And two, again, what I like what actually Netflix did today was reclaim.  This whole rising support here reclaimed and started going higher. So it forced below and reclaimed. So welcome to Access to Trader, the number one community for those who are committed to taking control of their trading in order to achieve success, profitability, and longevity. Thank you for joining us. Here's Dan Shapiro to help you find your edge, master your process, and own your future. Hey, guys. Happy Thursday, everybody. Welcome to another edition of the AccessToTrader.com Nightly Wrap-Up Show. Hope everybody had a good day of trading. Things sometimes do play out like your game plan. We talked about yesterday, queues need to defend this level here three times in a row. We held the 280, 280, 283 level. We talked about the ramifications the longer the bulls couldn't reclaim the five-day moving average. We were probably going to go down to the 50. And it kind of played out that way pretty seamlessly. Very aggressive pivots. We'll talk about this in a few minutes on the pivot fee. But we talked about them last night. We talked about beyond setting up to the downside and the video setting up to the downside. I usually don't give out prices on the YouTube fee. But I said this three times yesterday. This 3160 level on Amazon was a big number. I held it three times. Stock got hit for like 45 points today. So I think the bulls, I think the bears did a great job this morning. They confirmed all those levels that we talked about on the queues. And we went straight down to the 50-day moving average. You've got to give the bulls a really good kudos kind of fighting off the mat. Just kind of getting off the canvas like Rocky Balbo in the 12th round and fighting off the mat. And not only reclaiming this rising 20-day support, they tried to reclaim the five-day as well, which is incredibly bullish. Now again, you could turn around and say, well, this was the case because Pelosi turned around and said, look, they're ironing out the details, whatever you want. It doesn't make a difference how a stock or an ETF or an index gets to where it needs to get. The most important part is it got there, right? And bulls held the 50-day moving average, reclaimed this rising wedge that finally broke the levee today, that had these really aggressive washes, and also tried to reclaim the five. So what we need to happen technically tomorrow, and these are baby steps, okay? We're not talking about reclaiming this 288 level, which is macro with the bull's need for a push back to the highs, but at least for the bulls, what they need to do is reclaim 286. 286 is the top of this declining channel on the Qs, it's also confirming today's highs. And if you are looking at charts today, you're going to see a lot of names that did very well, okay? But it's not the names that you think of normally. It's the names that have these crazy recent runs, like a snow, for example, or recent IPOs, or a letter U, right? Or a letter U or a beam. These stocks have a lot of strength. And again, it does really show that when speculation money is still there and fear is not an issue, technical is going to work out, but also speculation money continues to pour in, because again, this still is overall, quote unquote, a bull market. So we have the last presidential debate tonight, okay? We only have what, 10, 12 days left to election day. Again, the most important part is if you're unhappy with the current situation, vote. Okay, if you are happy with the current situation, vote.  Again, every vote counts, it might not seem like a big deal for you that your individual vote counts, but you never know, right? You absolutely never know. And as far as we all can see, it looks like a pretty dead heap. So every vote is going to count. Tesla today pretty much became a non-event. If you look at what Tesla did pretty much on the 60 minute channel today, nothing really, right? Nothing really, didn't really give a trade anywhere. It was stuck in this channel the whole day. If you look at the macro picture on Tesla, it's gonna need some time to kind of play itself out. Again, I'm kind of Delta neutral on the name right now. It's above the 10 day moving average. It's kind of above the five day, but again, it wasn't really a lot of enthusiasm here. So until Tesla takes out the channel up here or takes out the channel down there, it's probably gonna cause a lot of quote unquote shop. So there's going to be a lot of dead money there. I think what's important for tomorrow's session is maybe again, if we do have an update again, technically unless again, some crazy curve ball comes out after the close or tomorrow morning, you know, you have to assume, well assume, but you have to kind of play for a bounce, right? Some sort of bounce. And you wanna look at names that held today, right? Maybe like a zoom that held its rising support and you know, great job on zoom to reclaim the 10 day moving average. Even a stock like DraftKings for God's sake, right? DraftKings has had a tremendous move down, finally found some area of support in the longterm. Again, again, you could see it keeps on getting rejected off this orange line, which is the five day. But again, if it reclaims the five day tomorrow, maybe it finally runs back to this 45, 46 area. So again, nobody's looking to reinvent the wheel again. We're just taking it day by day, trade by trade, an hour by hour, minute by minute, just basically what we're seeing from the technical cases. Like for example, I was pretty much sell by the last couple of days. And now I'm kind of Delta neutral to bye-bye as going into tomorrow, because we got the washes today. We got the washes yesterday. We got the stocks that have these big, big runs that finally came back into support. We got all that. So the fact that the bulls did hold support, held some levels of interest, reclaimed kind of the five day moving average, at least on the cues. I wanna give the bulls at least the benefit of the doubt tomorrow, okay? Again, we're mostly still in scout mode. Nobody's trying to figure out what's gonna happen more than one trade at a time. This is, again, so much stuff going on in the world with stimulus and with COVID. And again, ridiculous cases of COVID coming back. Again, election coming back in the next 10, 12 days. And does anybody really think after the poll numbers come in that winner is actually announced? Do you think there's gonna be no controversy, right? So it's gonna be prolonged. So we have to see where the market is gonna go after the election day. It's very, very tough to put any long-term money at work without knowing exactly what is about to happen. Who's gonna be behind this steering wheel driving this into 2021? So it's gonna be very, very important. For now, again, scout mode, day by day, trade by trade. So again, we got the trades that we wanted today. We pretty much had bias to the downside in the video, beyond dog, Amazon. It was very, very, you could see it kind of early play out that the stocks that were strong. For example, I really liked Baidu from yesterday, right?  Baidu didn't even do anything, right? He literally did not do anything. So when you have a strong stock like Baidu that couldn't rally, we turned around and we said this in the live webinar, and we're like, well, you gotta start looking to the downside and just waiting for everything to confirm. And the most amazing part about today's session was nothing was really going on for the first like 40 minutes and then like literally, somebody turned on the faucet. We were waiting for these downward channels, some really, really big moves. So let's talk about them right now, guys. So obviously Baidu never came close to confirming. Again, we talked about in the video last night. The three stocks we covered last night in the video were NVIDIA, BYND, and Amazon. Amazon, I gave you the specific numbers, 3160. Again, a $45 flush, but let's talk about them one by one. 536, if it builds below, can flush macro. Here was NVIDIA, right? Here was NVIDIA, here's the 536, the rising wedge. Once it broke that, went all the way down to 529. Really big move there. As soon as the cues collapsed below that 283 level so that everything else. Beyond was my big winner today, BYND 7550-75 if it builds below, can flush. Here was BYND, right? So here's the 75. Again, we discussed this for a couple of days. Went all the way down to 67 change. Nice move there as well. Deputy dog or dog or blah, blah, blah, whatever you want to call it. Again, not the biggest move in the world, but 100 if it builds below, can flush. Here was dog, right? Here's the 100 flush, right? Here's the 100 flush. Pretty much closed at the low of the day. This one did not actually even attempt the rally back. But again, not every single trade needs to be $15. Amazon was the big one right here. $31.60 held three times. If it builds below, can flush. Here was Amazon, right? Here was the $31.60. $31.60 was the low from last Friday. $31.60 was the low from yesterday. And again, when I tell new traders, guys just really understand what I'm saying. There's no point to have an argument with somebody on the other side of your trade. If technical analysis says, this is the level, this is the level, okay? You don't need to sit there and try to tell a human being they're wrong. Okay, you're either gonna make money on the trade, you're not, okay? It's very, very important. Just let the market trade. Now, you don't need to be right every single trade. Just you don't have to argue with everybody in every single trade. Nobody's saying Amazon's not the greatest thing since sliced bread. But there's a big difference between traders and investors. Today, we were traders on Amazon. If you are an investor on Amazon, this doesn't apply to you. Don't worry, the stock will be higher than you probably paid for it in any given time over the last year. But the moral of the story is, traders and investors, they're speaking two different languages. Please don't confuse the two. So 3160 broke down and traded right to the low here of the October 6th lows, all the way down to 3120. So really nice move on Amazon. Apple, the funny thing is again, this is when you, again, this is how I'm like getting data. We, you know, again, as soon as Apple got upgraded today, and it got upgraded today, it came no way near the macro area. We knew everything was gonna be to the downside. So it never came even close. Netflix for experienced traders, only 488 health, four times pre-market. Again, collecting data, pre-market data is very, very important. After hours data is much data, right? That's the whole point of gathering information. The more you have in front of you, the better choices and the better opinions you can really consume. If it builds below, it can give a quick flush, new traders stay away. Because again, the reason why I said new traders stay away, because again, think about this guys, and Netflix is down from, you know, from 557 to 488, right? So again, it's not the easiest trade in the world, but you know, Netflix did actually what it did how to do, did how to do, say that five times fast. Took out the 488, here's a 488 right here. Took out this whole 488, went all the way down to 482. Again, what I like what actually Netflix did today was reclaim, you see how it reclaimed here last time? This whole rising support here, reclaimed and started going higher. So it flushed below and reclaimed that. So look how many days in a row Netflix is down. One, two, three, four, five, six, seven days in a row. It'll be very interesting to see if Netflix can open lower and wash out tomorrow morning, and kind of hold today's lows, and kind of go red to green, could be a very interesting trade back to the upside for a good dead cat balance. Again, nobody's talking to go back to 560, but hell, the stock is down from 572 to 482. You tell me if the stock can't get back to 595, 495, 500, right? Definitely good for a dead cat balance. I want to keep an eye on that for tomorrow. Roku, again, this is where we knew the stocks were just weren't strong. This wasn't actually the pivot, I corrected it up here. It was actually around 29, only went up about a dollar, even less than a dollar, nothing there. Facebook went pre-market, two 79 needs to build, rejected three times pre-market. Here was Facebook, so here was the 79, right? Here was the 79, 79, 79. It spiked up pre-market on WhatsApp News to 382, 282, excuse me, and then it came right back in. This is, again, this is why you knew the market was going to be very, very weak. ADI never came close. Again, this is what I mean. It only ran up like 50 cents a dollar, not a big move there. Take on the way down, Amazon got murdered, beautiful move on beyond, DDOG, take on the way down, great trade on NVIDIA. Again, fantastic pulls, really, really fantastic pulls. And basically what I just mentioned on Netflix, that's kind of what I was saying, pivot, that's what I was talking about later in the day. It obviously just never got there. But again, we should definitely watch Netflix, if not for tomorrow, then definitely for the next couple of days. So again, I want to give the bulls, I definitely want to give the bulls the benefit of the doubt tomorrow. We'll see how the market opens up. We'll see how much value, again, from now to the election, again, just tread water, trade, trade value only. There are good value trades throughout the day. The most important part, just take it one trade at a time. Guys, God bless, have a great night, and I'll see you all tomorrow.


