 Good morning. Those of you here in Hawaii. Good afternoon or evening. Those of you elsewhere. Thanks so much for joining us on Think Tech Hawaii and we have another all-star group. We have Professor Vanilla Randall Emeritus from University of Dayton School of Law, one of if not the leading expert on racism and the law with literally thousands of subscribers to her compendium of articles and blogs and information on that and this year's winner of the Great Teacher Awards from the Society of American Law Teachers and that's a recognition of a real teacher's teacher from the people who do law teaching as a living. So just want to acknowledge that that's especially meaningful. Ben Davis, former chair of the American Bar Association Dispute Resolution Section, the winner of the Ellen Burr Ravenna award and others, international scholar in Europe and in the U.S. and now teaching at Washington and Lee School of Law and David Larson, chair of the ABA DR Section and the pioneer of New York's online court case resolution program, which is now going strong after five, six years of foundational work that David led and has made very effective. So thank you all for joining us. Happy St. Patrick's Day. There's a lot going on. Hey, if we were going to pick one issue that's of greatest concern to you right now, where something constructive needs to happen urgently. Professor Randall, what would be your pick? Well, I always my pick is that as long as we don't have, as long as we legally allow racial discrimination, that's my pick, eliminating passing laws that would eliminate all forms of racial discrimination. And as long as that doesn't happen, you know, there'd be hot pockets of stuff that comes up. But the fact is, is that we illegally allow people to discriminate and that discrimination is pervasive. So that would be something that could be done. Maybe not after the midterms, but David, what's number one on your list? Well, our law school here in St. Paul, the Mitchell Hamlin School of Law recently adopted a statement that we're going to be an anti racist law school. And we're trying to make a lot of changes that implement that mission statement. So that's certainly very important. It's going to be important for our institution moving forward. When we think about urgency and immediacy, of course, I'm thinking about Ukraine every day, and what's happening over there and the possibility of that conflict getting larger and more destructive, and continuing to be destructive even within the borders of Ukraine. So that's, that's troubling to me and something I feel needs to be addressed ASAP. And then locally, we've got a big teacher strike here in Minneapolis. And there's a lot of public school kids that are not sure where they're going and what they're doing. And their parents suddenly have them thrown back at them after the pandemic and trying to teach at home. So there's a lot of chaos in the twin cities right now with the big teacher strike. It's well connected. Brother Ben, what's on your vote? Kind of tied to a couple of different things that you all have already said, Professor Randall and David. One is we've really got a problem in our Supreme Court that really bothers me. There was a decision just came down like on March 3rd about this guy named Abu Zubaydah who was tortured and everybody recognized he was tortured. I mean, it's not even an issue. And the Polish authorities are open in a criminal investigation, right, about who was doing it and all that. And the idea is he's supposed to be able to testify. And there's a Supreme Court case saying where in Poland cannot be revealed where he was tortured. Poland's already been condemned by the European Court of Human Rights. Poland has a mutual legal assistance treaty with the United States and they did the proper channel thing of asking the United States, can you provide this, that and the other information? United States said national security. Boom, shut that down. So he testified and it's complicating the Polish criminal process that they can't get this evidence. Now, everyone in the world knows where the guy was. There's a town called Starikieczkuti in Poland, all right? I mean, it's well known. But the thing is, is for having the CIA say he was tortured at Starikieczkuti is a state secret. And one of the things that struck me in that decision was was a fractured decision is you had Justice Gorsuch and Justice Sotomayor together dissenting on the nonsense. You know, it's like, come on, man. The state secrets thing was already started out as on the basis of basically trying to hide negligence by the army with regards to the death of somebody's relative back in the 50s. And you can't even say where the actual, where everyone knows it happened, you know what I mean? And then he's got to testify and he's got to get authorized to testify and then it's like, well, yeah, he can go ahead and testify subject to what the CIA tells him he can say, which means that, you know, they're going to muzzle him too, right? You know, and you just read this decision by the way, Justice Breyer, okay, just to let you know with the other guys who are the conservatives. And you're like, seriously, are we really at this point of hiding stuff that you can't even mention the actual place where the guy was tortured because, you know, you got to build the evidence about what exactly happened to him and all that stuff and keeping all that secret. It's appalling. It's appalling to me. Okay. I mean, I'm just like, I read that and I was just mortified that our government is that messed up, you know, in the positions it was taken. By the way, this is a