41:16):
Well let me quote you something from today. Coincidentally this morning.
One of the more underappreciated recent trends in American law
and politics, obscured by a few high high profile conservative
victories at the Supreme Court and thus noticed by a
few other than died in the world legal conservatives, is
that former President Donald Trump's three picks for the High

(41:39):
Court the Supreme Court are soft and undependable. The truth
is that none of the Trump era triumvirate of Gorsich, Cavanagh,
and the Coney Barrett can hold a candle to their
too reliably conservative senior colleagues Clarence Thomas and Samuel Alito.

Speaker 3 (42:00):
And the author.

Speaker 2 (42:03):
His purpose is to suggest that if Trump secures the
second presidential two and then conservatives must ensure that he
makes better Supreme Court selections, as his own picks now
play a role in determining whether such a term even materializes.

Speaker 3 (42:20):
So what I say to that is there's some truth
to it, but the Trump techs are better than any
conservative text anywhere else in the world. So we've got
to put some contact to this. The worst of the
Republican appointed judges right now is not a Trump the line.
It's the Chief Justice Roberts. He sold, you know, the
Obamacare he is. He seems to be the kind of

(42:45):
judge he just wants to brook compromise votes on everything.
Gorsic has been good on a lot of things. He's
really good on the Chevron doctrine. I think that's a
bit harsh on gorsic Amy, Conum Barrett and the guy
who was accused of sexual assault, but clearly from you know,
the age of fifteen when he was at high school.

(43:09):
You know, they're weak on some things. But if you
put them in Australia and New Zealand, they'd be accused
of being the most hard right judges of all time.
So again everything's relative, but it's true if you're holding
them up to Clarence Thomas or Alito, yes they haven't

(43:29):
been as they haven't been as rock solid. But again
it was easier to make picks twenty years ago because
the legal academy and the lawyers have moved considerably left.
So if you're trying to defend the appointments by conservative
political parties, you know, the applausible partial defense is to

(43:51):
say it's really hard to find interpretively conservative lawyers. And
that's true because they've spent their entire law school life
learning about social justice and being told that you know,
deep down, the democratic branches are flawed, and just get
a couple of really well educated lawyers in the room
and they're you know, who should let them make the decisions.

(44:12):
And sure, some people can stand up to that, but
the pool is shrinking. I mean, I always wonder what
do these right of center politicians think, Why aren't they
fixing the law schools in the universities.

Speaker 2 (44:23):
So why are they doing it here?

Speaker 3 (44:26):
I don't know, but you know it's a there are
a few of us still aren so over here in
New Zealand, as I said, there were thirty six law
schools is something like that. And in this Voice referendum,
so you can imagine how many law professors.

Speaker 2 (44:40):
That mean, sorry, sorry for your reputation.

Speaker 3 (44:43):
You mean in Australia, Well, what I mean is that
there were only as far as I can remember, four,
maybe five law professors in all of Australia who came
out against the Voice. And you know, myriad pro voice
law professors. And you know, we're dying out. Wait twenty
years and there'll be no law professors who'll be against

(45:04):
the next sort of touchy, thealy progressive of woke constitutional amendment.
We won't exist because we're not being reproduced. And you
would think that would worry write a center political parties.
You think they would say, maybe we should you know,
we can look into the future. We're not crazy, Maybe
we should try to fix the law school so that
they're not churning out you know, technically not very able,

(45:27):
but social justice warriors. You know, why do you want
to hire someone as an employer who has spent four years,
you know, having grievance politics weaponized inside them. I don't
really get it, you know. And it's worse here on US. Sure,
the Coalition did nothing to fix the use. They got
worse every year. You know, they like to hang out

(45:50):
with the vice chancellors who are the problem. They don't
try to fix it, at least in the US, they're
trying to fix these things. I don't know if you noticed,
but on Friday two days ago in Florida, Governor DeSantis
and his appointments to the Board of Regents of the
University of Florida walked in and they fired every single

(46:10):
employee at the University of Florida, which is the flagship
university of the state, who is employed to do diversity
equity inclusion. That was a five million dollars a year
cumul of salary. They were asked to leave that day
and Desanta said that money will go back to the
regular university and it will not be hiring any more people.
That's the first thing I would do with every university

(46:32):
I would hire. I would fire every single diversity equity
because diversity just means monolithic group thinking that kills sort
of diversity of outlook. So diversity is just what kind
of reproductive organs do you have? Or you know, how
long has your DNA been in the country, And so
they think in group terms, and they impose a rigid

(46:54):
progressive orthodoxy. Imagine saying that you know you don't want
some particular flag, you don't want the latest iteration of
the rainbow flag flying on the university registry building, like
the university would hound you out of work. There is
no openness to ideas they pretend there is. And I

(47:14):
get plenty of students because I'm sort of known to
be who come and say they self censor all the
time because if they don't sell censor, they'll get a
lower mark. I guarantee that's true in New Zealand. I
guarantee in every university that's true.

Speaker 2 (47:28):
It's true.

Speaker 3 (47:28):
Now you true.

Speaker 2 (47:30):
You mentioned Chief Justice Roberts, and a lot of people
have been for years now asking what's the matter with
him or why is he My information is for what
it's worth. My information is that he and his wife
have been seduced by society, by social by the social

(47:51):
scene in Washington, and they enjoy being fated. And he's
just been well, I'll get back to the words seduced.