The first thing we want to talk about is signaling theory. And if you could just explain for us what fitness indicators are in general and why they're so important to understand in the dating scenario. Signaling theory is one of my favorite topics because it's about how do animals, you know, including humans, send signals to each other that are reliable and honest and worth paying attention to. So a fitness indicator would be any signal, any indicator, any cue that says, I'm fit, I'm worth interacting with, I'm worth mating with, you know, in a sexual domain, or I'm worth investing in if you're an offspring trying to show off your fitness to a parent. So it's got all kinds of functions, right, social, sexual, parental, family. You can even signal your fitness to a potential, you know, employer or whatever. So it's a very broad concept. But at the heart of it is the idea that you're sending a signal that would be hard to fake if you weren't as fit as you really are, okay? So it's just like if a weight lifter lifts a heavy weight, you go, oh my gosh, you couldn't have done that if he wasn't really strong. If you're sending a signal of, let's say, particular kind of fitness like intelligence, okay, then you're showing I'm solving problems in a way that I couldn't do if I weren't as smart as I am. Or if you're sending a signal of, let's say, mental health, then you're showing I'm resilient and happy and I can handle stress in a way that I couldn't if I was really neurotic, anxious and worried. In the dating scenario when trying to signal the right things to your mate, what scientifically is shown to make us more attractive in terms of signaling? Obviously we know fitness in the exercise domain, but we've heard a lot about humor and its showcase of intelligence. What are these other signals that we're looking for in partners? Well, the main things I've focused on in my research because I think they're important and interesting and sexy and attractive are intelligence, creativity, art, music, humor, moral virtues like kindness or reliability, and mental health. Those I think are the main things from our brain that are kind of fitness indicators. Then of course there's all the stuff with your body, like are you strong? Can you run fast? Are you flexible? Can you do sports? Stuff like that. I think this is really important because a lot of young men tend to think, well, I wasn't born over six feet and I'm not athletically gifted so I'm out of luck. I see this all the time and as a human being, we've figured out plenty of other ways to demonstrate being a high value to the opposite sex, but those things need to be developed just because they just weren't handed to us. That's okay. There's other ways of going about it. There's other skills that you can develop, humor, certainly being one of them, creativity being one of them. As you were just also mentioning about moral virtues and what's once again, those need to be developed. Though it may seem like a long road, even just showing that you're willing to put attention to those things and work on those things are certainly enough to get other people interested. Yeah, absolutely. I mean, the great thing about all these mental fitness indicators like moral virtues or creativity is you can work on them. You can improve them. You can build them. Most guys don't bother. They do a little bit of art and music in high school and then they forget about it or they read a bit during college and they don't read any more serious nonfiction ever. They don't really take care of their mental health with sleep and meditation and exercise and all the stuff that we know helps. You can cultivate these and also, your other point, women will notice that you're trying. Even if you're not there yet, they can see this is a guy making an effort in his life. He's got a plan. He's got ambitions. I think that's hugely attractive because women know damned well that guys under 30 aren't going to be the awesome professional successes that they might naturally swoon over. They can extrapolate, project, here's this guy now. Where is he going to be in five years, 10 years, 20 years? In the mating mind, you talk about these skills as they're not relevant so much anymore to survival. These skills are pretty useless. Being able to play guitar unless you're of Johnny's caliber is probably not going to put food on your table. It's not going to allow you to survive in a classical sense. What we're developing here, these skills are showcasing this dynamic part of personality that attracts us. It's not necessarily the fitness that we all think of. To go along with that, there was a time when I was young and it started to dawn on me that I'm not making it onto the football team. I'm not going to be playing basketball.  There has got to be another way. Luckily for myself, music was close to my heart and my house with my dad being in a band. I saw that as an opportunity to, well, I need to put all of my eggs in that basket. The other thing that was popular at the time, it was in the late 80s, early 90s, skateboarding was coming into its own as a sport in and of itself that was gathering attention. For me, it was those two things. To be recognized and either one of those was going to give me a shot. I threw everything I had at both of them in order to get that attention.  It seems fascinating to me that all of these skills that we're talking about here have shaped our brain through this idea of sexual selection. The brain is pretty wasteful. Yeah, it's a big wasteful ornament and that's been a big theme in my whole research program. I think a mistake that a lot of guys make is imagining that, okay, because there's this set of professional musicians, rock stars who attract a lot of groupies, I have to be as good as a rock star at keyboards or guitar or DJing or whatever in order to attract women. No, you don't. You just have to be impressive enough. You just have to develop the skills well enough to be more worth listening to than not. Guys can't hold themselves up to a professional standard because you don't have to make a living doing these things. They just have to be sexually and socially attractive. To go along with that, look what it's conveying, what it's showing, that I'm willing to put in the time and the effort and intelligent enough to figure this thing out to a certain level that's certainly going to transition into other areas of your life and that that dedication and focus is going to certainly convey itself and be seen in other places. Yeah, if you've got the ambition and dedication and self-control and willpower to spend even just a thousand hours learning some skill like drawing a woman's portrait or playing piano or doing a little bit of improv comedy, whatever it is, that reveals an enormous amount about your character and your self-control and that women know that will translate into other domains like your work and your family life. What's fascinating is this is not what we classically think of when we think of impressing a mate. A lot of us through marketing and the way that it's perceived in media, it's flashy. It's the fancy car, the nice watch, accumulation of goods. What we're talking about here is developing skills. This is not what we normally think of when we're trying to impress a mate. How have these pressures culturally and in society, especially through marketing now, change the way we view sexual selection? Well, of course, advertisers want to convince you that you can't succeed in the sexual marketplace without buying the products. And they do a very good job of instilling, making you sexually anxious and then saying, and here is the solution, buy this good, buy this service, and then you'll be good. The watch, the car, the clothes, whatever. But women see through that pretty well. And a lot of guys spend a vast amount of time and energy chasing money to try to buy this stuff to attract a mate when they could just be taking that same time and developing actual skills that could last a lifetime to attract a mate. So you have to figure out what is your real goal? Is it to consume or is it to mate? To go along with that, there was the young man from Santa Barbara. Elliot Rogers, right? And when you looked at his social media and things like that, he had the BMW. He had the designer glasses. He had all the name brand clothes. And he was he desperately was trying to signal to all these women. But once again, that that chasing and that signaling had let him down. And which to the detriment of of the society around him, he took it out on on those people. Yeah, that's a really sad and tragic example of taking the consumerist game like way too seriously and then failing to cultivate you know, the other skills and traits that could have really helped. Like if he had just worked a bit on like, how do I not be creepy? That could have gone a long way and it could have saved, you know, some some lives. So when we think about it, classically, we think about the Peacock has its tails, birds have their songs. We've seen Planet Earth with those fancy dances. And obviously, we now know that consumerism is not the way to get there. What in your mind is the better trait to display as we're working on improving ourselves? What I've noticed with my undergrads lately is that they've really been failed by K through 12 public education in that they really don't know a lot about the world. They really don't know basics of like geography and history and culture and ideas and philosophy and science and so forth. So it's not that you have to become kind of a walking wikipedia to succeed on a first date, but you should have some idea what's going on around you in the world and society and culture. And a lot of guys don't spend enough time doing that, you know, thinking, hey, maybe I should like subscribe to the economist and like read it for an hour a week, in which case you'll know more than 95 percent of guys. About the state of the world. So I think general knowledge is a great way to show off intelligence and learning and just engagement with the world. I think. I'm not a great dancer, but actually being able to dance is really valuable. A lot of women love to go dancing and love men to take them dancing.  And they should do like a little Napoleon dynamite and like practice in their room for a bit and at least get decent at that. And that'll go a long way. You were mentioning to learn the dance. It's to be willing to dance to be willing to put yourself out there and allow the music to move you in a way that allows to let you feel good. That's certainly enough to get the girls giggling and want to be out there with you. Exactly. And that's, you know, it's funny. You should mention dancing because one of the things we do on our boot camps here in LA is on Friday night, we take our clients out and on the guy group programs. They dance for them, dance in what we call a diamond. And it's not about actually having rhythm and it's not about being this tremendous dancer to your point earlier about being the professional. But it's the unabashed, not carrying how you are perceived and allowing yourself to have fun in the moment that women pick up on and are drawn to and sometimes the most awkward, weird dances that you would think, oh, these are no way would that attract someone to dance to dance with them. Actually draw in people because it allows everyone else to let loose a little bit and not take themselves so seriously. Yeah. And dance is a funny thing because women basically read your attitude as a dancer is being kind of a proxy for how you'll be in bed. Right. So can you can you be in your body and have fun with your body? Like you don't necessarily need perfect rhythm or a lot of different moves or like doing your shuffle dancing or break dancing or tutting or whatever you're doing. But you just need to be comfortable as a person and not take yourself too seriously.  