Republican or Democratic administration doesn't matter. The state secrets line is so strong. And it gets to a point where it's kind of like almost calf gas. State secret security, national security in the name of the national security, you know, all kinds of sins are not sent under the law. And that's how we ended up putting excuse me, Japanese Americans into concentration camps. You know, I mean, when you come back in the sky, it was released who had been in jail for killing Malcolm X. And it turns out that the FBI held back evidence to both the defense and the prosecution, you know, that would have solved, you know, would have probably exonerated the guy. I was like, that's really deep that it's the wall is such that neither the prosecutor or the defense gets this whole series of relevant information that would have maybe changed that case back in the day. You know what I mean? You look at these things and you say it's kind of, to me, at least it's very, very troubling. And I think it's really wrong. I actually agreed with Justice Gorsuch and Justice Sotomayor who were basically saying, you know, state secrets is not about hiding things that you did wrong. You know, it's about other stuff than that. And we can't just throw things under that bus, so to speak. So no one ever gets accountability for what they do. You know, that's just me. What's kind of depressing is it's a constant vigil. It just resurfaces all the time. It's an effort to kind of control status quo, control power. You know, you're seeing all kinds of variations of this happening in every conceivable realm, where people continue to do things behind closed doors, kind of surreptitiously trying to slide things through in an effort to control. Yeah. I don't know what, I don't know how we move the Supreme Court. I mean, I think the Supreme Court is corrupt that the Republicans on it do things that they couldn't, that if they were lower judges, lower level judges would get some of the Republicans, not all do things on it that if they were lower level judges would get them in peach and they keep refusing to apply a code of ethical conduct to the Supreme Court. Sort of like we can take care of ourselves. I am also concerned. I hate this way we talk about the Supreme Court being conservative and liberal. It's right and middle with, you know, with some justice being left on some issues, but that they, they're philosoph, they're not, they're not philosophically to the left, judicially, they're just on some issues, which brings me to the issue of Brown. I'm really concerned about her. I think, you know, I, it's, you know, we're celebrating getting a black woman on the judicial court and she's more qualified on the standard stuff than, than anybody who's been brought up in the last few times. So it's not about qualification, but she also has some, she also has the support, the support of the fraternal, fraternal officers, officer of police. Is that right? Did I see it right? The fraternal order, yeah. The fraternal order of police. And I read her things and basically, and I think they're right about this. She has issued things that sort of protect qualified immunity. And if for, if for black and brown people, Native American people, although Native Americans who are on, on reservations are not subject to the crimes, not subject to the same sort of qualified immunity on their reservation. But if black and brown people are being killed by police, and we can't get police into court because of qualified immunity, I don't know that it does us any good to have her at the table. Because that's what everybody said. We need to have, we have, we need a black woman at the table. Do we need a black, neoliberal law enforcement protecting woman at the table personally? I kind of rather just have a white man be there. So that when I complain, I can say, hey, this is about white men, not about black people. And her, her being on the court, if she continues down the road, she's been going down on qualified immunity will give cover to white supremacist races who say that it's not racist because they'll point to her and say, look, this black woman who the liberal support says qualified immunity is a good idea. So I have that concern about her being on the Supreme Court. A couple questions. One from what was raised a few minutes earlier. Should we have term limits on the Supreme Court? Is that, is that a solution? Number one, and should we be supporting this candidate for the Supreme Court? I'm suggesting getting this suggestion from Professor Randall. Randall, not, she's not sure. There was a point when we could, may have gotten someone different, but none of the candidates that Biden put forth was better than her. So, so all of my criticisms of her, none of the black candidates were, black women candidates were better than her. He found, he picked, he didn't go with, what's her name with the. Cheryl Eiffel. Cheryl Eiffel. She would have been, but she was, you know, she didn't have, so he picked a concern of moderate black jurist. And I think we just need to say that over and over again, so that people don't get the idea that she's going to do stuff that she might, I mean, she could. Earl Warren did stuff different, so she could get on and say, be different. What was your other question? I was just going to agree with you, just if I could, to just say that, you know, Thurgood Marshall or Constance Baker-Mottley would never be able to get on the courts today. You think about it? I mean, I don't see any way that in the way, essentially moderate, the Democrats propose moderate candidates and Republicans propose, basically, to the