 Aloha and welcome back to Talk Story with John Wahee. And my very special guest, the Senator, State Senator from the Windward side, Jared Kail Kahole. I got it. It's a great name, by the way. And it's good to have you here. And Senator, it's my pleasure. You represent the Windward side of Oahu. Tell us a little bit about your district, maybe a little bit about your how you, you know, you came to be, how you became the Senator for that area. Sure. Thank you. Yeah, it's Kail Kahole. And it took me a while to learn myself, but it's really a privilege to be on with you, Governor. I think part of what, part of the reason why I'm here is because of you, because I grew up watching a Hawaiian on TV as the governor. I grew up in Kaneohe. Actually, I started in Kailua. And when I was little, people in Kailua will remember the flood that took place on New Year's Eve, I think it was 1987. And so we ended up getting washed out over there. And our families from Kaneohe and not too much, not too long after that, we moved back. And I grew up on our Ohana land and our genealogy places us in Kaneohe where I grew up. 600 years. I remember that flood. That was my disaster as governor. Oh, really? That occurred when I was governor. Right. And I remember going on visiting the sites and, you know, going out there and trying to, I don't know what, trying to look like I was, you know, really doing something about it. But anyway, it was, it was fun. And one of the more interesting things about that whole disaster, which was tragic and people did get hurt, was the way I ran into Frank Fawcett. And then we started to try and I would do each other to show who was helping the people more. But anyway, you got to be senator. You grew up in the district. And my understanding is your district runs from Kailua High School to, why don't you tell us? Yeah, so if you follow the ko'olau, the Kailua side boundary is right around Kyoglu Drive, Kailua High School area, Olamana. And then I run right along the ko'olau to Valley of the Temples. And then it's sort of like a triangle. Then it cuts across the bay to the marine base and Aikahi. So I have all of Kaneohe and most of the Maoka neighborhoods of Kailua and Kauainui. So it's an area I know Yeah, you grew up in it and you know it well. We were going to, actually my intention and originally for this program was to talk to you about Aia and the fish pond there and the good work that I know you have put a lot of time and effort in the restoration. And I was very interested in just briefly in what you were doing and whether or not someday we can see a melting of traditional Hawaiian culture and modern technology and the production and the making these fish ponds productivity. Yeah, so actually the thank you for that, the credit for the work that has been done at Aia, especially at the fish pond, really needs to go to the practitioners that are over there in the community, way more so than anything I've done. The folks at Paipae Ohe Aia, especially Hile Kovelo and the original founding members of that Hui over there, have been at this for decades. And it's been a real guerrilla struggle for a long time. And more recently, they really have been able to make significant progress at the pond. If you drive along Cam Highway through Kaneohe and you pass Windward Mall and you drive down to the past the pond, you will actually see the pond. Whereas five years ago, it was just mangrove forest, 60 feet tall on both sides. They've done really, really significant work. And so part of the way forward is coordinating with the folks at the pond in Aia. There are low Iqalo, just Malka, a big area of Aia that they're slowly converting back into taro cultivation. And so the future is trying to figure out ways to maintain those areas, keep them in food production, maximize their food production and then deal with all of these modern day challenges like sediment and chemical runoff and climate change. What rising sea levels are going to do to the ponds? How they're going to have to adapt? And how they can be leveraged and mobilized to create abundance again are some of the real significant issues. And they've gotten national and international notoriety. Senator Schatz worked with us, it was primarily his leadership to get a federal NOAA designation for that whole Ahupua'a as an estuary research reserve. And so they've unlocked a lot of resources and funding from the federal government to do things like climate adaptation and resiliency work. So it's exciting stuff over there. It's exciting to me because I told people this for a long time. People sort of dismiss the traditional ways of doing things as something from the past. But when you do something for a thousand years, you get better and better at. So the Hawaiians were actually very scientific in a sense. But what's exciting is taking that science and dealing with the science of today in solving things like climate change and the rest. And so I know you've got a really exciting project there. And I would love to see it become a model for other fishponds in the state of Hawaii as to what can be done. I'm going to jump subjects, Senator, because I know that you're the vice chairman of the Senate Judiciary Committee. And yesterday, I was reading my newspaper and I saw this, I guess it was a guest editorial. And it read that the judiciary should reflect our diversity. And it was written by, I think, three or four people who are thoughtful people, people who write books and think about