Speaker 3 (48:00):
Well he was, you know, I don't forget he did.
He was picked by Bush and from he was a Washington,
DC guy, and you know who knows. You're all speculating.
But the most important characteristic I think, not just of
right of center conservative politicians these days, but of any
of the appointees you want to make is can they

(48:21):
handle being hated? And the only way to tell if
someone can handle being hated is to see if they've
already been hated and have they buckled. You know, it's
hard to be a conservative judge because you will be
hated by the law firms. The progressive judges get invited
to the law schools and they're feedead And if you
care about that, and you know, it makes it worse.

(48:42):
You know, there's a law called O'Sullivan's Law by John
O'Sullivan that says, and it's just an empirical generalization, but
it says, any organization that's not overtly conservative will overtime
become left and my law, I want to call it
Allen's law. And this was in the context of a
male judge, but I said, any male judge who's married

(49:04):
to a wife who reads The Guardian will overtime become progressive.
And I mean there are exceptions, but it's really hard.
One of the things I'd want to know is, you know,
has this person, man or woman, have they ever you know,
stood for something and been hated and not back down?
You know, you know, what are there? Are they able
to withstand criticism? Because you know, I got a lot

(49:27):
of it in the universe. I don't really care. And
some of the good judges like Thomas and Alito, you know,
they can handle it. Roberts can't handle it. Doesn't like it.
Of course, it seems to be okay. You would have
thought Kavanaugh, since I don't think another politician on the
planet would have stood by him when when other than
Trump would have stood by him when he was being
these high school allegations that you know, were on their

(49:50):
face implausible in the extreme, most politicians on the right
would have buckled and jettisoned him and picked someone else.
You'd have thought Kavanaugh. So sometimes you get the sort
of Stockholm syndrome, and he's trying to to appease his attackers.
I thought he'd come out and be really tough. I
think it's a bit of I'm Conan Barrett the woman.

(50:12):
I think she could be pretty good. Who can tell.
But again, you know, it's not easy to be an
outlawyer in social situations, and so I you know that
there's some plausibility to what you say about Roberts, but
you need people who don't care about that and they're
prepared to stand up values.

Speaker 2 (50:30):
Indeed, let's just stay with the situation in the States
for a moment longer. I watch your opinion. I'd like
your opinion on the on the charges that have been
filed against Trump and are currently going through the courts,
and one by one they seem to be either finished
or eroding in the process of being finished. I have

(50:52):
one specific question. You've got the Attorney General in New York,
Leticia James, working hand in glove with Justice Arthur and Gorn.
And you've seen that, judge, haven't you on television?

Speaker 3 (51:04):
Yeah? Yeah, you're talking. Yes, I mean, I think it's
just I don't think any of the charges would have
been brought against anyone other than Trump, but it's goran.

Speaker 2 (51:13):
I want to concentrate on how can this guy get
to become a Supreme Court state Supreme Court justice when
he is the idiot jerk that he patently is, and
he displays himself accordingly in court and for the cameras
and issues finds that are just off the planet, let

(51:34):
fall foul of some of the governing laws.

Speaker 3 (51:39):
So what listeners need to remember is at the level
of the states in the US, most US states elector judges.
I'm not talking about federal court. I'm talking about state courts.
So I don't know New York off the top of
my head, but my bet is that all the top
New York state judges are elected, and New York is
a big Democrat state, so he will be. He will

(52:02):
implicitly or explicitly have run on the Democrat ticket. Latisa
James ran for District Attorney on the promise to get Trump.
The Mara a Lago case where the banks came and
testified for Trump and said, we did our own due diligence,
and we always knew he was going to pay us back,
and he did pay us back. And and you know

(52:24):
this judge decided that he has to pay four hundred million,
even though there's there is no victim, and the banks
are testifying for Trump that they got every penny back.
And you have other big developers saying, if anything, Trump
was offering more security than anyone else. There's that Canadian
Kevin O'Leary who said, no entrepreneur that he knows of
will ever invest in New York again, because the Trump

(52:47):
was just following bog standard practice. So they have just
decided to go after and get him. Now that's at
the state level, so that will be appealed to the
New York appeals courts. I suspect that they will overturn that.
Even the New York Court of Appeal can realize that
it's really bad for the state of New York. If

(53:09):
you say that, you know, we can just manipulate the
laws to get somebody, which is patently what they did
in the New York case. I think. Then you look
at the Georgia case, which is falling apart because Sammy
Willis employed her lover and again there's evidence that she
was in contact with the Biden administration. It does look

(53:29):
like law fair. It's not clear if that case well
I think she's going to be removed from the case.
That's what's happening right now, So it'll have to start.

Speaker 2 (53:38):
She's committed perjury, she's.

Speaker 3 (53:41):
Committed perjury, her boyfriend's committed perjury, and so she'll be
removed from the as the prosecutor. I don't see that
case having a hope of being even really started again
before the election. You've got the document's case down in Florida.
I mean, one of the problems for Trump is that

(54:01):
they're bringing these cases and they get jury cases in
the US. They're bringing them in either Manhattan or Washington.
In Washington, d C. It's something like ninety three to
ninety five percent people vote Democrat, and they're just banking
on the fact that, you know, we can. It's a
bit like the Mark Stein trial where he was the

(54:24):
hockey stick climate change trial and they in the final summation,
the lawyer for the other guy, Michael Mann, I think
his name, is basically say, well, no matter what else
you think, give lots of exemplary damages so that people
like Stein can't be skeptical of climate change. And so
the jury comes back with one dollar damages. So that's

(54:46):
the risory Basically, they agree with Steine and a million
dollars in exemplary damages that could not happen.

