 Sasaki, you're watching Life in the Law, which airs Wednesdays from 1 to 1.30 at Think Tech, Hawaii. Today is a very exciting day in the law because our president nominated his Supreme Court candidate and we are very, very lucky indeed to have Michael Kozak, eminent legal scholar, eminent Honolulu legal scholar with us, to discuss the ramifications of this appointment and how do you think it's going to go? Well, hello, Marianne. Thank you for having me on the show. Yes, Neil Gorsuch was nominated by President Trump. He's still subject to confirmation. It should be interesting. He's an interesting guy with an interesting past, some interesting parents, and he's been involved on some pretty newsworthy cases as of recent. Yes, as your diligent research has showed, which we're going to talk about, which is great. But first we'll talk a little bit about Neil Gorsuch's background with Gorsuch. That's how I pronounce it. I believe that's correct. So Mr. Gorsuch went to Columbia undergrad in Harvard Law School and he's got a doctorate from Oxford. He was a judge unanimously voted onto the 10th Circuit. I don't know what district, I don't know, I don't know about his lower court history. He's apparently very well liked, but he's very much in the mold of Antonin Scalia and it's my opinion that the entire judicial appointment process has been tortured by the fact that the Senate would not entertain Merrick Garland when it was President Obama's rightful pick. So I say there's a hint of illegitimacy with respect to this appointment, but we'll see how the Senate's going to deal with it. Do you think the Advising Consent portion, the hearings, the Senate hearings are going to drag on? Well, it'll be interesting. There was some friction obviously between the transition from Obama to Trump and as you pointed out the, I guess, delay or, well, delay is probably the best way to put it with the prior nomination, but it is the Supreme Court and as far as I may disagree or agree with what they have to say, I think the process in and of itself is inherently good. I don't have any reason to doubt that the Advising Consent will occur in an impartial way. Oh, I think it's going to be a very political fight. I mean, I think it's going to be a very political fight and I think that the Senate is 58 to 62 now and I think that the Democrats are going to filibuster and I think the Republicans are going to get rid of the filibuster. I don't know, but I just think how after the Bush v. Gore could you think that the Supreme Court is an inherently honest body? Maybe it's wishful thinking. That was the most exciting thing that happened in my administrative law class in law school. It was exciting. It was fascinating. Yeah. Otherwise, I have to admit administrative law when I went through Pepperdine was not the most exciting class, but Bush v. Gore, which made it real, it brought it all to life. You're very smart to have studied administrative law because we're going to see the wholesale dismantling of all the executive agencies by Bush's cabinet and you'll be able to bear witness that there actually used to be an EPA and other executive agencies and not merely an executive. So I fear what Neil Gorsuch means for the future of the precedents set by the Supreme Court, particularly Roe v. Wade. I was really hoping to have Citizens United overturned. I think this is probably one of the most impactful things that, I hate that word impactful. Let me take that back. One of the most important things that Donald Trump will do during his presidency, the guy is only 49. He can have 50 years on the court. He could shape law for the future 50 years. So I'm a little disappointed in his nomination. I mean, politically, are you more aligned with his, are you more on the conservative side? Well, I was raised Catholic, you know, church every Sunday. But I still take the position now, especially with things like contraceptive rights or abortion. It really is something I think you should leave up to an individual, instead of mandating whether or not you can or cannot, you know, obtain contraceptive or. Right. Right. I agree. Procure an abortion. It's part of your right to privacy. There are a variety of laws that I didn't particularly care for that limit that. There was one, I remember, where you had to have anesthesia if you were undergoing an abortion. And it just seemed to be like you're imposing political views and religious views into what really is essentially a personal choice. Yeah. And it's also like a medical procedure. Right. And I don't think it's something that you should abuse it or use that. No. No, not at all. But it's. But having a government step in. And say you cannot. It seems to be a little bit much. You know, I'll tell you, you know what this guy, this guy, the Supreme Court nominee, has written extensively about the right to death. And he's vehemently opposed to people, the right for people to choose to die, which leads me to think just from a logically consistent point, he's going to be opposed to abortion too. Because if you value life in such a way, and he's kind of a religious guy, so if you value life in such a way, I just don't see how he can vote with, you know, he cannot vote with cutting further into Roe v. Wade. They say that the court, Roe v. Wade is safe right now, but if one of the other liberal Supreme Court justice goes, like Justice Ginsburg, who is, I think, 84 years old, then that's like pretty much curtains for legalized abortion in the country. So it's kind of, it's really, I think we're really at the precipice of something monumentally big here. The whole tenor of the court could change. Yeah. Well, I would agree. It seems like his background is more pro-life, regardless of the circumstance. I know he authored some type of publication about being an opponent of