right. And they just wouldn't have got, you know, not onto any court, let alone on the Supreme Court. That's the, this unfortunate set of affairs. Is the answer term limits the kind of, that's the question I think Professor Randall wanted to get back to. I think term limits are important, just because I think that nobody should have that kind of power indefinitely. And just because you can live to 90, don't mean you should be on the Supreme Court for 50 years. But on the other hand, I just, I want some of the method that goes beyond Democrats and Republicans appointing their viewpoint to the Supreme Court with and closing out all of us that are not Democrats and Republican and not leaning because people say independence are either Democrats leaning or Republicans leaning. Some of us don't lean either the way. Some of us are to the far left and we ain't leaning Democrat or far right. And I think that the court needs to represent a wider view of political philosophy. I don't know how you do that with the way we currently appoint people and structure it. But if we're going to do term limits, maybe we could also include that there has to be representation of socialist views at least on the quarters, something like that. Now you still haven't said an example. Okay, what is it as an alternative if it was a mandatory retirement age like 70? So it's not a term limit. But once you hit 70, I mean, I always liked the fact that when it was a Justice Souder, he hit 65 and said, I'm out of here, see you later. There's sort of like normal retiring people kind of do. But what about that? At 70, you have to retire. Now, even if you're, you know. That might be a good alternative. Maybe I'm thinking about this too much about my own aging process. And I sort of feel like that what we see a lot going on in Congress and in the Supreme Court is changing the processes to deal with aging people. So that, you know, and it's easier for the the Supreme Court to cover because they don't have to come out and walk and talk in front of the thing. But you just look at how infrequent the Congress people actually stand up and talk, how they don't come out very much. And I was telling my son, and maybe I'm just imagining things, you never see him walking anywhere, you know, they're always there, you know. Like the old South filibuster, you remember that they had to stand up and talk to do it. And then they set it up to the thing, all you have to do is, you know, send in and doing a filibuster. And then, you know, you don't have to do anything, you know. Then yes, a question about mandatory retirement is interesting. When you think about the age of our president, the age of our former president, the age of Nancy Pelosi, the Mitch McConnell, you know, we're all, I mean, the highest, most powerful people are octogenarians, or just about. So I'm not sure how that plays in the mandatory retirement. Absolutely. The mandatory retirement goes all the way up. You could run for president, but when you get 70, I don't know. I just remember when I went to the World Conference against racism, and they put 30 year olds in the youth group. Now, I was older, I was in my 50s at the time, but I was talking to some 30-year-olds, and they said, the problem is, is none of these people are getting out of the way. So there's no upward mobility because nobody's leaving. They're getting, they got long lives. They're getting those positions. They stay, and so you're not promoting the 50-year-olds. You're not promoting the 40-years-old. And so 28 to 29-year-olds stay stuck in what is essentially, you know, they're adults, but they can't get the experience because nobody is moving out the way. Everybody wants to keep working until they drop over. So they want to keep the power. Maybe if you give them some kind of alternative power. Yeah. You know, what about the elders kind of thing, you know, where there would be sort of a council of elders, you know? I mean, we had the fact though, you know, with the famous old quote-unquote wise men that would be councils to a president like, I'm trying to think of some of those names along the way, but they were sort of like a kitchen cabinet, a hidden cabinet, you know, but it would be just, you know, kind of a council of elders with, at most advisory, you know, they gave advice. They gave advice. There's nothing binds anybody. You know, we don't have a court that can give advisor opinions like the Supreme Court of Canada does. So we'd have a council of elders that would provide sort of what they see at 80, you know, kind of remember, I don't know. I don't know who's going to name them, all that stuff. I don't know. But I want to add something else that I think is relevant to the Supreme Court because Professor Melissa Murray came to speak at the law school, I think yesterday, you know, and she's got an article that just came out in Harvard Law Review where she's analyzing the abortion likelihood cases. And she mentions it, I think it's a 2019 concurrence by Justice Thomas, who is basically going at the anti-abortion thing from a point of view of basically being anti eugenics, you know, the whole Margaret Sanger, historic plant parent thing, and going at it from point of view of it's anti abortion is anti black based on that history. And so apparently in that opinion, he does a version of history that Professor Murray in her article, Harvard Law Review, amps up much more and shows the fact that lots more nuances and the visions in the black community with regards to abortion from family planning visions to visions that didn't think of it, it was like genocide, you know, and she just did