So if you can be the guy who's willing to kind of get out of your head and into your body and women can see that, then they'll kind of read that as, oh, he'd be fun in bed. And we've been probably dancing for at least $100,000 years as a species. So it's a pretty primal thing. Yeah. And that's exactly it. If you look across cultures, completely different cultures, they're all dancing and moving to music. Well, I don't know. Where do we get this notion that we can override four million years of baked-in evolution that's in our DNA and we're all of a sudden now we can override it? No, we can't. Now, earlier this month, we talked about this third dating market that's emerging online and it seems like more and more people are gravitating to it. One, just because of its ease, you're on your phone all day. Why not join an app and see what's out there? How can we take these same things that we're developing in our in-person dating life and showcase them online to be more effective? Well, I think the number one thing whatever dating app you're using is just give some information, put some effort into actually having a profile that somebody would enjoy reading and it says something about you. Like, I'm astonished at the number of people on Tinder who don't even include a single word, just some photos and bad photos. And how is someone supposed to evaluate you based on almost zero information? I've used match.com. I've used Tinder. I've used OKCupid. I actually prefer OKCupid because they've got these hundreds and hundreds of questions you can answer and then you can get your match percentage. How closely matched are we? To me, that gives a huge boost in terms of the likelihood of a first date succeeding. Both in terms of the questions and also you can write pretty long profiles. So you should mention this stuff about yourself that it's not like you should do a list of all your fitness indicators. You have to make it fun, engaging, story-driven, visual, etc. But you should do a profile and then show it to some actual women, like female friends, and go, what are the strengths and weaknesses here? Do a little test marketing because it's very hard for a lot of guys to anticipate how will a woman read this? Is it too narcissistic? Is it too self-effacing? Whatever. There's something you said there that I think is a magic word when it comes to these dating apps and you said the test market. These pictures and it's marketing material. And so these pictures do need to be done well. And I know from personal experience that when I first got onto those apps myself, I had this idea of, well, I don't want those pictures to look like I'm trying hard and I need it to be relaxed. And I talked myself into having them be really planned. And of course my response that I had gotten from those was also bland. Was also bland. Then we had taken some pictures for our website and for other for social media. And I used those pictures that were professionally done on my, and of course my hit rate went through the roof. And those pictures are not only telling a story, there's a lot of what they're not saying as well, but there was care put in them. They said a lot about my personality and they were able, for other people, for the women to feel good then about connecting with me. Women tend to read like the effort that you put into the profile is going to reflect on the effort that you might put into a date or a relationship. So if you're just a lazy slacker and you're not really making the effort on profile, why would they expect you to be capable of making the effort to have interesting conversation on the date? To go along with that, I know for the other guys out there who are thinking about it or have done it, they've had a hard time in those corrections. And I mentioned like don't feel weird about spending a hundred bucks on a professional photographer to come over and do some natural shots or have a friend who is interested in photography and you guys go out. Right, with a good camera, not blurry, not middle of the night while you're out partying. And you'll be surprised with that, what that does for you. Well, there's a few things that you mentioned that I really want to key in on and number one is you want the photos to tell the story as well, right? You have only so many words and the photos are in large part how they're going to picture you in person and also think about how they would feel next to you in those photos. So a lot of us, when we're picking photos, we're picking photos with groups of people, it's tough to see who's who's us versus our friends. Oh, is that girl our sister or our girlfriend? We don't know. We're sending all these mixed signals. The photos should clearly show you in an environment that you're having fun that would allow that person who's viewing the profile to see themselves and vision themselves hanging out with you and having a good time. Number one, the second thing you talked about was take a position on something, stand out for something. And a lot of our clients will have strong disqualifiers in their profile.  Why? Because they took a stand. They said something. They said, hey, I have and it might be silly, but they said, don't message me. And that disqualifier shows the other person of like, oh, OK, I actually want to be interested in this person. Instead of the generic cast the widest net, try to get everyone to like me. Oh, I like any type of pizza. You could put anything on your pizza and I'll eat it. That doesn't work online. Yeah, it's OK to say what you love, but you don't have to say I require a woman to love or hate the same thing. So you need to have strong decisive opinions. I mean, I would advise like unless you have an extremely strong passion for politics to kind of steer away from that in a profile, because a lot of guys on average tend to be more conservative than women. We know that from political psychology. So if you highlight politics, a lot of women will kind of have a very negative reaction to you bragging about like how many guns you own or whatever. And also religion is tricky. So, you know, unless you're definitely like a Mormon and you want to meet a nice Mormon woman, then just try to cast a wide net. But you can say what your beliefs are kind of at a more abstract level. Like what do you care about ethically? You know, you can say I'm really committed to whatever this environmental cause or for animal welfare or stuff like that. And then women will go, oh, he cares about something other than himself. That's that's virtue signaling, but it's a good kind of virtue signaling. And in the moment, a lot of times what we think logically would turn us on or get us excited are not actually the things that turn us on and get us excited. Yeah, you can't you can't figure this stuff out from first principles, right? It's just like marketing. An ad agency cannot just create an ad campaign and then be confident. Like, well, it ticks these six boxes, so it's bound to work. No, they have they have to test it. They have to do focus groups. They have to like air it in a particular market. And if it works there, then go nationwide. And it's the same with dating tactics that, you know, you can read evolutionary psychology and you can develop pretty deep insights into how all this stuff works. But when it comes down to specifics, you just kind of have to try stuff. Either asking your female friends, what do you think with this work? Or just try it out on dates. And as long as you have a playful attitude about it, there's not much of a downside. Yeah, when when consent is in play, it's respectful.  Yeah, you've got to do stuff that most women would understand is challenging, right?  I'll get it right. Or even serving in the military is a huge resilience indicator to a lot of women. And it's not that they're obsessed with like soldiers and guns. It's that they know, oh, military training is hard, deployments are hard. And he made it through. Or even doing stuff that's potentially socially embarrassing, public speaking, improv comedy, even live musical performance. If you're very neurotic and you have stage fright, you won't be able to do that stuff very well. So a lot of these things that are kind of indicators of high value are partly indicators of mental health and resilience. And you can imagine that would be very attractive in a mate, right? Neuroticism, worries, anxiety, catastrophizing is not what we're looking for when we're trying to have fun on that date, when we're trying to get to know someone. We talk a lot about happiness and the pursuit of happiness and how this trap can happen where we're just on this spinning wheel towards happiness. Obviously outward expression of happiness, being able to show that you have a healthy mindset is important. But the singular pursuit of happiness is where we kind of get off track. Humor, big one we talk about. Obviously, whether it's getting on stage and doing a stand up or just being able to roll with the punches of life and have some fun at your own expense, even self deprecating at times showcases that intelligence that we're talking about. And improv, I mean, what a wonderful thing. And we love it so much that it's incorporated in our classes. But it allows you to laugh at yourself. It allows you to practice being witty. It allows you to practice rolling with the punches, as you said, and self expression. And listening. And listening. You have to be an adept listener. Openness is another one, right? That I'll give it a try mindset. Yeah. So the way emotional stability versus neuroticism is one of the so-called big five personality traits, openness to experience is a second of the big five personality traits. And it correlates a little bit with political attitudes. It's like people on the left tend to be a little more open than people on the right. But you can express openness in so many ways, like doing the foreign travel, sampling different cuisines, reading a wide range of books, listening to a lot of different genres of music, dating a variety of people from different professions and backgrounds and so forth. And I think for many women, openness is attractive because they know, okay, this guy's not going to end up being a kind of stick in the mud, boring husband by age 35. He's going to keep his edge and try new things. I think a lot of married women are terrified. I'm going to be stuck with the same guy forever. And I love him, but I'd kind of like him to grow with me and be willing to try new things. And if you can demonstrate kind of a reasonable degree of openness in the first few dates, it's very reassuring to women that they're not going to be trapped with the same stale personality forever. Now, let's talk to that guy or girl who is struggling in these areas, in these traits. And we've talked a lot about obviously the influence of media steering us off course. What advice can we give someone who's identified, okay, I need to improve these traits, how can we do that? There's so much information out there, right? And it's so easy to access, but a lot of it's wrong. This is one of my professional gripes as a psychology professor, is literally about 70 or 80% of the psychology that's presented to the public through magazines and news media is wrong and literally wrong and we know it's wrong and we've known it's wrong for 20 or 30 years. So it's really hard to find the good information. I think what you need to do is figure out what specific thing do I want to work on? You can't just go, my life's a mess.  I need to level up in some generic way. No, you need to do something specific, like ask women you know, what is my weak spot? What is the one thing that I need to fix before anything else? You probably don't know what that weak spot is, so you need some radically honest friends to tell you. And then you'll be depressed, you'll be sad, you'll need to sit with that for a minute and then figure out, okay, what do I do about that?  