 Good afternoon. Welcome to Working Together on ThinkTek Hawaii, where we discuss the impact of change on the community. I'm your host, Cheryl Crozier-Garcia, and today we're going to try and make sense out of recent events in the news, specifically that involve the United States Supreme Court. Joining me today is station manager and all-around good guy, Jay Fidel, and we're going to talk about the implications of the Kavanaugh nomination and confirmation, and how this will affect not only the Supreme Court going forward for the next 40 or 50 years, but also how the Supreme Court decisions affect us as a community. So welcome, Jay. Thanks for having me on the show, Cheryl. You're very welcome. So you are an attorney by profession and by education, so you got a lot more experience and training in what the Supreme Court is and what it does, maybe than the rest of us, who got nothing more than 10th grade civics. So what is the Supreme Court supposed to do, and why is it an important branch of government? First, you have to appreciate that most lawyers go through their careers. They have no contact with the Supreme Court at all. They read the reports of the decisions. They certainly cite the decisions in their briefs and arguments, but they don't get down there much. I was there way back when in the 60s to be sworn in as right, to be sworn in before the Supreme Court. The what do you call it? The Solicitor General was my sponsor. I was in the military at the time, and I was sworn into the Supreme Court. That was the only time I've been in the building. Other friends of mine, relatives of mine, have been there much more often. Point is that most lawyers don't have a lot of contact with the Supreme Court. On the other hand, it's certainly worth reading and writing about. It states the law of the land. It finds the law of the land, and it is an important American institution by virtue of the Constitution. We must have confidence in it. Our whole legal and democratic infrastructure requires that we have confidence in it. This event with Brett Kavanaugh has, for a lot of people, shaken that confidence. Why? Is it just because of the stories of his childhood and teenage years coming out, or is it the judicial decisions that he has made? What was it about this particular Supreme Court justice that really shook the foundations of the court? Well, the story, the story about Professor Ford and all that, I don't think that's the major thing that shook the confidence in Brett Kavanaugh. I think when you look closely, you find the son of the decisions he wrote, they might shake your confidence, and some of the positions he took, some of the ways that he handled, some of the cases that he sat on over the years, that might shake your confidence. But to me, the thing that shook my confidence right down to the core was that he was faced with someone who was charging him with sexual misconduct at the age of 17, and boys will be boys kind of drunk and binge with the sexual conduct, it's not pretty. And how is he going to deal with that charge? And I believe, personally, I believe that in dealing with that charge, he opted to lie about it, he lied. And I have trouble with that for someone who is being nominated for the Supreme Court of the United States. That's a very high office, perhaps one of the highest offices, legally, it is the highest office in the country. And when you conclude that if she was telling the truth, then he had to be lying. If you believe she was telling the truth, you have to believe he was lying. And if he was lying, because he's so clearly denied everything, you have to believe he's not qualified to serve, and that's the part that shakes your confidence. The lying aspect. Well, they were both under oath, so they promised to tell the truth. And under penalty of perjury, they were obligated to report what they knew. That's like a perjury isn't going to go anywhere here, but the thing about it is he had options. He could have said, well, I remember some of that, I wasn't behaving very well that day, but I think he concluded as a strategical matter that that would cost him the nomination, and that Trump would have to withdraw it or that committee would not be in a position because of the pushback on that to actually confirm him. So he opted, in my view, he opted to lie. And OK, it's a choice. And then, of course, I think the model he got from the people around him, including the White House, was, well, if you're getting heat because people claim you're lying, then double down on the lie. You know, be strident as you can, which is what he did. And the president was proud of him for the statements he made on Fox News, Friendly Fox News, and the Wall Street Journal, Friendly Wall Street Journal, and of course, in the hearing room last week. So that's how he got through, and it succeeded. It succeeded, but it doesn't give you confidence. No, no. I was actually—I've made it a point of