assisted suicide in Tunisia. Something like that to me seems to be, as attorneys we always get, this is a case by case analysis. This is, you know, not a bright line rule. We have to do these determinations, and part of my practice is employment law, and that's filled with case by case determination. Right, it's totally fact specific. Well, I take the same position with assisted suicide or euthanasia. I agree. I mean, if you are of sound mind, and you're terminally ill, and you're scared to have to death, I don't think there should be a government regulation that says, I can't choose to take my own life. I agree, but this, I like to read, I haven't had a chance to read this paper, but I'd like very much to read this paper because it's kind of, why would a judge opine on this? This doesn't seem to be a burning issue in the courts, and it's an interesting choice of subject matter for him. I think it belies a certain religiosity. Well, I'll see when I read it, and we'll know for sure what propels him, what's the thing that makes him tick. So bearing in mind, you're the host, and I'm not supposed to be asking questions, I'll throw one out. That's my question. Any question you've got? How do you think Neil is going to rule or feel about all of the immigration issues that we're seeing flooded in the news as of Donald Trump's inauguration? You know, that's really interesting because I have a bone to pick with President Obama about that and President Bush, and this is that President Bush and President Obama expanded the power of the executive office so greatly as to make it possible for a president to do nearly anything. Now, I'm opposed to the executive order which bans immigrants from those specific countries that Donald Trump signed last week. And you're not alone. No, it just came from protests. Go out and protest if you get involved. You know, frankly, I'm not going to tell you how to get involved, but just get involved. But I think he'll vote, I think that he'll vote to uphold the executive order. I don't think that the president is acting, oh, okay, this is going to be a great word, ultra-virus. Oh, boy. You know, outside the scope of his responsibility. So, you know, he's an originalist, right? We talked about this. He's a textualist, just like Scalia was. And you know, some people, like myself, think the Constitution is a living, breathing document in that it's of the people, by the people, and for the people, and it continues to grow as our consciousness and our culture grow. But he doesn't believe that. He liked to get into the minds of a few guys from the, what, 16th century, 17th century. And you know, I have a hard time with that approach, only because of what I do, what we do. You know, as an attorney, yes, you're supposed to be an advocate for your client. You're supposed to, you know, be diligently working and doing things. But at the end of the day, you also need an ability to take things in context and take a... There is no context with textualism. Put yourself... Your word is this word. This word is that word. And you know, implicitly, I think it's inherently biased toward the conservative viewpoint, because it's just by the very nature of its practice is like not changing. We're not going to change anything. So if we really were pure originalists, pure textualists with respect to the Constitution, I mean, lots of people wouldn't be able to vote right now. That's true. It's an inherently conservative stance to take, interpretive stance to take. But tell me, you know a little bit about one of... Justice... Well, he's a judge, still, right? Justice Groschall? Groschall. I say Gorsuch. Gorsuch. Well, Groschall is certainly... I'm pronouncing it wrong, but... You know something about one of his really important decisions, which is the Hobby Lobby case? Yeah, that was in the news pretty prominently. And the whole thrust of the case was it was 10th Circuit and Neil Gorsuch upheld an employer's religious beliefs for closely held corporations and disagreed with the mandate in Obamacare where employers had to cover contraceptives. In particular for Hobby Lobby, this was like the morning after Plan B type pill, because the employer had a religious background, was opposed to abortion and under Obamacare or the Affordable Care Act, was being mandated to provide health coverage for a religious, well, what he viewed as a religious act that he was opposed to. So he came out, stood against it. The case only applies to closely held corporations. So you're publicly traded in all the bigger ones. So it's very narrow. It is pretty narrow. The significance of it is recognizing an employer's religious right to refuse certain contraceptive coverage for a viewpoint they disagree with. Another case that... Wait, let me take a quick break and we'll go on to talk about some of his other cases, which I find fascinating. I'm Marianne Sasaki. You're watching Life in the War. We'll be back in one minute. Hey, has your signal just been taken over or am I supposed to be here? This is Andrew, the security guy, your co-host on Hibachi Talk. He joins us every Friday on Think Tech Away. Aloha, caco. I'm Marcia Joyner and I'm inviting you to navigate the journey. We are discussing the end of life options and we would really love to have you every Wednesday morning at 11 a.m. right here. My name is Mark Shklav and I'm the host of Law Across the Sea. The Law Across the Sea is a program that brings attorneys who have traveled across the sea and live in Hawaii or are staying in Hawaii for a time to talk about their travels, where they're from, where they're going, and bring it all together because really we're all connected some way, although we travel across the sea. So I hope that you'll tune in and watch our program. Thank you very much. You're watching Life in the War. I'm