Speaker 2 (54:51):
It's explain, just explain to us what the difference between
those two damages are.

Speaker 3 (54:58):
So not everywhere has exemplary damages, but it's a way
to punish people. So if you decide that on the
merits of the legal action, let's say someone fell and
hurt themselves. You know, the amount of money they're owed
for their fixing their leg and the amount of time
they missed and work is, you know, one hundred thousand dollars. Well,

(55:18):
in some US jurisdictions, you can then add exemplary damages
to punish the person who I don't know was running
the school playground for being, you know, just so they
never do it again. It's nothing to do with the
actual loss of the person who is hurt. It's got
to send this message to the world exemplary damages to
make sure you're more careful in future, and they might,

(55:41):
you know, add some I don't really like exemplary damages.
I wouldn't have them, and not all jurisdictions have them.
But in DC man got a dollar. That's what the
jury decided that you know, the defamation was worth to
him a dollar. Basically, they're saying you weren't the famed
at all, but then they gave them a million dollars.
And there's some case law in the US that says

(56:03):
your exemplary damages can't be more than ten to one
what you get for your civil damages. But the problem
is that Stein has been bankrupted by the process. You know,
they dragged it out for about twelve years before it
ever got to trial, and Man's being completely funded by
billionaire climate activists, and you know, the process is the punishment,

(56:24):
and it's patently not a defamation by Stein, and they
have broken him by this process. And you know, eventually
it'll get to appeal court where Stein has to represent himself.
He can't afford a lawyer, and you know they might
eventually say it'll be you know, ten dollars exemplary damages.
The Supreme Court's not going to take it because they

(56:44):
you know, you can't have every single instance of lawfare. Basically,
if you have a legal fraternity that leans nine to
one for the Democrats, your odds of the lawyers favoring
one side of politics over the other are pretty high.
And that's pretty much what you have in the US.
I mean, they've all sorts of studies. You know, the

(57:06):
lawyers vote Democrat massively more than the split amongst the
wider society. Why do you think because they go to
law schools where they're indoctrinated. I mean, you can't, you
can only spend Not everyone falls victim to indoctrination, but
lots of people do. You're told about social justice and
you know, weaponized on all the sort of woke shibblists

(57:30):
of the day, pronouns whatever, and a lot of people
come out and then the law firms cater to that,
and you know, so you now have to pick your
judges from that pool of people as hard.

Speaker 2 (57:41):
Just scanning my bookshelves looking for a book that's that's
entitled something like Schools for Disinformation or something along certainly disinformation. Anyway,
it's about law schools and where they're at and I
haven't read it, but it's their waiting.

Speaker 3 (57:57):
Well, let's just say I'm not getting invited over to
New Zealand law schools to give any talks. Even though
I had eleven of the best years of my life
at Otaga. It was a great law school. You know
exactly what you wanted out of a law, schical differences
of opinion. Everyone got along, but I'm not sure it's
in that same state today.

Speaker 2 (58:13):
On Can I just say to you that there is
a there is a mood about and I'm aware of
it that if you're a parent wanting to send your
child somewhere to university, you could be forgiven for not
sending them. Zoo Tigo and my boy went through there,
but it's changed dramatically since then.

Speaker 3 (58:33):
It was just a great place to send your kids
when I was there, right up to two thousand and four,
and then the forces of political correctness seem to have
kicked in and overdrive, and you know, and appointments are tough.
You know, once sizable chunk of the faculty has one
set of us and they said about hiring people with
the same set of views. Not surprisingly, that's the kind

(58:56):
of person they normally hire.

Speaker 2 (58:59):
Have you had any association with the new University of Austin.

Speaker 3 (59:05):
No. I've been on a panel once with Narl Ferguson.
He's the historian with his wife i in Hersili, who's
set up or He was one of the joint founders
of the University of Austin. But let's hope that goes well.
But then you have to put that in contact. That'll
be one university out of three hundred American universities. But

(59:26):
it's a start. This is the model that you have
in Hungary, where ORBN just decided we can't fix the
existing universities, We'll just set up a parallel and let
the parents peck which ones they want to go to.
And that's been very successful in Hungary because it's really
hard to It's really hard to once you've got an
incredible percentage of the institutional people with one set of views,

(59:50):
and some of them are committed to institutional variety, but
many of them aren't. You know, you get it. There's
just been a collapse a viewpoint diversity. Jonathan Haate talks
about it in the US. There's plenty of data. You know,
he used to be a four to one democrat. Now
it's like eleven to one, twelve to one. How many

(01:00:12):
people would vote for ACT at any university department, maybe
a couple of finance people. How many would vote for
New Zealand first, even national? I mean, you know, I'd
be surprised if university faculty don't go eight four to
one for the left side of politics. Maybe higher. I mean,

(01:00:34):
I've seen it with the Voice here, where there are
only four of us at any law school in Australia
came out openly for no I know there were a
few others who are afraid to say it. And if
you're a junior and you're looking for promotion, everyone can
understand that once you have a family and a mortgage,
you can't afford to lose your job. It's hard to
be brave. Everyone understands that, and you can't really criticize that.