things like this. And I guess this is already, I know that this is all related to the fact that, again, tomorrow you will be dealing with the nomination that Governor Igay set down for a new judge for the Intermediate Court of Appeals. Why don't you tell us what's going on and with regard to the actual hearing itself? And then I want to follow up with some questions I had based on this article and a whole bunch of actually emails that I got overnight and text. Yeah, thank you for that. So the Senate's role constitutionally, as you know, is to confirm judges that are appointed by either the governor or the court to serve. There's a whole process that's intended to ensure transparency in the selection and to ensure that the selection of judges is merit-based, especially these appeals court judge positions because they are unelected positions of pretty significant power and influence, especially as it relates to the shaping of the law when a case is decided and the parties don't agree with the outcome they appeal to the Intermediate Court of Appeals, which is where this judicial nominee will serve for 10 years if confirmed by the Senate and be in a position to make a lot of decisions on things like water rights, on ceded lands, on Mauna Kea, on criminal justice. You know, just about anything that's litigated if it goes on appeal will go before this court and the opinions that they write and the rulings that they make have really significant impact. And so yeah, I think it is important that in the justice system, as we've seen from last year's, you know, movement and everything that happened around, you know, after the George Floyd killing, we are having this national moment of reflection on diversity and on how the system, you know, needs to be representative of the people that participate in it. Well, I tell you, what is an interesting, there's an interesting paragraph here in this, in this letter or guest editorial, and they say they're not questioning the nominee's integrity or whether he's a good attorney, but they want to need to focus on the need for diversity. And apparently, I didn't realize this, but the Supreme Court, both the Supreme Court and the Intermediate Court of Appeals, doesn't have a member of that's Native Hawaiian or Filipino or African American or anything other than Caucasian or I guess maybe Japanese. And what the point of this article was, assuming that they were people, well, what they're saying is that diversity is important, that that shouldn't be the case. And what would be the justification for that? I mean, you know, most people like to think that judges are colorblind, or at least, you know, just prone to follow the law, but does diversity play a part in how people view the court and how decisions are made? Is that an important criteria? Yeah, absolutely. As this ambulance goes by my house. And here's why, you know, we have a very unique culture and experience in Hawaii. And as a result, as a direct result, we have a very unique legal history. And you know this very well, you know, the public trust doctrine, which is a seminal part of our local society over here, the embedded right for people to have free access to the beach, free access to the mountains for hiking and recreation and gathering. Those rights exist because we had judges who understood the importance of those rights in local culture and the historical execution of those rights before we were a state, before we were a territory, before we were, you know, a formalized kingdom. These were rights that existed, you know, all the way to the ancient time. And it's a recognition of those practices that led to these rights being encapsulated in the law. And so as much as you want to say the law is colorblind, I think it does take folks who have a especially pertinent understanding and appreciation for Hawaii and Hawaii's history and Hawaii's culture to understand why we're a little different and the way our system works. This is an island as opposed to a continent. You know, I, that's right. As you, as you were talking about that, my mind's eye, I couldn't help but remember Chief Justice Richardson, you know, and, and those, those of us, you and myself and others who had the privilege of attending the Richardson School of Law know what the trailblazer he was. I mean, prior to the Chief Justice taking a stand on issues like water rights, like beaches, and the rest, which he used Hawaiian law precedent. We, you know, there's so much of what we treasure about Hawaii today that came from Chief Justice Richardson and his sensitivity to island culture in, in just the environmental culture of the night. I think, I think, and Governor, it's not only it's it's certainly it was him, but it wasn't only him, you know, Hawaii, Hawaii revised statutes, Chapter one, Section one says, among other things, that we're applicable, we will apply Hawaiian judicial precedent, right? We will apply the precedent and the legal history that existed before we became a state. And that's again, that's why you have free access to the beach. You know, on the East Coast, in a lot of places, I know a lot of local people don't understand this, but I lived in New York for a couple of years. Some places you got to pay. Yeah, you got to go to the beach. And, and some places you can't even if you wanted to pay, you couldn't get on the beach. And so, you know, I guess what what it is, is that to me, the Chief Justice represented a sensitivity to those kinds of rulings that may may not