Then okay, you need to learn about that and you need to go on YouTube and watch some videos about it and read the right books and take advice or maybe somebody says your sense of humor sucks and you make too many puns and you don't tell enough funny stories and then you need to do things like watch some stand-up comedy and pay really close attention to how long does a joke take? How is the pacing? How is the delivery? When does the comedian pause? When do they speed up? And then just practice that stuff on your friends. You don't even need to restrict it to sort of dating practice. Now you also discuss intelligence markers. We've talked a little bit, danced around it a little bit here. Humor being a big one of them, but what are some other intelligence markers that come into play here? Well, there's the sort of consumerist intelligence indicators which are called college degrees, right? This is one of the most expensive consumer goods you can possibly buy is formal higher education.  Well, guess what? Most young men get college degrees now and even graduate degrees. That's great, but it's a very, very expensive way to indicate your intelligence in both time and money. The more natural ways we display intelligence are honestly just through talking, conversation, being a good conversation partner who can tell interesting stories, who's got some interesting views about the world, who can be funny, who's a good listener, who's socially astute in interacting with women. And there's a lot of different components to intelligence. Most women are not going to fall in love with a guy who's just a great chess player. Some will, but that's not a natural way that men displayed intelligence 50,000 years ago. The way our ancestors displayed intelligence was being socially savvy, being good at hunting, being good at forming alliances with other guys, having technical skills like making weapons and tools, and just being generally competent at learning stuff. So it doesn't matter that much what you become competent at. As long as women can see, oh, he's good at this and this and this and this. Therefore, his brain probably works pretty well and he's smart, smart enough for me. Now, whenever we discuss dating on the show here, we get inundated with messages around the nice guy and nice guy syndrome. It's been coined a lot of things.  So he gets all the mates. And we've also heard of the dreaded friend zone and being the nice guy who finishes last. You came up with the concept of the tender defender. And I think it's fantastic. I'd love for you to explain to our audience what you mean by that. And then we can discuss how we can become tender defenders. Yeah. The tender defender is the idea that women want a kind of mosaic of traits that a guy can kind of deploy in different situations. So if she is with him and they have kids and there is a serious physical threat or even a social threat, reputational threat to their family, he has to be able to step up and be the defender, protect her using any means necessary, right? Machiavellian intelligence, if it's a social threat or physical force, if it's a physical threat. On the other hand, most of the time, she'll want him to be tender, caring, compassionate, a good dad, a good partner, attentive in bed, etc. So guys have to figure out how do you display both sides of this? How do you show a woman you're capable of going into defender mode, protective mode, and stepping up when there's a threat? But also, most of the time you can be kind, normal, not really nice guy, but warm, warm-hearted. And getting that balance right is very tricky, particularly for young men.  Because he's bad. He's not ethical. He's not capable of real commitment. But you also don't want to be the nice guy who can't ever stand up for himself or argue with the woman or say no to her or say no to anybody else. So do you have an ideal breakdown or ratio to tender to defender? Well, what we said in the Mate book is that you should be in this sort of tender, warm-hearted mode, like about 95% of the time under most circumstances in kind of civilized society, and kind of in defender mode, a small percentage of the time. But that small percent is really crucial and women pay a lot of attention to it. It's about expressing assertiveness not constantly, not over the top, but expressing assertiveness in front of her on a date that demonstrates that there is this defender side to you. And being someone who's virtuous, caring, compassion, all these things that we've talked about is important 95% of the time. But being able to step into that moment of tension, that moment of, uh-oh, what are we going to do? That 5% of the time matters tremendously to avoid the friend zone, to avoid the nice guy syndrome. And of course, those are the moments that get elevated in this bad boy mindset, right? He comes in and saves the day.  He's being selfish, taking whatever he wants, using people that doesn't actually work. Yeah. And I think the defender mode, it really helps a lot to have done some combat sports, like your mixed martial arts, Hujutsu, stuff like that. Not that you'll ever necessarily use it, but guys carry themselves differently if they've had that training than if they haven't. And women notice that. So I think that's one way of sort of displaying defender potential. And then I think being socially assertive is the other thing. Are you willing to speak up in groups? Are you willing to stand up to authority if the authority is threatening a woman, right? Are you willing to take risks for her? She'll pay an enormous amount of attention to all of that. But for introverts like me, it's tough to learn that kind of social assertiveness. It's kind of taken like decades and I've had many, many errors and missteps before I really understood how it worked. There's also, as you say, there's also sexual assertiveness as well. Yeah. Oh, the third thing absolutely is kind of your potential for sexual domination to the right degree under the right circumstances if you're doing the right kind of sexual role play. When I teach about BDSM and kink in my human sexuality class, a lot of the students' minds are kind of blown about, wait, you can leave your egalitarian feminism at the door when you go in the bedroom and you can do stuff that's that's a power exchange dynamic where somebody takes the lead and the other person follows and and then they go, of course that's hot. I mean, that's every female romance novel has that power dynamic. And a lot of women and men fantasize about that, but they're too frightened to really play around with it.  So yeah, combat sports, social assertiveness, BDSM, three key ingredients. Sounds like a very fun semester at the University of New Mexico. Now, obviously, we're all thinking, how can we do this authentically, right? A lot of what we talked about could be outside of your reality, right? We're blowing your mind here. Oh my god, I have to work on all these things. And I think this authenticity paradigm comes into play here where it's like, I don't want to do this just for other people to like me, right? I don't want you to listen to the show and go, OK, I got to run out and do all these things just to get other people to like me. How can we do it authentically? Because if it's inauthentic, it's not going to work. I think this is a really tough issue for a lot of people to get their heads around. And the way I like to think about it is the self that you want to be authentic to is your future best self, 10 or 20 years down the road. Being authentic to your current mediocre, half-baked self is actually not, doesn't make any sense, right? It's very comfortable. But that's not a very deep form of authenticity. Your real authenticity should be to your genetic potential, your mate value potential, your social and career potential and all of that. If you actualize that, then you're being authentic to your real highest self. And the views of other people, the views of potential mates and friends and your family, these are all just hints about what direction to go to get to that authentic point. We're just coming out of Mother's Day about to celebrate Father's Day in terms of raising a child in this environment. And you work a lot with college students. What advice would you have for a parent who wants to set their child up for success in the dating realm to give them a leg up and give them the opportunity that they need to develop out these traits that we highlighted today? Yeah. Well, of course, the most important thing you can do if you want to have kids is choose a good mate so the kids will get good genes. But if you're already past that point, you've already chosen your mate, then I think it's really important to let the kids take risks and take some hard knocks and learn resilience. There's great books out now like Greg Lukinoff and Jonathan Haidt, The Coddling of the American Mind. Brian Kaplan has a great book called Selfish Reasons to Have More Kids that basically says trust your kids genes. They'll probably do okay.  You don't need to try to push them all the time towards excellence in some perfectionistic way. You can just let them be kids and they'll probably grow up all right. There was a book that was a bit controversial that I wanted to check out. I think it was called Free Range Parenting, which is another good one. Yeah. I'd recommend that and try to make your kids' lived experience as similar as possible to, I don't know, the way I grew up in Cincinnati, Ohio was we would go out on a Saturday morning and play in the neighborhood and have adventures in the woods and our parents would have no idea what we were up to. Hopefully, we'd come home for dinner. If we were late, maybe we'd have a neighbor call, like, oh, they're still okay. They're just eating over here. But there was no monitoring. There was no parents checking in, chauffeuring us around. We were as autonomous as possible. It's not that the world is objectively riskier than it was then. People just think it's riskier. Kids are very, very sensitive to the parent's reactions to situations. If a kid falls down and skins their knee and the parent is like, oh, my God, this is terrible. I should have been monitoring you more closely.  If the parent's like, yeah, if that happens, every kid gets that, you'll recover. It'll hurt for a few days. It creates a completely different response in the kid, and it reframes how they think about the experience. To go along with that, I remember falling out of a tree, playing in the woods with the neighbor kids. I punctured my alarm. I still have the scarf from it today. And seeing it, and at this point, I've already been to the hospital multiple times for stitches. I think I was at 12 at this point. I remember going home and I was like, Dad, we've got to go to the hospital. I fell out of a tree. He looked at me and was like, yeah, let's get the car. It wasn't a big deal at that point anymore because it was just a normal occurrence with me going out in the woods to play. Yeah. And I think the same thing also holds in response to emotional setbacks. So if you've got a teenage kid and they have a crush on someone and they get spurned and rejected, and they're kind of sad, if your response is, oh, you poor thing, that's really, really hard versus the mating market's tough, and you will have heartbreaks now and in the future. And you will get over it in about a week or two. And I've had that. Your dad's had that, whatever. It also reframes mating setbacks as not catastrophes. But I worry that a lot of American parents are sort of so guilty about going to work and not being around as much for their kids as maybe their parents were, that then they overdue the coddling and the emotion signaling, mostly out of guilt. Right? And I think that's a terrible way to raise a kid. Well, thank you so much for joining us today. We really appreciate your time. A lot of great advice out there for dating both men and women can take a lot from this understanding what goes into attraction and actually making us a compelling mate to someone else and having a great first date. We really appreciate it. I'm sorry, sir. Thank you, gentlemen. Thanks, guys.