doing this ever since the Clarence Thomas nomination way back in my early university days. When the president appoints a nominee to the Supreme Court, I make it a point to run down to the law library, and now I Google, to look at that person's decisions, you know, the kinds of things that they said on the bench, because in theory they will decide the same way if other—if similar issues come before them on the Supreme Court. So I looked at Judge Kavanaugh's history with his judicial decisions. And for those reasons alone—and this was before any of those other accusations came forward—I would have said no. He—I would not support him on the Supreme Court. What were the things that bothered you, Sheriff? Well, I think the first thing in my mind was going all the way back to the Clinton administration, and the fact that it was—Kavanaugh was one of the key members on the STAR investigative report team, who put forward the accusation that the Clintons had had something to do with the death of Vince Foster, which was proven to be a suicide, and the Clintons were completely exonerated. But that is a rumor that has continued to besmirch the reputation. Sort of like the Berther issue. Kind of. With President Obama, where Trump did continue to push that, even after it was obvious how wrong he was, and even after he acknowledged that it was not true, he still pushed it. And the people around him pushed it. It was just extraordinary. Anyway, sorry. So that was the first thing. The second thing was his decision on the case in Texas about a young girl who had a right to an abortion. She was pregnant. And because she was awarded the court, the court, I guess, had to approve it under Texas law, and Judge Kavanaugh sat on that decision hoping to run the clock out so that medically she would be too far along in her pregnancy to go through with a medical procedure. Under Texas law, it would be beyond the limitation of weeks. Right. I remember that. And that was covered by the media in detail. And so that was my second reason to not feel that he would be the best choice. And the third one was something entirely personal. You know, Judge Kavanaugh and Justice Gorsuch went to high school together. They went to the same high school that graduated around the same time. And I had to look at that as a graduate of Waipahu High School, say to myself, you know what, if there were two former Marauders on the Supreme Court, would that start some kind of, you know, would people come forward and say, no, we cannot have two Waipahu people on the court? And so there's kind of like a nepotistic feeling that I didn't approve of. In terms of getting a court that reflects the diversity of this nation, having two guys that went to the same high school does not seem to me to be the best way to bring about diversity. So we were three, I was three for three and I was like, nah, I don't think so. But my vote doesn't count. It's the Senate and the president who make the decisions about who sits on the court. Well, one of the things, you know, you mentioned is his participation in Republican and political activities over the term of his career, which is not actually that long relative to other judges we have seen appointed, you know, usually they're older. And I think Republicans like to have young judges so that the judge will be on the bench for years and years and years. And that is exactly what's going to happen with Kavanaugh. He's going to be there like for 40 years. Oh, gosh. Anyway, so one of the issues that struck me is that he was a Republican right wing operative. That's how he has built his career that has a lot to do with the fact that he's on the D.C. Circuit Court of Appeals bench. He has done, he has paid his dues as a right wing conservative. He's got an agenda. And you saw that when you saw him in his strident remarks through the Senate committee, I guess last Thursday, which was really, that shook confidence, this is going to be a Supreme Court judge, a man who carries the wisdom to lead the nation judicially, to find our moral fiber, to find the parameters of our democracy. It didn't look like that to me. But worse, he's completely politicized. And he is going to do what that party wants him to do. So if that party wants him to knock off Roe v. Wade, my sense of it is that he will do exactly that. If the issue comes up as to whether Trump could pardon himself or his family for crimes that would otherwise be prosecuted or that are otherwise prosecuted, he will do that because he's an operative. And I think we can expect that. And I hope the press is watching. Hope the press is watching every word he writes, every question he asks in those hearings so that we know what we got here. And we can see whether this was what the Senate committee said they thought it was or something else. Now we do have eight other justices. We don't just have one justice that makes the decision about whether something is lost. So