have been appreciated when judges were mainly from the mainland, during the territorial days, and, well, mainly appointed from the authorities on the main, we are going to take a short one minute break and come back. And the question though is, okay, diversity is important. But what about merit? I mean, what about somebody does that where does that play in all of this? So be with us, folks, we're coming right back. We got a short break. Welcome back to Talk Story with John Whitehead and our very interesting guests from the Windward side, the Senator Keohokalole. Keohokalole. You got it. Yeah. Yeah. I should get it. I'm Hawaiian. And then I got a tongue twisted. It reminds me of when people were calling me Wahee, Wahee. And then I said, if you're Chinese, that's a good name. And I'm, you know, I'll take it. But anyway, okay, we're talking about the judiciary. Now, when I was in office, I left office, we were doing a lot to try to create some, I mean, that was the public policy really of the state. And so we had, for example, on the Supreme Court, we went under burns and Ariyoshi, there was Richardson, Chief Justice Richardson, there was Justice Menor, there was, you know, Justice Kobayashi, it was a mix group. And with doing my time, I had Justice Klein, Levinson, we even had a nice New York Jewish boy or whatever he was from, but he was a great justice and a number. So there was an attempt to do that. And in fact, one of the areas which was very difficult to deal with about diversity was finding women judges, making the bar reflect the population more. And the reason for that was the fact that there weren't that many women lawyers to start with. So they could never quite have the experience on their resumes that somebody, you know, who had been to law school 10 years earlier could do. The point of that little tirade is not only, I'm asking, is not only does ethnic diversity matter, but what about male, female, what about that kind of diversity, you know, reflecting the population? Is that important? You know, I'm trying to figure out a way to ace this question because my wife will watch the show after. She'll have expectations about my response, but I think it does. You know, we just think about things, people have different perspectives. And I think it's very important to appreciate that. You know, in my own family, we call it Laulau politics because I grew up making Laulau in our family's garage. And we were T-leaf, we're a T-leaf Ohana. We tie string, so not the old old style, but we are not a foil Laulau Ohana. And, and certain people in the family, if we bring foil Laulau to the Luau, we'll sneer and not touch that stuff. And sell it to my house. But, but if, if, you know, if that's not your family tradition, I don't know very much about pounding mochi. So I'm going to defer to the Japanese families in Kaneohe that I know that do that every year as a tradition, why they do it, you know, what it means to them. It's just really difficult to assume that you understand, you know, unless it's actually a part of who you are and a part of your history. And so all those perspectives matter, the perspectives of people who got here five years ago matter because they're here. Just the same as the perspectives of people whose families got here 110 years ago, whose grandparents and great-grandparents made it through the plantations. You know, I was just listening to a song from the 80s called Light Toodle on YouTube randomly. And it's a story about the plantation lunas on their horses kicking the sugar cane workers in the head for carrying the sugar cane too slow. And it's sung in Hawaiian. I just thought of all of the context around that song. Hawaiian's singing about Asian sugar cane workers being really horribly treated by probably Portuguese plantation lunas. And, and that's all in a song. It's such a complex, it's such a complex social commentary from 40 years ago that nobody listens to anymore because it's not on the radio. And that's the kind of stuff I'm talking about. Well, I guess, and what we're saying as far as diversity is concerned today, though, is that diversity, that cross-section of Hawaii's population is not reflected in the judiciary for whatever reason. And some people think it's not there. Ethnically, even I guess, whether there's enough females or the rest, I, you know, one of the things that Chief Justice Richardson pointed out, which I think is important, and as well as others, is the idea that because we are an island state, and because resources are finite on island, and that people like Native Hawaiians who lived here for a thousand years got to learn how to live with, with these finite resources, that whole experience is a little different than people on the continent. If you're not happy with your neighbor in New York, you can go West young there. You can go someplace else. There's a lot of space. And so therefore the laws that were applied on a continent are based on abundance. And the laws that are applied on an island are about conservation and simple things like that. So it's not only political experiences or climate experiences. It's an understanding of the environment of where we are. And I, you know, I can see where this is all going. But the bottom line, Senator, is if you, no matter what as important as diversity may be, don't we want judges who actually know what they're doing? I mean, absolutely. And so, you know, these are interesting. That's an interesting perspective you brought up, which I