 This is Think Tech Hawaii, the rule of law in the new abnormal. Today's idol, such as it is, is C-Change SEE, C-Change SEA. We'll see where that goes. We have the honor of having with us Professor Emerita Bernadio Randall from the University of Dayton School of Law, Professor Nao Emerita Emeritus, Ben Davis, you have Toledo School of Law, Dean and Professor also Emeritus, I believe, Jim Alfini from North Illinois and South Texas Schools of Law. Jeff Portnoy, our leading First Amendment and constitutional expert, and also color commentator for the UH basketball team for a number of years. So, folks, one of the topics that's raised its head recently and looked around to see if it saw a shadow is voting rights. Brother Ben, something recent on that? Well, I watched Senator Warnock's maiden speech on the floor of the Senate, and it was really something to listen to. He pointed out that in his father's generation, the senators from there were Senator Russell, Richard Russell, and Senator Talmadge, who were two of the most pro-segregation senators of their time. In fact, Senator Talmadge's dad had been the governor of Georgia. I'd once said that no blacks will vote here, and somebody asked them, well, how is he going to deal with that? He wrote down one word on a piece of paper, pistols. So, just the concept of what it means to have Senator Warnock as a black person representing Georgia, and he also talked about Senator Ossoff as a Jew representing Georgia, how amazing that really is in this country. The emphasis he put on is that this is the greatest anti-voting effort, a voter suppression effort since Jim Crow times. He put it right there, and he's talking about the civil rights moment. One of the interesting issues is what extent the private sector is going to step in and say things. You got a little mealy-mouthed stuff from Coca-Cola and Home Depot right now, as opposed to full-throated support for the various bills. Then another game that we're seeing right now is the whole filibuster game, which is that we're going to get rid of the filibuster rules. It's okay to vote for it. You can have more than 60 people vote for the legislation that's being proposed. It's not a filibuster, but it's okay if you vote for it. But I just saw something that there had been a 46-page bill introduced in Georgia, and then today, or bait-and-switch was a 93-pager, which has got even more stuff. The one I love is that it's illegal to give people water waiting in line. I'm like, where do people come up with this stuff, that level of, callous hate that you're going to really thinking right down to the who's standing in line and what they're going to have is water. I mean, it's shameful. It really is shameful. No Sunday voting, right? It closed down the souls to the polls that many, many Black churches helped to generate. And maybe the 46-pages got to 93 because they didn't notice it was front and back. What you need to remember, everybody, is that these people who are introducing the bills were voted in by the people in their district. So this focus on the individual who introduces the bill is really leading in the wrong direction. They are in their own minds representing the people in their districts. That's the scary part. That's the scary part. Well, Jeff, you have to acknowledge, though. Give them some credit. They may be racist, but they are hypocritical. Give them that. Well, you know, there's plenty of hypocrisy allegedly going on right now. Look what the Democrats are doing in challenging the election in Iowa, that a Republican won by six votes that they put into the House. At the same time, they ranted and raved about all of the efforts to challenge the last election. I know you can make legitimate distinctions, but really, you know, the Republicans, the only Republican member of the House I believe from Iowa is now being challenged by the Democratic majority on a pure party-line vote. Now, how that'll come out, who knows? But that vote was certified by a bipartisan election commission in Iowa. So, you know, every time the Democrats take two steps forward, they take a step and a half backwards, as far as I'm concerned. This is an unnecessary challenge. And I think it just leads to people who want to believe in hypocrisy, gives them some proof. Well, and the other thing that it does, Jeff, is when we were kids, right, we all played some kinds of after-school games or sports or something. And they taught us, okay, if you're playing baseball and you lose by one run in 17 innings, just go out there and play better tomorrow. Hey, Jim, you had some thoughts. But, you know, I was wondering whether the sole rationale for these voter suppression bills in the state legislature was fraud. I can't believe that after all of the discrediting of the fraud allegations, they still come back with that. Is some of it, though, that, hey, we had to respond to the COVID crisis. Now that the COVID crisis is pretty much going to be over, we can go back to normal, you know? We can have, we can make it tougher to vote absentee. We can make it tougher to come in later at night because, you know, we don't need, we don't need all these frills, if you will. I don't understand, you know, how they're getting away with it. I mean, what are the, what's the rationale? Because I believe, Jeff, that there's a poll in Iowa that shows that the voters are not in favor of this, for the most part. So I think there's going to be some backlash among the voters, particularly among independents. Well, I think I wish there would be some backlash, but I have no hope whatsoever, largely because this, what's happening is not new. The Republicans and the Democrats. The Democrats have been doing something really kind of different. In fact, they've been working with the Republicans to suppress the ability of third parties to be on the ballot. And in fact, I think one of the bill that had a measure, one of the bills that they're promoting, voting bill, actually has a measure that increased the amount of money that a third party has to raise to be on a ballot by like 600%. So that's a form of, I mean, if you, I hate to have this word come out my mouth because I don't believe we have one, but for our pseudo democracy, that is a form of suppression, oppression, suppression. And then the Republicans have been suppression