(01:00:57):
But there are people who have reached the top and
they can afford to be brave, and they're not. And
you know, those are the people that we have to
sort of say, wait, what's wrong with you? You're in
a position you're not going to lose your job and
you should be. It's hard to know which is worse,
cowardice or you know, the substantive opinions. We know right

(01:01:19):
bravery is important in right now and we're not saying
enough of it.

Speaker 2 (01:01:23):
Exactly back the where we started, and that is with
a Democracy and decline. Is the book still available?

Speaker 3 (01:01:34):
It is? But as I said, I've got a new
one out called The Age of Foolishness, uh SeeMe general
theme updated a bid and sort of fear my funnier
pieces are in it. So yes, it's you know, I'm
having no effect on the world at all.

Speaker 2 (01:01:48):
But were you go, Well, I can tell you there'll
be there'll be a few people who will be wanting
to buy one or the other. And so you're saying
that you can.

Speaker 3 (01:01:56):
Just get get them oney Amazon. Age of Foolishness, Yeah,
from a couple of years ago, a good, good American publisher,
because probably no one else would take it. So you know,
there's still a little bit of robustness over in the US,
and even in the UK, even though they're appalling inroads
on free speech and stuff, you still get powerful sort

(01:02:18):
of organizations like Toby Young's Free Speech Union. And by
the way, Toby Young is coming out to Australia, New
Zealand and June, I think, and he's spending quite a
bit of time in New Zealand, so he is he
has been a force for freedom that you know, I
can just only applaud him. He's also the man who

(01:02:41):
ran lockdown Skeptics from day one of the lockdowns, which
has now become daily skeptic. I think it gets two
or three million views a week. But so he he's
a real entrepreneur for freedom and he's coming out to
New Zealand. I can't remember who's bringing him out, but
you know they'll.

Speaker 2 (01:02:58):
Be I think it'll be the free speech crowd.

Speaker 3 (01:03:00):
I'd say free speech and I think maybe the tax
Paara lines. But anyway, hey, he's done great work and
they're actually helping people who speak out in Britain and
if they get fired, they have a tremendous track rate
of getting their jobs back for them. And so they
have the lawyers and they also, you know, to some extent,
occasionally they use the methods of the people who So

(01:03:23):
someone that's trolled through the last forty years of your
social media to find some joke you made to a
friend on social media from fifteen years ago, then the
Free Speech Union will troll through the social media of
all your accusers and publish ones that they find. And
that has a very salutary effect because you know, if
you really want to live in a world where thirteen

(01:03:45):
years ago, at a party, you can't tell a joke.
I mean, we've all told jokes, but you know, and
there's a time for a one in the morning bar joke,
and there's a time. And these people have no sense
of context. They're just latter day Puritans, you know. The
Puritans had no sense of occasion or humor or anything.
And they want to bring the same standards to bear

(01:04:07):
that you use, you know, when you're addressing the judiciary
as you'd use it at one in the morning with
your high school friends in a bar. And they're not
the same. And we don't all need to be Puritans.
And it's not a very fun world to live in
where everyone's a Puritan. And so what do you think?

Speaker 2 (01:04:25):
What do you say then, too, people who respond to
Trump in a manner of that, well, he's done. He
does some good stuff. He's uh, he's got some good policies.
But I just don't like I don't like his character.

Speaker 3 (01:04:43):
Yeah, well, I mean the first thing I'd say is,
that's a bit of an odd test. What eight million
people have poured through illegally through the border with fentanyl.
You don't like, you know, he's a bit distastefully, So
don't have him to dinner. He is borers, he is crass.
I don't have him to dinner. The other thing is,
come on, I mean, you know, Trump's character looks pretty
good compared to Lyndon Johnson. Lindon Johnson was a Lyndon
Johnson brought in the civil rights aack, but he was

(01:05:04):
a horribly human being and no ja if kay had
hookers in the White House all the time. You know,
it's a little easier on the left side of politics
because the press doesn't, you know, look at how they're
protecting Biden. The guy can't even walk. If that were
Trump every day, they would be running What's wrong with Trump?
So partly it's the media thing. Partly, you know, he

(01:05:26):
is a bit borish in crass, but the only kind
of you know, my view is you buy people wholesale,
not retail. They can't change their personality. And the kind
of person who can withstand the most virulent attacks like
the Russia collusion scam, like the incredible lawfare, like trying

(01:05:46):
to bankrupt you, bringing the organs of the state, the
fifty one intelligence officers who signed a bogus letter knowing
those false what kind of people can withstand that? Well,
I'll tell you who the most incredibly borish craft kind
of real estate developer. You can't just turn that off.
You know, his virtues are his vices.

Speaker 2 (01:06:06):
Ah, speaking of virtues, are you familiar with Tom Klgenstein. No,
Tom Klingenstein. Do a search and when you find it,
and it's very easy to find, go to Trump's virtues.

Speaker 3 (01:06:23):
You'll have to.

Speaker 2 (01:06:24):
It's about two years old now, but you give your
spool down and you'll find Trump's virtues. You must watch it,
especially when you're feeling lonely.