Justice Kavanaugh's voice will be part of a committee voice, in a sense, nine people. No, but the majority of the court is now on the right side of things. But that implies that the entire Supreme Court and not just Justice Kavanaugh, have agendas. Well, agenda or inclinations on various issues. And I think it's clear that now the court is a five-to-four court or better on the right hand side of things. This is very troubling. And he is a solid conservative on the court, I mean, a died-of-the-wool conservative. So that's what we got. And it reminds me of Susan, Susan, the senator. Collins. Collins. What she said when she made her statement explaining her vote on this, she was a swingman, one of the swing group, if you will, that could have voted otherwise. And people were watching her so carefully about that. But she said to explain her yes vote to confirm. She said she wanted to see him on there, because there was too much argument on the Supreme Court. And they needed Kavanaugh to make peace, to bring people together. And that would be better than having all these five-to-four decisions all the time. And I said, what a crock. But aren't you supposed to have five-to-four decisions? We have to argue both sides of a situation, right? You have to have a Supreme Court that handles the issues, that deals with it, addresses with it. And if they differ, that's OK. We want that. She wants to see nine-to-zero. And she thinks he's her ticket to be nine-to-zero. And I said, this is kind of amazing that a United States senator would know so little about the United States Supreme Court. You really wonder about what schools she went to and how she perceives her own government. So you really wonder about the Senate, actually. Yeah, that's true. Although the vast majority of senators come out of the legal profession, lots of them are lawyers. And legislators in general. Yeah. Well, I think it's—government is connected with the law. The law is connected with government, you know, and lawyers are good campaigners, I guess. They're articulate. And lawyers like to run for office because they know that's where the power is. So it's a natural—it's always been that way. It'll continue to be that way. Speaking of power, we have the power to talk about some of the other great programming here on ThinkTek-Hawaii. So we are going to take a break, but we'll be right back. So sit tight. This is Working Together on ThinkTek-Hawaii. I'm Cheryl Crozier-Garcia, and Jay Fiedel and I will be back in 60 seconds. Stay tuned. Hello, and welcome to Out of the Comfort Zone. I am your villainous host, RB Kelly. Today we are playing Two Truths in the Lie, and I will tell you. Two truths, and you will tell me which one is the lie. Truth number one, this is a real mustache. Truth number two, I want you to watch my show on Tuesdays at 1 p.m. So tune in and let me know which is the truth and which is the lie. I'm RB Kelly with Out of the Comfort Zone and show up next Tuesday to see my mustache live. Hello. My name is Stephanie Mock, and I'm one of three hosts of ThinkTek-Hawaii's Hawaii Food and Farmer series. Our other hosts are Matt Johnson and Pamai Weigert, and we talk to those who are in the fields and behind the scenes of our local food system. We talk to farmers, chefs, restaurateurs and more to learn more about what goes into sustainable agriculture here in Hawaii. We are on a Thursdays at 4 p.m., and we hope we'll see you next time. Welcome back to Working Together on ThinkTek-Hawaii. I'm Cheryl Crozier-Garcia, and today we are talking Supreme Court with Jay Fidel. Hi, Jay. Hi, Cheryl. Well, yeah. Nice to be with you. It's good to be with you. So we've been talking about the Supreme Court, and one of the things that is an issue, I think in a lot of people's minds, is that unlike other judgeships in other places on the continental U.S., the Supreme Court is not elected. They are appointed and then confirmed by the Senate. So if we don't like decisions that the Supreme Court is making on our behalf, what's the fix? They serve for life. They're not elected. There is no fix. That's the problem here. There's nothing you can do about it. They make a decision, and it's final, final, final. I suppose the legislature, the Congress, can override some decisions, and in some cases I suppose you'd need a constitutional amendment to override some decisions. But there's not too much you can do. And I suppose the impeachment process might apply if a Supreme Court justice acted badly. That hasn't happened, as far as I know. So what we have here is finality, huge finality. What about using the power of the ballot to bring about some change? I mean, bear in mind, it was President Bush I that nominated Clarence Thomas, and then he was confirmed. And then it was George W. Bush that made additional appointments, Chief Justice Roberts, who incidentally has a Hawaii connection via the Rice v. Cayetano decision, and then others—President Obama