I have just heard, Diga, five years ago she was involved in an incident where she had a dumbbell come across her face and it hit her ear and has caused ringing, her hearing to go in and out. You say that again. She said she got hit by a dumbbell a couple years ago and she said has caused her hearing to go in and out, constant ringing and she said when God touched her it was like her ear was on fire and she's able to hear it properly now, no more ringing. And how long was that ringing there again? Five years. Five years. Jesus, we love you. You sense a mirror. What do you sense around you right now? What is it like? It's just like it's euphoric. It's something I can't even explain. It's like I feel like this peace and this calmness, but yet I'm shaking all at the same time and it's something I've never experienced. I'm sorry if I'm talking with my eyes closed. I just feel like he's here and he's just holding me. He's near. He's near. Thank you, Jesus. I'm praying for her and what did you just tell me? I can hear everything. Everything you're saying. This is a true miracle, church, a true miracle. She's just trembling right now. What does this mean to you? How important is this to you? It's everything. I've always asked God to use me for my trials, my tribulations, my past, my childhood to help the broken hearted. And when I was in worship, I was praying for everyone that was broken just to be healed, not even me, just everyone around me. And now to hear I was in the back because I'm serving, but speaking super low and I'm like, dude, you're being really loud right now. It was so weird because I've never been able to say that. I've always had to say, I'm deaf. I need you to speak up for me no more. And to Jesus belongs to all the glory. This is beautiful, church. Wow. God bless you.


It feels like a Bernie Sanders crowd to me. I think it's going to be Hillary, though. On the GOP side, I'm trying to predict, like, not Trump, although I'm more and more worried about that. But if you had to pick one, I think Rubio fits the profile of a traditional nominee. Maybe the GOP is broken enough that they will have a Trump or a Cruz or a Carson. But in the establishment lane, Rubio, I think, is a lapped bush and everyone else and looks pretty good. As a Democrat, would I want the most insane person? Like, would I want Trump to possibly be the person? Or would I want someone? Of course you would want Trump. Yeah. How long can I hold on to that dream? I mean, I think it's going to take a while, right? Like, I think Rubio might win, but I don't think it'll be like, oh, everyone falls in line all of a sudden. I think you'll have drama for months and months. And I try and talk to myself, too, about, like, we're kind of on record as being skeptical of Trump's candidacy. But like, any general election which Donald Trump is involved would be like the best news story in the history of politics, basically. So you kind of hedge your bets a little bit that way. So before you go, I want to give you a magic Nate ball. I'm sure that 538 is going to be coming out with their own 538 balls. But you do such a good job of forecasting that I hope you can start selling your merch. And I only need lunch or dinner. That's fine. And an abacus for when you're really struggling to get things out. Nate Silver, it is such a dream and pleasure to have you here.


I've been given the okay. Our speaker today is currently one of the most controversial and talked about people in Orange County. Everywhere I have mentioned his name in the last month, a lively conversation is ensued. Professor Irwin Shimerinsky was named by Legal Affairs as one of the top legal thinkers in America. He's written four books on constitutional law. He was a prominent controversial figure in the contention of California Prop 209. He was concerned that it would repeal protections against women and minorities. He's frequently argued appellate cases before the United States Supreme Court and the United States Courts of Appeals. He has testified many times before congressional and state legislative committees. He has been chosen as the first dean of the new law school right here at UCI, coming from Duke University, but only after much controversy. He was hired, then fired, and then hired again. Yay! Yay! His commentaries were seen as polarizing. He's for us. He was rehired because UCI stated, our new law school will be founded on the bedrock principle of academic freedom. Would you love that? Yeah. Here to speak to us on the Supreme Court is one of the top thinkers in America. Please help me welcome Professor Irwin Shimerinsky. Thank you so much for the kind introduction and for having me here this morning. It's really an honor and a pleasure to be with you. My family moved here a little more than a month ago. We lived literally just down Los Trencos, which made this a perfect place for a 6'30 meeting. I should say, in light of the conversation, early this morning I have four children, three boys and a girl, and I've yet to decide which gender is more challenging to raise. I'm incredibly excited to be the founding dean of the new law school at the University of California at Irvine. I think it was the opportunity to create a very special and unique law school. My goal is that we will very soon, by every measure, bring the top law schools in the United States. But if we simply replicate what exists at other law schools, then we'll fail. There's not a need for another law school like all the others. Even wonderful places that I've taught, like Duke or the University of Southern California, don't need to be replicated. My vision for the school is I want to have the best law school in the United States for training future lawyers. Most law schools don't do a very good job of preparing law students for the practice of law. Could you imagine if medical schools trained doctors who had never seen patients? But most law students never have the opportunity to represent a client. I want to make sure that every student has a clinical experience where the student has the opportunity to represent a client under closed faculty supervision. I want to have the best skills courses that pair our students for the highest levels of practice in the cutting edge. And I want to instill in our students a commitment to public service and practicing the highest level of ethics and professionalism. In most law schools, law students hear about a need to perform pro bono work, a duty to help public service. What I was saying is most law students hear about a commitment, the importance of public service, only in the welcoming remarks of the dean on the first day of law school and the remarks of the graduation speaker commencement. We have to imbue that in our students and make it a key part of our curriculum throughout. Being part of the University of California at Irvine gives us the opportunity to be a part of an outstanding university and really make it possible for us to be one of the top law schools in the United States. But to be honest with you, before I go on to my topic for the morning, we will only succeed if this is a partnership with the community here in Orange County. We really need the support of the business, the legal community, groups like this. We'll need financial support, tuition and fees at a public university, only support small fraction of the cost. We'll need to be serving the community with our clinics and ideas on how to best serve the community. I want the community to be involved in our law school. Welcome your ideas as people who've served in law or business or part of the community, how we can do the very best job of creating a law school that will serve Orange County, being a local law school and a national law school at the same time. Having talked about that, now let me go to what I was asked to speak about here this morning, which is the United States Supreme Court. From 1994, when Harry Blackman retired until July 1st, 2005, when Sandra Day O'Connor announced her resignation, there was not a single vacancy on the United States Supreme Court. This is the second longest stretch in American history without a vacancy and the longest since early in the 19th century. Now, of course, there are two new justices, Chief Justice John Roberts and Associate Justice Samuel Alito. What does this mean? What does this mean for your rights? What does it mean for the country? Well, I want to identify for you four general themes that I see about the Supreme Court, where it is now and where it's likely to go. The first thing that I tell you, maybe something you haven't noticed, there's been a tremendous downsizing in the number of cases decided by the Supreme Court each year. This past term completed on June 26th. As I'm sure you know, the Supreme Court begins each year on the 1st of Monday, October and always finishes by the end of June. This year they decided 67 cases, a year before they decided 68 cases. What makes this so remarkable is that through most of the 20th century, the Supreme Court was deciding over 200 cases a year. As recently as the 1980s, the Supreme Court was deciding about 160 cases a year. In October term, 1988, the 1988, 1989 term, the Supreme Court decided 162 cases. Now it's down to 67 cases. I am confident that no other court in the country has had this kind of docket reduction. It has enormously important implications. More major legal issues are going a longer time before being settled. More conflicts among the lower courts are going a longer time before being resolved. There's no clear explanation as to why this is happening. I have my own pet theory. It used to be that each justice would have his or her law clerks review every petition for review. And there's now about 9,000 petitions for review each year. So there'd be nine different set of eyes reading each petition. Any one of whom could then recommend to that justice, the case should be heard. It takes four justices voting to grant to hear a case in order for the Supreme Court to take it. Something happened in the 1980s that was unprecedented. Some of the justices got together and said, rather than have each of their chambers read every petition, they would form a pool. And now eight of the justices participate in this pool. So one law clerk will read a petition for review for eight different justices. All but Justice John Paul Stevens participate in this. So to put it another way, now two law clerks read each petition for review. One for eight justices and one for Justice Stevens. So instead of having nine possible people say, take this case, there's only two. Now I don't know if this is cause and effect, but I can at least show you a correlation as the use of the cert pool went up, the grants went down. I don't think 67 cases is nearly enough. It's not that the justices are working less hard. What's happened is, is they take fewer cases, they write much longer opinions. And I can show you, if I had a PowerPoint, a perfect inverse correlation. As the number of decisions per year goes