Speaker 3 (01:06:33):
Okay, well, I will do that because in substance, I
think Trump ran the best administration of you know this
this century so far. On the economy. When he couldn't
fix the border, it was because of people like Paul
Ryan and the Republican Party in Congress he wouldn't fund him.
When he couldn't deal with the affordable character was because
John McCain cast of citing the siding vote for uh,

(01:06:57):
you know, for the status quo, so against the Republicans.
And so you know, he was the president. He couldn't
do everything. Did he make mistakes? I think Trump made
terrible mistakes around COVID. I I think the Santas was
much better. But there's the old joke about the mayor
of New York who runs into somebody and says, you know,
if you agree with my nine out of twelve of

(01:07:20):
my policies, you really need to vote for me. And
the voter says, well, what if I agree with all
twelve of your policies and the guy says, you need
to see a psychiatrist. There's nobody you agree with. And
you know, when you look at the Trump administration, if
you are so overwhelmed and a lot of it's a
media characterization, but not all of it. But if you're

(01:07:40):
so overwhelmed by his personality, then you can't complain. When
you have open borders and you have law fare and
the weaponization of the judiciary, and you know, massive inflation.
You know, you get what you vote for. And I
I think that as things stand now, because Trump's leading
in all of the recent polls and the you know,

(01:08:02):
he never you had to remember that it's not a
French presidential system where everyone gets to vote. California is
going to go Democrat no matter what. So Trumps lost
the last election by a couple million votes, but if
you take out California, then Trump won the election, and
so you're always going to lose California in a elector

(01:08:22):
college system, So if the polls are about even, then
Trump should win. And he always trailed Biden or the
Democrat in twenty sixteen, twenty twenty, so being ahead is
a panic time for the Democrats. If he's ahead, that
means he's ahead nationally, and you usually just throw California
out and give those electoral college votes to you know,
whoever runs for the Democrats. So the mid you know,

(01:08:45):
the big, the big deciding states, the swing states are
going to be Wisconsin, Trump's ahead, Pennsylvania trumps ahead, Arizona
trumps ahead, Georgia Trump's ahead, Nevada trumps ahead. That I say,
Wisconsin and Michigan and Trump, if he takes Georgia, which
he's going to, he's but nine or ten points ahead,

(01:09:06):
and he takes North Carolina also, so he's going to
he's going to win those two. Then he needs to
win I think two of Arizona, Pennsylvania, Wisconsin, and Michigan.
There's one more. Uh, he only needs to win two
of those. And if Georgia he's going to win, I
gave it. He's so far ahead in Georgia right now,

(01:09:26):
I don't think he's gonna lose Georgia even with all
the you know, the ballot dumps and stuff. So we're
getting to the stage where the Democrats are thinking about
dumping Biden. But their real problem is it's hard to
dump Biden and not get Kamala Harris and she does worse.
You know, if your whole political approach to the world
is that you see everyone in group identity terms, and

(01:09:47):
she's a woman and she's black, you can't replace her
with Gavin Newsom. I mean, I mean a normal party
could because they'd say Gavin Newsom's better. But if you
see the whole world in terms of you know, the
kind of reproductive organs you bring to the table and
skin pigmentation, they just will not tolerate a white man
replacing Kamala Harris. So then what do they do. Well,

(01:10:10):
they could try for Michelle Obama, I guess. So they're
sort of you know, they're in a hard spot. If
the polls keep getting worse, I think they're going to
ditch Biden. The problem is we're getting to the stage
in time where the party can't ditch him. They'd have
to get him to step down. And so then the
question is, are these advisors of his who are clearly

(01:10:31):
running everything. Are they prepared to put themselves out of
a job by telling him to step down? I don't know.
I don't know. It's interesting who knows what's going to happen.

Speaker 2 (01:10:40):
I asked somebody recently who who is running? Who's running
the White House? And the answer was, what must be
the Martians?

Speaker 3 (01:10:51):
Well, yes, I don't know. I mean, you just watched
the clips on TV. No one can tell me that
this man who's you know, got all of his marbles.
He clearly doesn't. I tell you what.

Speaker 2 (01:11:03):
I've just about warn you out for the day. I think,
so it's probably to wrap.

Speaker 3 (01:11:10):
All right, Well, I enjoy us, I keep forgetting late.
And now where are you? Are you done in Queenstown?
Are you in Wellington? Where are you? I'm in Auckland, Auckland.
There we go? All right, Well, how would you say
the new government has got off and at starts? How
would you read them?

Speaker 2 (01:11:27):
I'm waiting a little bit. I can only say one
thing in particular. I'm very grateful to the two minor parties,
and I'm terribly grateful to have Winston Peters back. And
I only decided that relatively recently. Well relatively shortly before

(01:11:49):
the before the election. But I suddenly got the feeling
that if there was a Trump type character in this country,
it would have to be him. And he's got the
he's got the knickknacks to do things that he's not frightened.

Speaker 3 (01:12:05):
Yep, that's good. Well, that's that's good to hear. And
I think who's the Attorney general or justice ministers that
Judith Collins. I think she's brave too.

Speaker 2 (01:12:14):
By the way, you mentioned Steve Coonan before Steve Coonan
was in I've had a chance to check it out.
Steve Conan was in podcast number one hundred and ten.
You are podcast number two hundred and twenty nine. I
wouldn't have thought it was that long ago that I
spoke to Steve Coonan, but there it is.