votes, as long as I can remember in this, in Republican run states, they have been doing all the, all of the stuff they're doing has been done one place or another before. The big deal is so much of it is happening right after the pandemic, I mean, right after the vote, and they're mixing a lot of different stuff. And so you might have two or three things in one state and two or three things in a different state. Now we have all of it in, you know, Georgia and all of these other states, but it really isn't new behavior. It's just more of the same. But isn't it sort of helpful in a way, Bernadette, in the sense that now we have a good understanding why do Republicans need to gather and hoard so much money? Because it takes a lot of money to buy enough votes and to suppress enough votes to actually beat the majority. That's the only way to do it, as far as the late night hosts can tell. I don't know. I have been frustrated by the voter suppression for so long that it's hard for me to get riled up about Georgia when, I mean, it's like we should have been riled up 15 years ago. And stopped it then, and we wanted to be played nice, so we didn't do it. Now it's interesting. It goes in conjunction with, you know, we were saying last time that getting rid of the filibuster, I mean, I think they should get rid of it, but if they don't get rid of it, I think they should make it harder. They should go back to, you know, they should not make it so easy where all you have to do is voice the idea that you're going to filibuster and then shift the responsibility to get 60 votes. Then there has to be some actual filibustering of some kind that goes on. Well, the rules of the Senate are so arcane and so undemocratic. Filibuster is just one part of it, and it's the one that people can grab onto because it's so hard to understand all the other rules of that institution. And, you know, as McConnell said the other day, even though, you know, it was a threat, do away with the filibuster. He can keep the Senate from ever even going into session because their rules are so bizarre, you know. I mean, they can make a rule that said, you can't go into session and let you have a quorum, and you know how rarely that is that they have more than two or three people on the floor, etc., etc. So, I think the filibuster has just become a focus of really, again, how arcane the Senate rules are, starting with how they get elected, to from every state, regardless of your population, the way they operate on a daily basis. It's very undemocratic. And that was the purpose from the beginning. You know, but there's all kinds of ways to get around it. Now, you know, the big push to maybe make DC a state so that Democrats pick up two more senators. Who knows if Puerto Rico is lurking in the background to get two more Democratic senators. So, it's bizarre. Well, you know, that push for DC to be a state has been a long standing push. And regardless of the impact on voting, the DC should be a state. And if Puerto Rico wants to be a state, it should be a state. And if one wants to be a state, I think we ought to listen to get rid of most of the territories and allow them to be regular states. I don't know why it's a holdover from colonialism to continue to have territories that are not states. So it would be a good idea to get rid of all of the territories and make them state. But I doubt that that's going to happen, I mean. Yeah, but Jeff, your point's an important one, because the least representative legislative branch is the one that controls the appointment of all the federal judges, which are lifetime appointments. And cabinet members. Let me ask you, ask a question. Lifetime appointment is not a constitutional thing, is it? No, Constitution says during good behavior. And I love to remind federal judges that that's what it says. None of us would be eligible then. That's right. I mean, we always make this assumption lifetime. I mean, we always do the lifetime appointment, but that's one change. I mean, they couldn't get it passed the Senate because of the conservative Democrats would team up with the Republicans. But one change they could make is to put a limit on appointment time to say, you know, you don't get to be a life, have a lifetime appointment. You get 25 years and then, you know, up and out. I mean, that's an idea. You know, let me run on something by you guys that I've thought about over the years and I never seem to get any traction on. There aren't too many. You don't even have to be a lawyer to be on the Supreme Court. Wouldn't it be interesting to have an informed person who's not a lawyer on the Supreme Court to keep the lawyers, you know, straight there? I, you know, I was thinking of, you know, a prominent journalist who writes about the law, you know, would have sort of the same qualifications. The thing that really troubles me is we've gotten to the point where all every member of the Supreme Court is a former federal judge, you know, like unless you serve as a federal judge, you're not qualified to go on the court, which is ridiculous. Some of our best justices came right out of the profession or out of Congress. Hugo Blackwood was a Senator. You know, I think if you look back, this notion that we somehow have to, the justices have to be sort of grow up within the federal judiciary to get to the court, I think we should try to change that. I feel the same way about law professors. About what? Law professors. We did better off if we didn't have law degrees and we just allowed anybody to get up there and teach. Don't you agree? Yeah. Well, to tell you the truth, I think legal education is overrated and designed to be difficult so that people think lawyers are smart. But that in truth, it is a decent education that ain't as difficult as it is structured to be. And yes, I think some nonlawyers could do a great job of teaching lawyers because we don't actually teach them to practice law. We just teach them substantive. And so why couldn't some lung lawyer who knows the law get up there? And many lawyer law professors, I don't know whether this is still true, but many law professors don't even really, you know, they come out of three years' practice in a firm. That was me. What does that mean? A large firm, it means you run errands. So one of the things that we noted