this really rich thing. And in terms of, but we're waiting for that decision of, you know, if the Thomas sort of revisionist history is used as a base to attack not only Roe, but Griswold in contraception. It's a really, if you made a very, very, at least thought provoking concern about the tack that might be taken by the majority in its decision coming out. And so I think that's something that we should, we should worry about the sort of revisionist history of the, of based on the black movement that is kind of used as a wedge to attack both abortion and contraception under Griswold, the right of privacy. I wonder, I think that's the, yeah, that's the point. And I wonder if they will use this as an opportunity to turn background versus Board of Education. But that's where I worry about the religious kind of the push of the religious side of things, you know, the, you know, your deep held beliefs, because one of the things with the court generally is that you never question anybody's religious belief. It's like they deal with it in the context of not questioning the person's belief, right? And that, you know, obviously there are different religious beliefs that have happened along the way that have basically been about subordination of this, that or the other person, because they're not true Christians or not my kind of Christian and all that, you know, here in Virginia, for example, they didn't have quote unquote official religion. But if you wanted to be a Baptist, you know, you had to get a license to preach it. Oh, you couldn't get a license, but you're free to be a Baptist, but you just, you know, that's the kind of the old colonial thing. But I do have not questioning religious beliefs. When we're thinking about in different contexts, you know, Florida had the had kind of took an anti mask anti vaccine position. And you wouldn't have to take vaccines or masks if you had a sincere religious belief. And so what they did in Florida was they have it's available on the website, you can download a form, a religious, a religious belief form that basically you just check it off. You just say, yes, I have a sincere religious belief that the warmest bold face print that says no one is entitled to question the above confession of sincere belief. And you will be bound by it. So that's the depth of the necessary sincere belief as a checkbox on the internet form. And the thing the problem becomes is racism has been centered in religion. Racial discrimination was centered in religion. It was and while many religions have moved away from the doctrine, racial doctrine, many have not. And so if the Supreme Court promotes severe, I mean, serious, what was it serious, sincere, sorry, sincere religious belief as the standard by which you, your behavior preempts other rights, constitutional rights. I don't understand how they will, how will they be able to articulate that at first amendment, so sincere religious belief is preempted by a 14th amendment, right to equal protection. Thank you. Exactly. The battle, the battle lines are drawn right there. Absolutely. You know, and how, and how they're going to do that dance between the first and the 13th, 14th and 15th, I'd say, but certainly 14th. Exactly. Exactly. You know, how they're going to do that. I don't think they will. I think they'll, I think they will go to First Amendment and it's up to the states to decide how that's enacted in each state so that you can have state rights. Or, you know, like women's subordination, for example, in religious traditions. I was listening just to get back to Ukraine a little. I was actually listening to some comments by the head of the Russian Orthodox Church in Russia, you know, which was basically veiled criticism of LGBTQ as being, you know, sort of against God's will, right, you know, like that. And so that can imagine, you know, that kind of religious faith being done to it. And in fact, there's some case that's coming up where the person's position is something along the lines of I'm opening a business and because of my beliefs, I am not going to deal with LGBTQ people. Hasn't sold the thing, hasn't met a person, but this case has been taken to see whether a person can do that. Well, if somebody can do that, obviously I can say I'm opening a business and I don't want any black people or I don't want people with disabilities because that's my faith or whatever, you know what I mean? And if that's enshrined, but you have no anti-discrimination law. Go into that concern about the First Amendment. You know, the standard line has been that if we look more closely at the decisions being made, we are interfering with the administration, the understanding to the philosophy of that religion. And you see it in Title VII cases when a court is reluctant to try and make a comparison between parties by saying that if we have to actually dive into the specifics as to the comparable status of these individuals to make our similar situated analysis, we're going too far. So only if they are ostensibly, indisputably, similarly situated on their face, we're not going to get involved because that's imposing on the First Amendment. And when you start reading it that broadly, then you are starting to eviscerate those rights. And much as I hate to say it, we are out of time for today. We've got a lot of momentum going. Please come back and rejoin us in a couple of weeks. We've got a lot of things out there, broken systems, broken rules, like the old Bob Dylan song, everything broken. Where are the fixes? Thanks so much. Thank you. Professor Randall, Ben, David, and all of you who are joining us. Thanks so much.