might ask about in the hearing tomorrow. But that is the balance is we need to make sure there are people on these courts that can do the job. The Intermediate Court of Appeals right now is in a massive backlog. I believe it's multiple year waits for your appeals to be considered and ruled on. And so we need people that can get in there and do the job right away. And we also need to make sure that there are people that are properly credentialed, but who command the respect of the legal community. Because like we just talked about, these are unelected positions. If people don't like how I perform as a Senator for Kaneohe, they can just run against me. And then everybody can decide. Judges get 10 year appointments. So by year two, we've changed our mind on the person. Well, good luck. You got another eight more years before you get a chance to reconsider. And people's lives are at stake with these cases. And a lot of these, especially on the appeals court, you're looking for errors that happened when the case went to trial. So it's a lot of procedure and it's a specialty area of the law, as far as I'm concerned. So I think you would agree with me then that the ability to actually perform is ultimately what you're looking for. I mean diversity is all things being equal. We want to make it as diverse as possible. But now we also need to look at the credentials. The reason why I bring this up is in this guest editorial, and I found this really compelling. And that is that the list that the governor was given to select a nominee from included people who seemed to be more qualified than the person that was nominated, not only in terms of diversification, but in terms of actual legal practices. And so the point I'm getting is he says they say that the nominee served five circuit court cases and eight appellate cases. So he he did five circuit courts and eight appellate. Whereas a Hawaiian female attorney, Karen Griffin, served in 192 circuit court and 176 appellate cases. The other the next female who happened to be native Hawaiian served in 135 cases and 65 appellate. And the last had 32 circuit and 311 appellate. I mean how do you balance this? I mean what made one person, I mean it seemed to me like at least the people that were writing this are making a case that the best person might not have been selected in spite of diversity. So you know I think just to start off, I think it's a little bit concerning if we start saying these are the solid benchmarks. These are the quotas of people of Filipino descent that should be on the court. These are the, this is exactly how much minimum years of active service you need because it is nuanced. I do probate work, I do trust in the state work as an attorney. I don't go to court. I just hardly ever go to court and when I do it's not related to trial. Does that mean in, so I'm very young in my legal career. I'm in no way qualified to serve on a court of appeals but in 30 years, like the partner that I work with, 35, 40 years of experience, she knows so many things just off the top of her head that she's gathered through those decades of practice that I think she would be really, really good at the job. And so years of experience versus quality of experience versus the type of actual work you're doing and whether you know how to apply the law in a fair and efficient way and get through that giant intermediate court backlog, I think all that plays into it. I just want to say though, up until this point and this conversation that started just recently, there wasn't any data being collected on what the composition of the court was and whether it was being facilitated, whether the appointments were being facilitated equitably. And so here's the reason why I think that that's concerning and I'd like to talk about it or get down to it in the hearing tomorrow is the last native Hawaiian woman appeals court judge was Kekauluhi in 1845. Wow, that was 176 years ago. So for someone to come to me and say, Senator, you know, I guess we just didn't have a qualified female Hawaiian to serve in that position for the last 176 years. I'm sorry, I don't know that I'm really going to buy that argument, right? There must be some broader issue at play here that's allowing that reality to persist. And so that's something that I think in the Senate we are uniquely and perhaps exclusively held with the responsibility to take into account. It doesn't appear to me that at any other step of the process, folks are allowed or really even interested in taking that reality into account. And that's something that we're going to have to weigh along with qualifications and experience and diversity. Well, I thought you Senator, I appreciate that because you just pointed out something that was really important. And that is that this is not only about about changing the demographics. It is about doing it in a way that not only reflects the population, but that builds a stronger court. And if it seemed to me that if the Senate if the Senate has a role at all, it ought to be about the social policy of the judicial. And so I wish you and your colleagues the very best. And I know that you will do what is right for the people of Hawaii. So thank you so much for thank you so much for agreeing to join us and good wishes and good luck. Thank you Governor. It's an honor to be with you. This is my best attempt at an impersonation of you. So I appreciate the time and thank you for having me on. Aloha. Aloha everybody. We'll see you in two weeks.