Speaker 3 (01:12:34):
Well, his book was great. I really enjoyed his.

Speaker 2 (01:12:36):
Book indeed, and yours are worthy of pursuance as well.

Speaker 3 (01:12:42):
So well, that's recind leet and have a good day
over there.

Speaker 2 (01:12:45):
We will talk again.

Speaker 3 (01:12:47):
Thank you very much, Thank you so much, Jim Podo,
Bye bye.

Speaker 2 (01:12:50):
Plain Now twenty four hours after we said goodbye to
Professor James Allen, he returns after the Supreme Court of
the United States ruled very importantly that everybody was waiting
for a decision on whether the State of Colorado or

(01:13:13):
the Colorado Supreme Court could remove Donald Trump from the
Colorado list of candidate. It was only after we finished
yesterday that I saw the news that the court announced
that it was going to make a statement, And then
of course everybody was speculating on how it would turn out,
what they would be saying. Did it come Jim as

(01:13:35):
any surprise to you.

Speaker 3 (01:13:36):
Well, firstly, Leaden, thanks, thanks for getting back to me.
I mean, it has been a whole day, so I've
missed you. So we're back together. No, it didn't really
because I had actually predicted and I, oh, look, if
you stop and think about it and put aside the
incredible left wing media for a second. In the federal system,

(01:13:58):
and it was nine to zero on the federalism point,
who can take a candidate off the ballot? If you
can let the states to it, then you're going to
end up with a whole bunch of reciprocal actions where
each each of the fifty states is knocking candidates off.
You know, even in a strong federal system like the US,
this has to be a matter for the Congress, for

(01:14:19):
the central part of the government. And so even some
pretty liberal appointed Democrat judges, they broke nine to zero
on the federalism point. If a candidate's going to be removed.
And think about that for a minute. We've had a year,
a year and a half of largely left wing media
telling you that Trump was going to lose this And
I just was reading yesterday Winston Peters saying, you know,

(01:14:42):
the press, he was commenting on a bankruptcy over there
in New Zealand. But the press has only themselves to
blame because they've become you know, they took all this
money from the New Zealand government and they have become
left wing activists, and people don't want to read that anymore.
They have stopped all skepticism. So when the Democrats and
some pretty left wing lawyers are saying Trump's going to lose,

(01:15:03):
nobody stopped and said, how would that work in practice?
I mean, Trump hasn't been convicted of any thing. So
if a state just decides they don't like you, or
they decide that, in their view, no conviction, you've pushed
insurrection or a riot, they can remove you from the ballot. Well,
it's just going to be a game theory, reciprocal race
to the bottom, and the states will be taking off

(01:15:25):
the other candidate's parties. So it never looked plausible that
you're going to see the Supreme Court allow Democrats States
to remove Trump the dissent and the argument in the
case was over what standard there would be in Congress
for removing a candidate and the descent. They didn't want
to deal with it, but if they did, they said
it would be a majority of both houses. But the

(01:15:47):
majority in the case said two thirds, and that's probably
more in keeping with the US Constitution. Remember, you can't
enter into a treaty in the US without getting two
thirds support, So they take treaties seriously, and that's the
level of support you need. In the Senate, they build
in supermajorities in some instances, and so getting rid of
a president's pretty So they said they'll take two thirds.

(01:16:11):
That effectively means it's impossible. I like that because, look,
here's the weird thing. The idea of democracy is a
contested idea. You can have a thin version where you
just focus on the majoritarian credentials of a government and say,
you know, if people had a fair vote, then if
you elect Party X. That's the democratic output. In the

(01:16:32):
last twenty years, and especially pushed by the loyally cast,
you have had this moral overlay. The idea of democracy
has become more morally pregnant, so that they start with
how the government was chosen and then they build in, well,
is this person rights respecting? Is this party rights respecting?
Are they morally good enough? And that's what the Democrats

(01:16:53):
are trying to do. They're trying to take this idea
of democracy and saying we don't like Donald Trump morally
and so electing him is undemocratic. But think about it
coming up in November. Everyone knows what Trump did in
January sixth, it's been completely published, and your choices. Are
we going to let one hundred and fifty million people

(01:17:14):
make a call on what is effectively a political set
of facts and let them decide, or are we going
to let a few lawyers and a couple of judges
decide who can be president on a majoritarian basis five
beats four? And they want to say that's the democratic way.
It's laughable to me that that, you know, so the

(01:17:37):
democratic way to deal with this on the thin procedural
understanding of democracy has just let people vote in November.
And the sort of line you're getting from the New
York Times and the CNN is, you know, we have
to protect democracy by not letting people vote for the
preferred candidate who's five to eight points ahead in the polls.

(01:17:57):
You know, the Babylon b had a great sort of spoof,
a spoof piece. There's been a major blow to democracy
because the Supreme Court is ruled that voters get to
vote for their preferred candidate. Again, he hasn't been convicted
of anything.

Speaker 2 (01:18:12):
But he hasn't been challenged with anything.

Speaker 3 (01:18:13):
Yeah, I'm in charge of me. And they want to
take him off the ballot and they want to bankrupt him.
And this is third world stuff, you know, it's like Pakistan.