delighted today to have Michael Kozak on. And Michael was just discussing the ramifications of the Hobby House case. Hobby House? Hobby Lobby. Hobby Lobby case. And tell me, what was his reasoning that a company could have religious beliefs? I mean, because it was a closely held corporation, so really the company was no different than the person that owned it? Well, that essentially seemed to be the line of reasoning that he went down. Again, it's only for closely held corporations. And it reminded me, as I was perusing the opinion, it reminded me of the opposition to Chick-fil-A. The founder of Chick-fil-A came out against, I think he said he was a traditional marriage type person. Right, he was anti-LGBTQ. That organization is closed on Sunday and observes Christian holidays. It reminded me a lot of this case as a different shift in thinking. And when you think about a business, who is the government to tell a business how it should or should not be run in the sense where, if you're like the founder, I think true at Cathy was the name of the Chick-fil-A guy. If you believe that your business should close on Sunday for your religious beliefs, and you're the one that really suffers, or you lose the day of business, part of me thinks you should have the ability to do that if you want. But they're operating in a country in which we don't discriminate against members of the LGBTQ community. And Hobby Lobby is operating in a country and taking subsidies I'm certain from a government who provides that it's a fundamental right of a woman to have an abortion. So I mean, yes, I understand what you're saying, and I understand what Grossetch is saying, but I just don't agree. I just don't agree. It's a big step in legal land for the Hobby Lobby case to exist. I think so. It gives the company a religious basis, yeah, to choose to do something other than what is typically provided for in the law. It also rings of the separation of church and state. It seems to be like... It's trickling in. It's trickling in. So tell me about other opinions he's written. Well, another case. This was Pleasant Grove v. Summum. That was the case where a government displayed the Ten Commandments, and there was opposition that if you're displaying a Christian icon, that you should also display other religion icons. Like Christmas tree menorah, whatever. That's what it reminded me of. I saw a TV show once where there was like a children's play, and all of religion was taken out of the Christmas play, and it just was this bizarre type of thing getting off track. He had ruled that by displaying the Ten Commandments, the government's not required to also display other religious monuments, which again, that seems to be... That's interesting. I wonder what his reasoning was. Do you think his reasoning was that the Ten Commandments are so universal, they're like supersede religion. They're not even religious iconography, because that's how important and relevant they are for the law. I imagine that's what he... Primarily, yes. It was almost like it's... It's not even a religious... It's not like a Christmas tree or menorah. It's not rooted in any single religion. It reminded me of copyright law, when you'd see something in the public domain, meaning you can use whatever portion of it that you want without having to pay any sort of royalty or fee. It seemed to me when I was reading it, it reminded me of that. Yes, it's a happy birthday of religious icons. Pretty much. It's pervasive. It's all pervasive, and it's lost its impact as an overtly religious icon. Now, I know I've been positing this poor judge, who's going to be the next Supreme Court justice, as anti-oldist material and very conservative, but he actually did come out on the right side of one opinion. Tell us about that opinion, because I find this fascinating. Well, it was a 2016 case that involved a minor child, and a lawsuit was bought by the minor child, by their guardian against... Anne Holmes was the defendant, but it really was against a policy where, if a kid burps in class, that that is punishable by jail time. Where was this, you know? It was 10th Circuit. I don't recall what stayed off the top of my head, but he came down after his analysis. I thought it was funny that a case involving burping would ever get to the Supreme Court. Yes. Well, we love burping here. We love burp law, you know. Burp with impunity. I just wondered about all the problems. He was the dissent in that. Yes, and he dissented by basically saying, something that's ordinarily a disruption and not a threat to safety or health, but a disruption in the classroom cannot be criminalized. Was it the majority rule that burping could be criminalized? Under the statutory scheme, yes. Wow. I guess a disruptive... Well, I mean, schools anymore, you know, when you and I went to school, there were no metal detectors. There were no guns. I didn't know any kids that brought guns to school. You know, I did go to a private grade school, but I was friends with all the kids in the neighborhood who went to the public school, and they didn't have any friends bringing guns or knives or you didn't have police officers in school. You didn't go through, like, searching and something. So times certainly have changed since I was a kid. And it seems as though schools are now a zone where there's a lot less control over what happens to the point where you have police involved in day-to-day activities. You know, kids have no civil rights. I discuss this constantly with people. Children have virtually no civil rights in our country. I mean, and they should. They should have civil rights, you know. I'd say the state should beware because, you know, the thing that happened to the least among us, like children, it always sort of goes up and actually has more control. And we've seen it over