nominated Justice Kagan and so-to-might-was. Well, that raises an interesting question, that you have all these comings and goings. They do die. They do, like Kennedy, they do retire. And so maybe you could say that if the decision was bad, look, the case of Roe v. Wade. It was the law. Even Kavanaugh said it's settled law. I think that was a twist of phrase. I think that was a lawyer's tricky remark when he said that. It's settled law until it's unsettled law, then it's not settled law anymore. You know, don't fool with us, Judge, but the fact is that if you have a court that adopts one rule and then the nature of the court changes, who knows? Maybe they change their minds, their philosophies. Who knows? Some of them die or retire. And we have new judges of a different inclination, then they could actually reverse themselves. They could reverse a precedent that they made earlier. I guess that's happened once in a while. Oh, sure, Dred Scott. It could happen now. Sure. Well, the Dred Scott decision that said that slaves who had left the slave states and had run away could be returned to their owners if they were discovered outside. That's right. And that was overturned. So there have been cases. There have been cases, maybe some famous cases, where the law has changed sometimes for the better. In the case of Roe v. Wade, in my opinion, a change now to repeal Roe v. Wade essentially would be a bad change. So yeah, I guess there is some relief possible if you don't like what they did in a given case, to wait your time, see changes of opinion, see changes of judges and hope for a change or maybe be afraid of a change in the law. Really? Or pray to age out before that law affects you? Well, that was one of the points that we were going to talk about. People here in Hawaii were about 5,000, 6,000 miles away from all of this. And although we see it on television, we don't think much about how it's going to affect us, but it is going to affect us. Everything that court does has an effect directly or indirectly on us. And I think if this is as remarkable an appointment as you might think, as I think, a lot of people think, then it will definitely affect us. I mean, just Roe v. Wade will by itself. Hawaii was one of the first states, if not the first state, to allow abortions legally. If they repeal Roe v. Wade, they'll be over. And... Well, no, because we'd still have state law that says that abortion is legal. I suppose so. We'll see what happens. We'll see the kind of case that comes up, and we'll see what they do with it. Right, because I don't remember exactly what the circumstance was at the time, but Hawaii was one of the first, if not the first. All I'm saying is that we see it as very distant and not affecting us, but it does affect us. And it will continue to affect us. Well, and I think if we look at Roe v. Cayetano, certainly Justice Robert's decision, again, it was an appeals court on the continental U.S., but it affects the native Hawaiian community. And indeed, all of us who are voters, every time we go to the ballot box, you know, it used to be, if you were not a member of the Kanaka-Maoli community, you could not vote for OHA in OHA elections. But now everybody can, because Justice Robert says that to deny someone the right to vote based on race or racial affiliation is not legal. Yeah, but there are other, you know, that's a state issue that somehow has federal, you know, implications. But there are all kinds of national issues where we're also affected by the, you know, environmental issues, immigration issues, all those things that Trump is pulling the wings out of lately, if the Supreme Court, you know, as it is now constituted, confirms what he's doing, that'll affect us, it'll affect our, you know, it is affecting our laws, whatever Congress does, because of supremacy, but what the Supreme Court does will also affect us in ways that go beyond just issues that are relevant in this state, national issues that have an effect on our state. So I think we can look forward to seeing a new time. Yeah. I just, like I said, I remember having a conversation with a good, good friend of mine who was actually my faculty mentor at university way, way back in the day, and I asked him what he thought about all of this. And he had been a Vietnam-era veteran, and so he just, he said something to the effect of, I'm so sorry now that I ever went to war, because everything I thought I was fighting for has essentially been kicked to the curb. And I asked him, I said, well, aren't you glad to be your age then, because a lot of the laws that are coming forward maybe are not going to affect you as much. And he said, well, that's true for me, but I've got kids. The generational issue is really important, because the old guys, they see, you know, a limited life going forward, they're not going to be around to really be affected in a profound way over a long period of time, although, you