Speaker 2 (01:18:22):
I've had the impression there for some time that they
think that the unique and above everything, and that they
can mangle, they can mangle any anything they like to
get the result that they want.

Speaker 3 (01:18:36):
Well, it's because you become convinced of your own moral superiority.
It really broils down to a certain sense of sanctimony,
and you know, believe in your own pr and you
feel that it's fundamentally undemocratic in the sense that you
have this sense that what would those poor slubs who
are plumbers and secretaries know about the world. I mean,
I'm I'm mocking them, But the view is, well, I'm

(01:18:58):
a sophistic keid, I've got to I've got a higher degree,
and really my view should count for more than their views.
And you know at heart that's a version of aristocracy.
It is not a version of democracy. If you think
democracy is about letting the numbers count, your say counts
for as much as the plumber next door, and the
fact you did a women's studies degree, or you know,

(01:19:20):
you immersed yourself in the latest French deconstruction as person
at university. It doesn't really make you a better moral beat.
And there's no reason why you should think that those
sorts of people should get to shut everyone else out.
All right, So I think the Supreme Court did a
good job on this one.

Speaker 2 (01:19:35):
All right, So you believe that this would be the
result nine zero. I wasn't quite so sure about the
nine zero, but I knew it.

Speaker 3 (01:19:43):
Well, I'm talking only about the federalism point, yes, right,
So they can't articulate the other view you'd be letting
the states destroy the election.

Speaker 2 (01:19:51):
All right, So the three most liberal justices all women,
so Domaia, Kagan and Brown Jackson, they issued their own Well,
they went, they went for the federalism bit, and then
they diverted and they wouldn't go as far. They said
that the court was going, what do they mean by that?

Speaker 3 (01:20:10):
Well, they didn't want to go with the two thirds
of Congress. So the federalism point is which level of
government can take someone off the ballot? And they all
agreed it's not the states, because you get this patchwork
of candidates being thrown off the ballot and that was
always so he wins on that point, nine to zero.

(01:20:30):
And then you get speculation, well, okay, so it's it's
the federal government in Washington that can remove a candidate.
What level of support do you need to do that?
And I think the descent in a way wanted to
just leave the issue. So if it came up and
it became a live issue because Congress tried to get
rid of them, then they would deal with it. But

(01:20:52):
the majority, the five in the majority, said no, we're
going to look at it now, and you need a
supermajority two thirds two thirds of both I can't remember
I flipped through it. I think it's two thirds of
both houses maybe, So it's basically impossible.

Speaker 2 (01:21:05):
So that means that the story that I read with
regard to the Democrats looking to manufacture a statute that
would give the states power and take to take Trump off,
it won't work.

Speaker 3 (01:21:20):
It's essentially the same as the two impeachment to Trump.
It's a political action. You're trying to rally the base
and win over undecided. There's no there's no thought that.
I mean, they wouldn't get it through even on a
majority basis because the Republicans control the House right now.
So you know, it's just it's it's fundraising, it's all
those sorts of things. So yeah, you know it's probably
has some political purpose, all right.

Speaker 2 (01:21:40):
So two more things, both from the same category. The
thinking is that Roberts, who we discussed at length yesterday,
and we both had our opinions and they were somewhat similar.
But Roberts may have to throw or maybe intending this
our quote, throw a bone to Jack Smith, the prosecutor
over the over the the papers case down in Florida.

Speaker 3 (01:22:03):
Well, I don't know everyone speculating, but I mean, he's
only one vote. I mean, that's the thing about top
courts is you have a chief justice, but the chief
justice has no more say than anybody else in the court.
They have a little bit of administrative sway, but you
know he can't he can't. He doesn't get to make
calls on his own. So the real question I think

(01:22:23):
in that case is whether the Supreme Court. I think
the hearings are in April. How long do they sit
on their opinion. So even if they say yes, the
Smith case can proceed, if they don't say that till
July or August, it can't happen before the election. Okay,
So that's all Rob I mean said Trump that Trump. Well,
Roberts has to deal with the conservative wing of the

(01:22:46):
court too, And you know they're good, they said they're
going to expedite it. But I mean the problem is
that there's been Democrat lawyers pointing out that that there
were six hundred Republican votes in the primary in Washington
of a couple hundred thousand. They get no votes. The
Republicans forget Trump, it's three ninety four percent, And there
were some big Democrat lawyers saying it's it's the greatest

(01:23:10):
jury pool in the world for us. He was caught
saying that the greatest jury pool. Jack Smith brought the
case from Washington, d C. For a reason, And of course,
you know this is all on the immunity point. There
are other aspects of the case. But I would to
be honest as a republic I would not want to
face trial in Washington, d C. I think you have.

(01:23:31):
I mean, we saw what happened in March time. You
have zero chance of winning. And at the back of
the mind everyone knows, you know, what should happen that
even things up is that they should start charging Democrats
in sort of rural Texas. Get the jury pool from
rural Texas. Yes, you know that's that's and everyone, you know,
the New York Times would be going crazy. They're crazy already. Uh.

Speaker 2 (01:23:53):
The last the last point is one of the last
things you said yesterday was it's a bit early to
make a call on Amy Kearney Barrett. She went independent.
What did she achieve by that?

Speaker 3 (01:24:05):
And decided I don't know. I only had only chance
to flip through it. I mean, she side it looks
like with the minority, but I don't know what she's
trying to do there, but again she on the main
point she was with the nine zero. Yeah, I don't know.