down, the length of the opinions is measured by words per opinion and pages per opinion goes up. Again, we could argue over what's cause and what's effect. Are they taking fewer cases because they wanna write longer opinions? Or as I would guess, are they writing longer opinions because they have fewer cases? A number of the major cases this year, including one involving the second amendment that we talked about earlier, were over 150 pages long. I have a constitutional law book that's used in many law schools around the country. In every July, I have to prepare an annual supplement to it based on the cases that have just been decided. There is no way to edit a 150 page opinion down an assignment manager for law students in one night without making a hash of it. So I have a new campaign and I'm asking legal community, you to join me in. I think we should impose word and page limits on Supreme Court opinions. The second theme that I'd identify, I think is key to your understanding of the current Supreme Court. This is the Anthony Kennedy Court. I know we call it the Roberts Court out of tradition and deference to the chief, John Roberts. But in practical reality, it's Anthony Kennedy who decides the most important cases. A year ago, the Supreme Court decided, as I said, in 68 cases, 24 of those 68 cases were resolved by a five to four margin. That's really remarkable. It means that more than a third of the case a year ago were decided five to four. Anthony Kennedy was in the majority in every single one of those five, four decisions. I don't know of any other year where there's a significant number of five, four cases where one justice was in the majority in literally every one of them. This year the court had only 14 five, four decisions. I don't think it's that the court found a new consensus among the justices. I just think there were fewer cases on the docket this year that were determined, defined by ideology. Justice Kennedy was in the majority more than any other justice in the five, four decisions, nine out of 14 times this year. They're not every one of them. I'm not very good at making predictions about things. Every April I predict that the Cubs are gonna win the World Series. I grew up in Chicago. In this is the year the Cubs are gonna win the World Series. But it's always safe when a case comes before the Supreme Court, it's likely to be determined by ideology to predict well it's gonna be a five, four decision and Justice Kennedy is gonna be in the majority. Think about the most important decisions from this term. The second amendment case. It's a case called District of Columbia versus Heller. 32 years ago the District of Columbia doubted a law that prohibited private possession ownership of handguns and also regulated long guns. There's long been a debate over the meaning of the second amendment. I can think of few constitutional issues where each side has stronger arguments where it's better matched between them. The second amendment is like so many constitutions ambiguous. It says a well-regulated militia being necessary to free state the right of the people to keep and bear arms shall not be infringed. Gun rights advocates wanna focus on the second half and they say it's about the right of the people to keep and bear arms. Gun control advocates say but look at the first half of the amendment. It says it's about purpose and militia service. That's the only reason people have a right to keep and bear arms is for service in the militia. Each side can point to the framers intent. Those who favor gun rights say that the framers wanted to protect the ability of people of guns, especially to be able to protect themselves. Gun control advocates say when James Madison drafted the second amendment, as he drafted all the first 10 amendments, he included a clause in the second amendment that gave an exemption from militia service to those who were conscientious objectors. That indicates what he was really concerned about in the second amendment was militia service. Now from 1791, when the second amendment was ratified until June 26th of 2008, no federal court, the Supreme Court had always taken the position that the second amendment is about a right to have guns only for purpose and militia service. But in a five to four decision, with Justice Kennedy as part of the majority of course, the Supreme Court on June 26th said the second amendment is about a right of individuals to have guns. And the court has opened the door now to challenges for better or worse, depending on your perspective, to every federal state or local law regulating guns, be it a criminal or administrative law. Another example, major case in this term, five, four with Justice Kennedy in the majority. Case called Beaumdine versus Bush, decided on June 12th. The issue here is, do those who are detained in Guantanamo have a right of access to federal courts, through what's called a writ of habeas corpus? As you know, a writ of habeas corpus came to us from English law. It's the right of a person who believes that he or she is impermissibly held to go to court. The Bush administration has taken the position since January of 2002, when the first individuals brought to Guantanamo, that they have no right of access to federal court. Congress passed a statute in October 2006, the Military Commission Act, that says that non-citizens, held as enemy combatants, shall not have access to federal court, be a writ of habeas corpus. Is that constitutional? On June 12th, the Supreme Court, five to four declared that unconstitutional. The Supreme Court said that the Constitution allows Congress to suspend habeas corpus, only in times of rebellion and invasion. The Supreme Court said, that isn't met here. The Court said, this is Congress suspending the writ of habeas corpus. Who wrote that opinion? Anthony Kennedy, joined by Justice Steven Sutter-Ginsberg and Breyer. Justice Kennedy very eloquently said, that even in a crisis, even in the context of the war on terror, it's important that the rule of law be followed, and we'd hear our constitution. Justice Scalia wrote a vehement dissent, which he said, this isn't an appropriate matter for the federal courts to get involved in, this matter should be left to the President in Congress. One more example, is the death penalty for the crime of child rape, cruel and unusual punishment, was decided on June 25th, five to four decision. Who wrote the opinion? Justice Kennedy joined here too by just Steven Sutter-Ginsberg and Breyer. Justice Kennedy said, we determine what's cruel and unusual punishment by looking to evolving standards of decency. He said, only six states in the country allow the death penalty for child rape. He said, no one's been executed for that crime for over 30 years. He said, that the death penalty should be reserved only for the intentional taking of life of another. The dissent strongly objected. They said, this isn't matter that's properly left to the political process, to legislatures to decide that the court shouldn't get involved. I think these were the three most important, certainly the three most publicized cases of last term, and you'll notice how much they fit the pattern. All were five, four, all at Justice Kennedy and the majority. The third theme that I identify is that overall, the Roberts Court is a conservative court. In fact, I think it's the most conservative Supreme Court we've had since the mid 1930s. There's an easy explanation for that. John Roberts and Samuel Leto have been everything that conservatives could have hoped for and liberals could have feared. John Roberts has now been on the court for three full years, Samuel Leto for two and a half years. There is virtually no case where John Roberts or Samuel Leto failed to vote in a conservative direction in a case defined by ideology. They're almost always together with Justice Antonin Scalia and Clarence Thomas. That, of course, leaves on the other side justices Stevens, Sutter, Ginsburg, and Breyer. That's what makes Anthony Kennedy the swing justice. But he doesn't swing that much. He's more with the conservatives than with the liberals. After all, he was appointed by President Ronald Reagan in 1987. He's a lifelong Republican, and though at times he disappoints, even bitterly disappoints conservatives, overall, he's more conservative than liberal. What does it mean to say that the Roberts Court is conservative? I think overall, if not every case fits this pattern, there are two themes that define what it means that it's a conservative court. First, this is a court that will generally side with the government rather than with those who are serving individual liberties and civil rights. This is a court that's much more likely to side with the government when it comes to regulation of abortion than the prior Supreme Court's were. This is a court much more likely to side with the government in terms of allowing religious symbols on government property or aid to parochial schools. Let me give you an example of a case from a year ago that I think typifies a court that really wants to side with the government in the claims of individual liberties. There's a case coming out of Alaska called Morse versus Frederick. The Olympic torch was going through Juneau, Alaska and a school decided to release its students to stand on the sidewalk to watch it come through. A student got together with some friends and he unfurled a banner that said, quote, bong hits for Jesus. I'll be honest with you, I have no idea what this means, but the principal thought that it was a pro-drug message. So the principal confiscated the banner and suspended the student from school. The student sued. The Supreme Court five to four came down on the side of the principal. Chief Justice Roberts wrote for the court, Jessica Leah, Kennedy, Thomas, and Alito joined. Chief Justice Roberts said, this was an official school event, even though it was on a public sidewalk. Schools have an important interest in discouraging illegal drug use. The principal could reasonably interpret it as encouraging illegal drug use. I think the court sent a clear message that it wants to defer to school authorities and letting them decide what speech is appropriate within the school. The other thing that I think it means that we have a conservative Supreme Court is the court that's gonna generally favor business over consumers and employees. Give you an example of a case again from a year ago they got a good deal of media attention and it's a real effect on people's lives. In this case called Lead Better versus Goodyear Tire and Rubber. Lily Lead Better worked for Goodyear for 19 years. Almost all that time she was in a managerial position as an area supervisor. Near the end of the time that she worked there she realized she was getting paid a lot less than male employees who had been there just as long with the same performance evaluations who were performing the same job duties. So she sued under federal civil rights law. Very important federal