the past 30 years an increasing in amount of government control over areas that we, like, whether personal decisions about abortion or Citizens United allowing, you know, large PAC money to flow into presidential candidates. So, you know, it's, you know, we've seen the encroachment of religion. And I'm afraid, I don't know I could be wrong, but I'm afraid Donald Trump is going to be the real embodiment of that kind of unilateral singular dictatorial encroachment on people's rights. Well, I'm curious to see what happens with states like California or states that have these sanctuary cities with immigration that you've seen in the news. I'd be curious to see how the judicial nominee would opine and rule, but more the reasoning than the ruling. But I'll also be curious to see what happens to, like, California. Immigrants have a wide variety of rights, including, you know, attending public school and a wide variety of states' rights. I'll be curious to see what happens with that. And if this justice gets an opinion, sooner or later I have to think one of these sanctuary cities in light of the immigration executive order is going to file some kind of claim or lawsuit to invalidate it or just break it. You know, we have the guy on, I think it was in Florida, the mayor or governor had said, yes, we're going to enforce this, even though I disagree with it. Right. And then you have places like San Francisco where they're just openly disobeying. Right. You know, if that really is enforced, you know, it is an executive order. It's now law. You're breaking the law of San Francisco. What are we going to do about it? Right. So I'd be curious to see what Neil Gorsuch would do with a case like that. I think Donald Trump is... I don't even think that he's going to wait for a case to come up vis-à-vis the immigration executive order. I think he's going to sign a whole new executive order, banning sanctuary cities. I think he's going to address that head-on. And if that happens, that's just an explosive... It is. And it begs the question, how would enforcement be accomplished? Are you going to send state police to enforce? Please state. Please state. And if the state says, yes, we'll enforce this, and then wink, wink, no, we're not, do you send in, you know, federal authorities? Yes. This is what's very important. Apparently it's very, very important for a large segment of our country to monitor people that have come into this country without the right papers. It's like, it's significantly important. But not so important as to monitor businesses that hire illegal labor and treat them inconsistently with the labor regulations, as I said. That's of less interest, but actual people who are trying to live their lives, there's a lot of interest in policing such people. And you know, I have to say, you're younger than I am, but I remember before 9-11, and I'll tell you, since 9-11, police power, whether it's the state police or local police, or it has just grown. Oh, tremendously. The local police forces are militarized, and they have, like, they can unilaterally do really pretty much what they want. So that's what I'm imagining. They'll have rounding up of people. I hope not. That's what Hitler did. Well, Hitler managed it very nicely. Hopefully that doesn't happen. But it'll be interesting to see when a case comes up, how this particular nominee, assuming he gets confirmed, rules. The other item that has been in the news, another subject of an executive order was the Dakota Pipeline. So that has been a pretty hot-button issue, whether or not you're going to complete that thing, have it transfer all the oil with all the risk of leaks and all the leaks that have occurred already. It'll be interesting to see how this particular justice views that. Right. I have to tell you that while he may be only, he is a milder version of Justice Alito or Justice Roberts, I think I know how he would rule in these instances. I think he's going to go completely with the conservative party line, because it seems that the Supreme Court is no longer above the law, I mean, above politics. It's part of politics. Well, and that was the criticism recently that politics is influencing and taking over a portion of the judiciary. Isn't that breaking heart? Because you learn in law school that the judiciary is above, it's such mundane matters that they're really concerned with great ideas, great matters of great import for the country, not who will be in office or who won't be in office or what party or another party. Their great projects are desegregating schools and stuff like that. And now... Well, law school, as I reflect on it, seemed to put things very black and white. It seemed like there was a particular answer or a right answer the teacher might have been looking for. But when you get into practice, and I'm now 12 years in, you start to see very little as black and white, if any. You have a particular position, someone else takes an opposite position. We've seen it as recently as the inauguration where Trump is disputing the number of people that attended and you look at the Obama picture and the Trump picture and one, unless I'm crazy, clearly has less. Why are we disputing that? Well, you're a litigator. You should know why we're disputing that because we, as lawyers, can take any side and make an argument for any side. Oh, I've seen that. Michael is a great litigator. You should look up some of his work. You have some... I know you've given some seminars and so on. And what's the name of your firm? Porter McGuire, Keyakona and Chow. Well, thank you, Michael Kozak, of Porter McGuire. I'm going to stop it there because I'll nangle the rest. And I appreciate you coming today to talk about this very important day in history, frankly. Pleasure to be here and thanks for the invite. That's great.