Speaker 2 (01:24:20):
Yeah, all right, so we watched and we waite, and
it gets even more interesting, would you not agree?

Speaker 3 (01:24:27):
Yeah? Well, what is it? Eight months to go? It's
I mean, the really interesting question is how do you
get rid of Biden if you're a Democrat. And the
problem I think for them is that there are two
camps sitting behind Biden. You've got the Obama camp in
the Clinton camp. The Obama camp wants the open borders,
they want undermine American support for Israel, and the Clinton

(01:24:49):
camp is big on the war in Ukraine. They like
all of the sort of establishment DC stuff. They would
close the border. They have to agree. See, both of
them are getting sort of what they want from Biden. Really,
I don't think he's making any decisions. And it's not
going to be so easy to get rid of Biden.
I've heard this from a Washington d C. Friend who
the Republic said, because the two sides hate each other. Really,

(01:25:11):
there's no love loss between the Hillary Clinton and the
Obama camps. And to get rid of Biden, they have
to agree that they have to get somebody, they'll give
them at least as much as what they've got under Biden.
So yes, you know, people toss around Michelle Obama, but
I'm I'm not one hundred percent sure she can get
through the A lot of the Biden people don't like her,
and the Clinton people hate her, and so who are

(01:25:33):
you going to pack? Nobody wants Kamala, So we'll see.
As long as Biden's breathing, the two sides that are
sitting in the back, they have a you know they're
getting something. I don't know. It's I agree that Biden
right now. So if you look at where they stood
in twenty twenty comparing net favorable, so where you just

(01:25:53):
ask people, what do you think of Trump as a person?
Trump was a forty I think it was off the
top of my head. I think it was forty three favorable,
fifty four unfavorable. Four years later, he's forty four favorable,
fifty four unfavor. He hasn't moved at all. Nothing is
going to move people's views on Trump. If you just say,
what do you think of the guy? Biden has gone

(01:26:14):
from a net I think he was, you know, a
net he was plus eleven or twelve and twenty and
now he's he's way lower. So Trump is ahead of
Biden right now on favorability by twenty points. So Trump's
minus ten and Biden's minus thirty. And that's what's changed.
Everyone's locked in on Trump. It doesn't matter how much

(01:26:34):
money people spend. Some people hate him, but they're going
to vote for him because they hate Biden. Moore. And
right now, that's why Trump's gone up in the polls.
It's people haven't changed their views on Trump. What they have.
You know, people love them and people hate him, but
some of the people hate him hate Biden more now
and you know he's minus twenty to Trump on favorability.
So twenty percent of Americans preferred Trump to Biden on favorability.

(01:26:59):
That's not a political that say, like what do you
think of a guy? And that's not from a high
base for Trump. So that's what the trouble real. The
real question is can the Democrats to get rid of Biden?
And if they do, are they going to make things worse?

Speaker 2 (01:27:11):
Well, time will tell, Time will tell. It's a great
saying ye all right and time later time has gone.
Appreciate it. Thank you so much.

Speaker 3 (01:27:20):
All right, And let me say you were right about
Peters everything he's been saying about the press. Spot on, yes,
spot on, yes.

Speaker 2 (01:27:27):
But where does then the question is, and let's not
go any further into it, but then and then the
question is, with the with the press under assault, where
does that where does that leave us in the in
the democratic range of being fully informed?

Speaker 3 (01:27:43):
Well, luckily we have top level podcasters like you, Layton.
So that's that's that's a nice little respite.

Speaker 2 (01:27:49):
Anyway, It's not me, it's not me, Jim, it's the guests,
and I thank you, Conee you later. Now I'm doing

(01:28:12):
it a little differently this year. At the end of
the replay, I usually have a few words to say,
and every year I have to struggle to think up
what the appropriate thing is to put in this particular plot.
So I've decided to give myself a break and do
one that covers all of them. So if you've heard
this before, you can turn it off because you've heard it,

(01:28:36):
because it's going to be the same one for each
of the seven replays. Now, if this is the first one,
then I trust that you're having a wonderful holiday. If
you're not on holiday yet, your time will come. Rest assured.
I have enjoyed doing these because re listening to them myself,
I get more out of them and I see things,

(01:28:56):
or I should say, I hear things that I might
have got slightly wrong or I could have done better,
So it's a learning curve as well. Anyway, we will
be back for the next one a week from this
particular release, unless, of course it's the last one, which
is on the twenty ninth of January, and that'll be
the end of this replay series. Add on February five,

(01:29:20):
we shall return with fresh content in the meantime. At
any stage us drop us on notes if you've got
comment that you'd like to make later at newstalksb dot
co dot enzend and Carolyn at newstalksb dot co dot
nz and we shall talk soon.

Speaker 1 (01:29:44):
Thank you for more from News Talks at b Listen
live on air or online, and keep our shows with
you wherever you go with our podcast on iHeartRadio.

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Leighton Smith Podcast - Best Of: James Allan - January 8th 2025

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.css-14f5ked{margin:0;word-break:break-word;display:-webkit-box;-webkit-box-orient:vertical;box-orient:vertical;-webkit-line-clamp:2;overflow:hidden;}Leighton Smith Podcast - Best Of: James Allan - January 8th 2025