statute, Title VII of the 1964 Civil Rights Act prohibits discrimination based on gender, race and religion. A jury found in her favor. The jury concluded she was paid about a third less than comparable male employees. But the issue before the Supreme Court was seemingly a technical one but an incredibly important one. When does the statute of limitations begin to run for a paid discrimination claim? Title VII says that a person he has to file a discrimination claim with the Equal Employment Opportunity Commission within 180 days of the discriminatory act. Was the discriminatory act when her pay was set? Well in which case all of her claims are barred except for any pay that have been set in the last six months of working there. Or is each additional paycheck a separate discriminatory act so that then the last paycheck was a discriminatory act that reflected all of the pay discrimination she suffered and she could still sue. The Supreme Court, five to four ruled that the discrimination, statute of limitations for it comes at the time the pay is set. So any claim for pay discrimination as we brought within 180 days of the time the pay is actually set by the employer. Justice Alito wrote for the court joined by the other four conservative justices, Chief Justice Roberts, Justice Scalia, Justice Kennedy and Justice Thomas. Justice Alito said he believes that it requires a specific discrete discriminatory act. He said each additional paycheck may be evidence of discrimination but isn't a discriminatory act. Here's why this matters so much. Most people, most workplaces don't know what others there are getting paid. Justice Ginsburg and her dissent pointed out that a third of all workers in the private sector are in workplaces where by rule they're prohibited from discussing their salaries with others. And even where there's not such a rule there's often a norm of not discussing pay. I taught at the University of Southern California for 21 years. I never knew what anyone else on the faculty got paid. I taught at Duke the last four years. I knew what my wife who was on the faculty got paid but I didn't know anybody else got paid. That makes it almost impossible to bring paid discrimination claims within 180 days of the time that somebody's pay is set. This is a huge victory for business and employment discrimination cases but a huge loss for consumers. So I think that's what it means that it's a conservative court but again I go back to, it really comes down in these kinds of cases to Anthony Kennedy. Notice in both the cases I just mentioned there were five, four with Justice Kennedy and the majority. At the very least means that for lawyers who are appearing before the justices, lawyers who are writing briefs to the justices there's often a sense of arguing to an audience of one. I've argued several times to the Supreme Court. I've written many briefs to the court. I wrote a brief last year in the Second Amendment case. I'll tell you that my brief was a shameless attempt to pander to Justice Kennedy. If I could have put Justice Kennedy's picture on the front of my brief I would have done so. My brief was not unique among those filed in the court in this case. This case is not unique among those on the docket. This is the Anthony Kennedy Court and because overall he's more conservative than liberal we have a conservative court right now. The fourth and final theme I'd identify and then save the rest of my time for your questions is to look to the future. This after all is an election year. What's the November 2008 presidential election likely to mean for the future of the Supreme Court? And what I'm really asking there is what's it gonna mean for the future of all of our rights? Bottom line, this election is gonna determine whether the Supreme Court in the short term becomes more politically conservative or stays ideologically where it is now. It is very unlikely that this election will cause the Supreme Court to become more liberal in the next five or 10 years. There's an easy explanation for this. Think about where the vacancies are likely to come on the Supreme Court between January 20th, 2009 and January 20th, 2013 between the two inaugurations. Well, John Paul Stevens turned 88 years old on April 21st. He's in good health but it doesn't seem that likely he'll still be on the court at age 93 in the year 2013. Ruth Bader Ginsburg is about to turn 75. She's in good health but she's very frail in appearance which may be why there's always rumors she's considering stepping down. There's widely circulated speculation that David Souter wants to retire and go home to New Hampshire. Now look at the other side of the ideological aisle. John Roberts turned 54 in January of this year. That means if he stays on the Supreme Court until he's 88, the current age of Justice John Paul Stevens, John Roberts will be Chief Justice until the year 2042. I've talked to several people today who are thinking of going to law school. That means for almost all of your career as lawyers and all of the rest of my career, John Roberts will be Chief Justice. Neither Clarence Thomas nor Samuel Alito has yet to celebrate a 60th birthday. Antonin Scalia turned 72 earlier this year. Anthony Kenney turned 72 this month. I think the best predictor of a long lifespan is being confirmed for a seat on the Supreme Court. It's not likely that any of these five justices is going to be leaving during the next presidential administration, maybe not even in the next 10 years. So if it is a President John McCain replacing Justice Stevens, Interjustice Ginsburg, Interjustice Souter, then likely to have a much more conservative court. He's going to replace these justices with much more conservative individuals. He says he wants to appoint justices like John Roberts and Samuel Alito. No longer will it be the Kennedy Court, no longer will Anthony Kennedy be the swing justice. On the other hand, if it's President Barack Obama replacing Justice Stevens, Interjustice Ginsburg, Interjustice Souter, he's likely to do so with individuals, basically the same ideology. So the court will stay ideologically the same. That's why as I say, I think this election will mean either that the court becomes much more conservative or the court stays where it is right now. So I guess the conclusion to this in terms of what the Supreme Court is now about, where it's likely to go in the future, is that if you are politically conservative, this is a court to rejoice over. And if you're politically liberal, you should be glad the court's deciding only about 67 cases a year. I promised I'd save about the last 10, 15 minutes for questions, and I'm glad to take questions about anything with regard to the Supreme Court. I'm also delighted to talk about the new law school, my vision and where we are in trying to get there. Please. And I know there's microphones, and I'm supposed to wait for the microphone for purposes of the videotape. In the last eight years, definitely, there's been a tremendous influence from the executive branch in deciding the court structure and all that. And why is it in the first place that the president who may or may not be qualified has so much influence in deciding the judge, the personality of the person who gets picked in the Supreme Court? Why is that in the first place? It's a really good question. The framers of the Constitution had a simple but very elegant vision. They wanted to make sure that for almost everything important, two branches of government were involved. So to adopt a law generally requires both Congress and the president being involved. To enforce a law requires that the executive branch be involved but also the judiciary. To issue a warrant for someone's arrest or search warrant or to convict a person requires involvement of both the executive branch and the judiciary. The framers had the same vision with regard to the Supreme Court and the federal judiciary. The president nominates, but the Senate confirms. When the president and the Senate are of the same political party, rarely are presidential picks for the Supreme Court rejected. When the president and the Senate are of different political parties, quite often presidential picks are rejected. Robert Bork in 1987, Clement Hainsworth, Harold Carswell in 1969 and 1970, John Parker in 1931. In fact, about one fourth of all presidential picks for the Supreme Court in the 19th century were rejected by the Senate. But almost every instance, it was the president and the Senate being of different political parties. Because if the president and the Senate are the same political party, then the Senate can only block a Supreme Court nomination by a filibuster, something rarely done with regard to judicial nominations. So the answer to your question is, it was the design of the framers. And presidents vary in terms of how much they care about the ideology of the judiciary. Dwight Eisenhower picked a Democrat, William Brennan for the Supreme Court. Some presidents are very much motivated by ideology in who they pick. Franklin Roosevelt, the current president, George W. Bush, where presidents really cared about ideology. So I think that the answer to the question is impart the constitution structure and impart how much the president wants to pick judges of a particular philosophy. Erwin, if you're training the potentially a future Supreme Court justice here at Irvine, what do you want them to experience or learn over the next few years that will help them? That's a great question. Justice, you know, on my wall, if you come, when you come visit me, there's a wonderful poster, it's an lithograph that says, justice, justice thou shalt pursue, which is a quote from the Bible. And I think that ultimately what ask our judges to do is to do justice. And what I want our law students to think about is, what does justice mean? And how do we best achieve it? I obviously want to give our law students all of the skills that they can be terrific lawyers, terrific judges, maybe even Supreme Court justice someday. But I want them to remember that what they're there to do is to do justice. I hope we can instill in them compassion because I think justice is meaningless unless it's temperate by mercy. But I also want them to have a real appreciation for the rule of law. And I'll go back to the discussion we had at our tables earlier this morning. The freedoms that we have in this country are precious, but they're not just because they're on parchment under glass. We have those freedoms because there's courts there to enforce them. I used to, and I haven't done in a while, for the first day of constitutional law, have my students read a copy of the United States Constitution and a copy of the Stalin era Soviet Constitution. And maybe in light of the discussions we had at our table this morning, you might be surprised to know that the Stalin era Soviet Constitution had a far more elaborate statement of rights than the United States Constitution did. And then I would have my students read a description