was, okay, I need to go to headphone. Sorry. One of the things that we noted was that in Ben's and Jim's in my field, in dispute resolution, the great majority of the public policy mediators and facilitators who are the best and the most respected are not lawyers. What does that tell us? Maybe it's time to move toward a far more interdisciplinary approach, not just to legal education, but to education in general. See, but the problem, Chuck, is that the lawyers move in and they colonize the professionals. A good example is family mediation. When I first started in the 80s, most of the family mediators were mental health professionals. They were, you know, psychologists, psychiatric social workers or what have you. That's pretty much gone by the board because the lawyer, now that mediation is popular and you can make money doing it, the lawyers have moved in and they've colonized that profession. So we need to shame the lawyers. The legal profession, unfortunately, is based on winning, winning and losing. That's the bedrock of the legal profession. Your job is to represent your client, whether it's in litigation or transactional or whatever, and win. Whether you win in court or you win in mediation, quote, unquote, or you win in drafting a real estate deal, that may not be the best way to resolve conflicts. Well, you're speaking to the choir here. Yeah, the tone deaf choir, but the choir, nonetheless. Is that a puncture? I just gave a talk to you, New Hampshire, and I basically first in New Hampshire, I basically argue that it really is time for legal education to read, look at itself and lawyers to read, look at itself and rethink. Winning as the sole goal as opposed to dispute resolution in a multicultural, multi ethnic value system where you have a lot of different value systems and we have to live together having a lawsuit or having a process where one person wins over the other and that's the goal may not be all that conducive to maintaining relationships and lawyers may need to help maintain relationships as a goal as opposed to winning. Well, there's another point that flows from what you folks just said, which is if you look at what mediation dispute resolution arbitration have become, it's basically a competitive sales industry in which people bring their conflicts, their disputes, to dispute resolvers who sell them solutions that they craft and they're known as closers and they're known as deal makers and all that stuff. Let me ask you guys a question, getting back to politics. Maybe we should have a group of mediators who work in Congress, you know, because it's not working the way it is with two political parties completely at opposite ends. Maybe we should have, I know this is just ridiculous, but maybe we should have a federal law that appoints 10 mediators who work either for the House of Representatives or the Senate and their job is to bring about agreement on any particular issue. Right, and we impose a requirement of good faith negotiation on the parties as well, so we'll see how far that goes. But the other part that comes out of this, and Jeff, you're going right at it, and I like that, is that while commercial mediators are great for individual commercial problem solving for pay, they are not so great generally at systemic problem solving, whereas the public policy facilitators and mediators, right, the Peter Adler's, Dan Dosslin's, Susan Podzema's, Ken Klotz. Larry Susskind. Larry Susskind's, yeah, Lisa Bingo-Mansler. These people craft and do that, and we are not engaging in system design, conflict prevention, management, or resolution. And Jeff, exactly what you're talking about is that systemic conflict prevention and management and resolution vehicle. Well, I think Vernelli have put her finger on it. I think we need to change the lawyering paradigm so that people are trained in law schools to be problem solvers, not to be white knights or white whatever the metaphor is, out to win justice. So that's a lot. Yeah, yeah. But I think that problem solving paradigm needs to be, the business schools have gone in that direction. The law schools need to. But that's a hard sell. So as we move into our last three minutes, yeah, go. Jeff, Ben, somebody was going to say something. Well, how do you say her last name, the new Secretary of Interior? Holland, Deb Holland. Holland. I'm really, I have no faith that she's going to be any different than any other Democrat, but I'm happy to see her in the position as the first interior, first Native American over the Department of Interior. So she got in. That's a really important point, I think, Bernadette, because she got in as a Native American. And she got in against the most concentrated opposition of the fossil fuel industry that we have seen on any cabinet nominee, probably ever. So what does that mean? Well, I think it means there won't be any pipelines along across Indian reservations. I think it means the fossil fuel industry is in a weakened state right now. They're not riding as high as when the cost, the fuel was much, much higher. There were wars in certain places that led to the sort of risk pricing at a higher level. So you don't think you don't think an $8,000 electric bill for one day is too high? Isn't there some irony in that the power outage was in the big fossil fuel state? Oh man, I'm telling you. So Ben, question. Yes. How is Mitch going to do Scorched Earth without fossil fuels? We have a minute to answer. Rub it sticks together. Always with a quip there, Chuck. I'll tell you. Once in England. So last thoughts, folks, as we're in our last minute here. Chuck, can I end with a pun here? Please. When is a door not a door? When it's a jar. A jar. Very good, Jeff. When it's a what? When it's a jar. A jar. Oh, I get it. Now, I thought I made that up, but maybe, you know, maybe you're just that good, Jeff. And no names. No names have been called. Jeff and Ben have emerged unscathed. Thanks to you. Thanks to the guy next time. I got you, man. I was going to pick on James for talking about a white night. I was surprised that somebody didn't respond to the first word. So we'll be back in two weeks. Set your schedules. Think Tech, Hawaii, rule of law and a new abnormal with another cast of hopefully these all stars. Come back and see us. Thank you all. All right. Bye, everybody.