know, social security is at risk, Medicare, Medicaid is at risk, all that stuff is at risk. I don't think people realize how much at risk those things are, as well as all these other social programs, not only from Trump, but from the court as well. I guess what I'm thinking though is that the young people, the millennials, the people who are just coming into the electorate, in the 30s and the 40s and the 50s, do they fully understand that they are going to be affected, that their lives are going to be affected for a longer period and maybe in more profound ways, and that they have a duty to vote? In Hawaii, we don't seem to put that together. We have a very low voting rate, and of course, it's not that we can do that much out here, you know, with our votes, our delegation is our delegation, that's what it is. We don't have that much effect on federal legislation beyond that. But you know, it seems to me that these young people, it's their world, it's their world at stake, it's their future and the future of their children at stake, and if they want to fix this, they've got to rise up, or their lives will be affected in ways more profoundly than the way our lives—I'm older than you—the way our lives will be affected. Not that much older. That's true. I agree with you, but I also think that how we encourage the younger generation to rise up matters. We remember, say, the 2016 protests right around the time of the inauguration in 2017, there were more, and now we're seeing even more people taking to the streets to protest this most recent Supreme Court nomination and confirmation, et cetera. But the reality is, taking it to the street doesn't do much. Taking it to the ballot box, that's where it happens. And it's kind of sad to me that millennials and Generation Z coming up now are more motivated by what Taylor Swift says than by what they read about in the newspaper or via whatever news media they follow and what they're hearing from our government. It's frightening to me. It's frightening in the sense that they're not going to be there to protect the democracy. They're going to be thinking of other things. And when the rubber meets the road, we'll have a dictatorship or worse. And that's very troubling. And how do you get back from that? This is a result of an incomplete education for 30, 40 years. How do you fix that? Well, you need 30, 40 years to fix it if you start teaching these things again. So I think what we have is a really profound systemic problem that has to be addressed. And this government's not going to address it. It's just you and me. And my final point on that is the press. The press is more important to us now than it has ever been. Reading, thinking, participating in public conversation is so important now. If we don't do that, we will lose it. Just the thing about you mentioned the protests around the time of the inauguration, it's old. We've been distracted 50 times since then. It hasn't happened again. Do we not care? So the point is that somebody has got to be our institutional memory. It's got to tell us about what's going on in the White House. It's got to have those op-ed pieces that we saw a couple of weeks ago that tell us all of the things that are happening in the White House and not happening in the White House. And unless we follow it and they have to help us, the press has to help us, we will become just objects of distraction, which is the worst thing we can be. Yeah. So the thing too, we need to make sure that we're getting a balanced news coverage. We can't only be listening to people whose opinions we like. So I probably should be paying equal attention to Rachel Maddow and the folks at Fox News. I have trouble doing that, honestly. The Fox News folks? Yeah. Because once I conclude that a news media is lying to me, I have trouble watching it because I don't want to feel that I'm going to get sucked into a lie. So I have to have confidence in the news media. Right. And the news media is supposed to be a bunch of professionals, but when they come out and regularly give you misinformation, that's a real problem from our democracy. For the purpose of maintaining our democracy, we really must rely on the press and the press must see themselves as professional and they should not affirmatively go around giving us misinformation. The penalty we will all pay for that is huge. Yeah. That's true. But ultimately, it's time for us to end. So Jay Fidel, thank you for joining us again today. You know, folks out there watching, we all need to vote. We need to make our voices heard and the best place to do that is in the ballot box. So we need to inform ourselves. We can't take it for granted that the news media or others will do it for us. We need to be informed and then we need to vote in an informed manner. That's all the time we have today on Working Together on Think Tech Hawaii. I'm Cheryl Crozier-Garcia and we will be back in two weeks. Till then, take care.