of life in the Gulags by Solzhenitsyn and ask, how could it be that a country with such elaborate statements of rights would have this kind of oppression? And of course the answer was, there were no courts there to enforce the Constitution. No court could strike down what the government was doing. What makes all the rights we talked at the tables this morning so meaningful is that there are judges there to enforce them. And so I want my students, if they ever become judges, to realize that incredibly solid and found obligation they have to enforce the Constitution and ultimately to do justice. Go ahead. At the moment, I'm not sure of two questions. First one, what kind of mechanisms are in place to have a judge of the same Supreme Court to say maybe up in his 90s and really isn't quite with it anymore to remove him from the court. And if there are none, do you believe that there's a certain age or a time or a mechanism to have a Supreme Court judge leave the court? And again, a great question. The only mechanism for removing any federal judge is impeachment. The framers of the Constitution in Article III say the justices of the Supreme Court and of the lower federal courts will have their positions for life, assuming good behavior, which means they can only be formally removed by impeachment and that takes a majority vote of the House and two thirds vote of the Senate. There have been problems through history, not so much at the Supreme Court level, but occasionally with federal court judges, trial judges, appellate judges who lose their ability to perform the job who aren't mentally competent but don't wanna leave the bench and it's a really serious problem. Congress passed a statute in 1980 which allows a panel of judges within each circuit to suspend the caseload of a judge who's no longer competent to hear cases that doesn't apply to the Supreme Court though. It applies only for the lower federal court judges. It's questionable whether that's constitutional in light of what I just told you. I think the only thing we have to hope for with regard to the Supreme Court is God forbid that should ever happen. The other justices will go to that justice and say, it's time. I've said to my wife that if there comes the point where I'm just not able to perform as a professor in the classroom and I don't realize it, you need to tell me it's time. And I think the same thing with regard to judges. It's hard to do though. There was a judge here in Los Angeles who's no longer mentally functional and should not have been on the bench. And I talked to some of the other judges who I knew about it and they just said it's so hard to go to him and say it's just time to leave. But that's what we require in the Supreme Court. There is one instance in American history that we know of where the justices actually went to a colleague and this was in the 19th century and said it's time to step down. But that's the mechanism. Now let's do the latter part of your question. Do I believe that there should be mandatory retirement age? No, I don't believe in mandatory retirement age. John Paul Stevens 88 and he did his good a job forming the function of justice as any of the younger justices. And any number is arbitrary. There are people in their 60s or younger who aren't functional and there are people who are in 90s who should still be performing those functions. So I would not favor any mandatory retirement age. And I've got to tell you, every additional birthday I'm even more against mandatory retirement ages. Please. Yes, thank you. Let me take you back to Bong hits for Jesus. Sure. All right, just as an example, as I listened to the exam, you know, all these issues before the court I have a tremendous emotional charge to them, the ones. And we live in a ideological media culture. So where does a citizen go to... Oh, and then on the extreme is like the Supreme Court spending months and months analyzing and reading and all. And they, where you're demonstrating is they still may be driven by their ideology. So where can we find intelligent discussion of these issues that we need policies on in our culture? That too is a great question. Let me start with the premise and then go to the question. These are issues that are defined by ideology. And we've decided and I think it's a good choice to society to leave our court to resolve some of them. Not all questions are resolved by the courts. The courts have nothing to deciding whether we're gonna go to war or not or how much money we're gonna spend on the war on terrorism. But there's a set of questions that we decide we want the courts to resolve. And there's no clear answers to them. And inevitably how the justices decide is a reflection of their views. Take the second amendment. For reasons I don't quite understand, conservatives have more taken the gun rights position. Liberals have taken more of the gun control position. Our current court is five, four more conservative than we're liberal. They came down five, four on the gun control, the gun rights side rather than the gun control side. That reflects who's on the Supreme Court. That's why presidential elections and presidential nominations are so important. Now to your specific question, where can you get good reason discussion? There's more accessibility to that now thanks to the internet than ever before. I think that some of the blogs that I think, I'm not a blog reader, but there's some of the blogs, Jack Balkan's blog out of Yale Law School, Balkanization, is very sophisticated discussion of legal issues. Eugene Volox out of UCLA, The Voloc Conspiracy, and Balkan's more liberal, Voloc, more conservative, are very good discussions. I'm very proud that once a week, I'm part of a radio show that goes out of Orange County but is nationally syndicated, The Hugh Hewitt Show, where I do a debate with John Eastman, the Dean of Chapman Law School, and John and I take opposite views on most things. But we always discuss what's going on in the court, and to me what's most important about it is I think we show that people can be pretty much in disagreement, but still discuss things civilly and try to really do in-depth discussions.  But overall, my inclusion, I think it's easier for people to be informed about the Supreme Court, about the legal system government now than ever before. There's just so much more information I have to sort through to get there. Yes. Regarding discussions, I just came back from the Aspen Institute, the Aspen Ideas Festival, and got the great pleasure of meeting Sandra Day O'Connor, which was wonderful. We miss her on the court, at least I did. But anyway, one of the discussions that was very interested among the judges was about how the judges are chosen. And also, one of the things that I found interesting and I would like for you to comment on it was that they were talking about the Senate hearings for the Supreme Court judges. And they actually felt that it wasn't appropriate because some of them, not all of them, because it politicizes the appointments more. I very much disagree with the view that it too politicizes it. And let me explain why. Inevitably, presidents try to pick justices of their ideology. Some, as I say, are more concerned about ideology, some less, but every president is going to pick justices who have his or her views. If the president can look to ideology, then why can't the Senate look to ideology? I know that those who are nominated would like to have easy confirmation hearings and so they say there should be no Senate inquiry into their views. But these are positions as we've been talking about for life. These are positions where inevitably how the person is going to vote is going to determine the outcome. Let me go back to 1987 when Robert Bork was nominated for the United States Supreme Court. Had Robert Bork been confirmed by the Senate, there is no doubt none that Roe v. Wade would have been overruled in 1992. The Supreme Court, in Planned Parenthood v. Casey, five to four reaffirmed the right to abortion with Justice Kennedy and the majority. Now you may wish that the court had come out the other way and that Bork had been confirmed, but the fact that the Senate rejected Robert Bork meant that Anthony Kennedy was picked and that meant that the court affirmed rather than overruled Roe v. Wade. I think that's what the Senate has to do, is look to the ideology and views of the justice. Any important constitutional issue is going to come down to who's the justice? What are his or her life experiences? And so that's why I think the President and the Senate are completely justified in looking at it. Now I don't think the current process is working very well, but I don't think the solution is to say ignore ideology, because until the President's ignore ideology, I don't think the Senate can ignore ideology either. Good time. All right, Dean Schermaniske, my name is Frederick Fox. I'm a graduate of UCI's Paralegal School. You brought up the issue of the coming election, and I have written a legal memorandum which nobody seems to want to touch with a 10-foot pole, and I'll quote directly from the Constitution on the main issue. No person who is not a natural-born citizen, comma, or citizen of the United States, comma, at the time of the adoption of the Constitution is eligible for the office of President. Now, the 14th Amendment notwithstanding, my question is, does Senator Barack Obama is he eligible to run for the office of President or does a Constitution need to be amended? It's interesting you put it that way because usually the concern is raised over John McCain because he was born in Panama for a father who was serving in the military. I've looked very carefully at this question. I see that I'm out of time, so I'm going to answer briefly. I believe that both John McCain and Barack Obama are eligible to be elected and serve as President because both were United States citizens at the moment that they were born. I believe for McCain, for example, he was born to American citizen parents. His father was serving in Panama in the military, and that's sufficient. I believe Barack Obama and his parents were United States citizens, so he is a United States citizen. He has a United States passport. He's deemed by the United States government to be a citizen, so all there that is required. So I believe that both are eligible to serve as President of the United States. I made, as my final exam question this past semester, I did it in terms of John McCain. Who would be able to bring a lawsuit to court to raise this issue? To put it in technical legal language, who would have standing? My own conclusion is no one would have standing under current law to bring the challenge. So it becomes a really interesting question, but it's not one that's likely to make any practical difference because I think that no one could ever get the court to rule on the issue. Let me just stop by saying thank you so much for having me. I hope you'll have me back again sometime in the future.