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Transcript

A Natural 20 · The Schmidt Show PDX

• 0:00
  [music]
• 0:26
  SPEAKER_00: Welcome back.
• 0:29
  SPEAKER_00: I'm Mike Schmidt,
• 0:29
  SPEAKER_00: former Multnomah County district attorney,
• 0:31
  SPEAKER_00: and currently against my better judgment,
• 0:34
  SPEAKER_00: deep in draft preparation for five different fantasy football leagues this year.
• 0:40
  SPEAKER_00: It's kind of a problem.
• 0:42
  SPEAKER_00: And of course, I am your hopefully favorite part-time podcaster.
• 0:47
  SPEAKER_00: Today, I have a real honor and privilege.
• 0:50
  SPEAKER_00: I am sitting down with a sitting justice of the Oregon Supreme Court.
• 0:55
  SPEAKER_00: My guests went from public He's also a teacher of Oregon Constitutional
• 1:13
  SPEAKER_00: We are going to cover a lot of ground today.
• 1:20
  SPEAKER_00: What privacy actually means anymore in a world of license plate readers and cameras
• 1:25
  SPEAKER_00: and data brokers.
• 1:26
  SPEAKER_00: Whether Oregon's Constitution can protect rights the federal government is backing away from.
• 1:31
  SPEAKER_00: And whether that old judges just call balls and strikes line still holds up.
• 1:37
  SPEAKER_00: And then finally,
• 1:38
  SPEAKER_00: whether the way we elect or really sometimes don't elect if appointed,
• 1:43
  SPEAKER_00: our judges is quietly one of the least examined parts of our local democracy.
• 1:49
  SPEAKER_00: This is Justice Bronson James.
• 1:52
  SPEAKER_00: Let's get into it.
• 2:08
  SPEAKER_00: Welcome to the podcast, Bronson James, Justice James of the Oregon Supreme Court.
• 2:14
  SPEAKER_00: Thank you so much for having me.
• 2:15
  SPEAKER_00: It's great to be here.
• 2:16
  SPEAKER_00: I am so excited.
• 2:17
  SPEAKER_00: First of all, I don't know.
• 2:20
  SPEAKER_00: You know, I'm a connoisseur of podcasts.
• 2:23
  SPEAKER_00: I listen to quite a few of them.
• 2:25
  SPEAKER_00: I don't know that I recall ever hearing a justice of any Supreme Court, state, federal.
• 2:31
  SPEAKER_00: I mean, maybe it happens.
• 2:32
  SPEAKER_00: I'm sure it does.
• 2:33
  SPEAKER_00: But this seems kind of a rare opportunity
• 2:35
  SPEAKER_01: for
• 2:36
  SPEAKER_00: me, for me.
• 2:39
  SPEAKER_01: We do occasionally come out of our monastic conclaves and talk.
• 2:48
  SPEAKER_01: Probably not as often as we should,
• 2:49
  SPEAKER_01: really, because judges are public servants, public officials.
• 2:55
  SPEAKER_01: And so I think it's great to avail ourselves of opportunities to get out in front of
• 3:02
  SPEAKER_01: the public and And respond to questions.
• 3:07
  SPEAKER_00: You know, I couldn't agree more.
• 3:08
  SPEAKER_00: I so appreciate it.
• 3:09
  SPEAKER_00: And we'll get into this.
• 3:12
  SPEAKER_00: But, you know, I frequently hear from friends and they're just like, I don't know.
• 3:15
  SPEAKER_00: I mean, I don't really know much about judges.
• 3:17
  SPEAKER_00: Like, what are they?
• 3:18
  SPEAKER_00: What is it like?
• 3:18
  SPEAKER_00: What are they really doing?
• 3:20
  SPEAKER_00: And so I'm excited to get into that.
• 3:22
  SPEAKER_00: But before we dive down that rabbit hole, I want to I want to out you a little bit.
• 3:27
  SPEAKER_00: Sure.
• 3:27
  SPEAKER_01: This is this is a little bit of an ominous way to start.
• 3:31
  SPEAKER_01: No, I know.
• 3:32
  SPEAKER_01: Yeah.
• 3:34
  SPEAKER_00: Most of our listeners probably don't know this,
• 3:38
  SPEAKER_00: but I'm told from sources,
• 3:41
  SPEAKER_00: reliable sources, that you are completely down to crush epic RPGs.
• 3:48
  SPEAKER_00: I hear that you have at least played the Mass Effect trilogy, other things.
• 3:54
  SPEAKER_00: I heard you beat them all.
• 3:55
  SPEAKER_00: Is that accurate?
• 3:56
  SPEAKER_01: That is not accurate.
• 3:58
  SPEAKER_01: I am an acknowledged Renaissance geek.
• 4:05
  SPEAKER_01: I enjoy all things in the sort of nerd spectrum.
• 4:19
  SPEAKER_01: The sleeve of comic book art tattoos that I wear.
• 4:24
  SPEAKER_01: I love video games, any form of game.
• 4:30
  SPEAKER_01: Probably one of my proudest accomplishments is about three years ago now,
• 4:40
  SPEAKER_01: I had a group of clerks appear in my doorway at the court and they said, we...
• 4:48
  SPEAKER_01: We're thinking that you might be interested in running a Supreme Court D&D campaign.
• 4:59
  SPEAKER_00: I just need to set this up a little bit.
• 5:02
  SPEAKER_00: As a lawyer, myself,
• 5:04
  SPEAKER_00: and going up through the ranks and everything,
• 5:06
  SPEAKER_00: and it's like,
• 5:07
  SPEAKER_00: you know,
• 5:08
  SPEAKER_00: especially you're out of law school,
• 5:09
  SPEAKER_00: you're doing all this stuff, and everyone's just like, judge, your honor, justice.
• 5:13
  SPEAKER_00: I can't imagine the nerve that these individuals had to work up to have the...
• 5:19
  SPEAKER_00: We were just hoping that maybe you would, I don't know, you seem
• 5:22
  SPEAKER_01: like, ah...
• 5:25
  SPEAKER_01: I agree.
• 5:25
  SPEAKER_01: It was commendable exercise in courage.
• 5:31
  SPEAKER_01: But my response was,
• 5:33
  SPEAKER_01: you have absolutely pegged me correctly,
• 5:37
  SPEAKER_01: at which point we started and is still ongoing,
• 5:40
  SPEAKER_01: to the best of my knowledge, the only Oregon Supreme Court D&D campaign.
• 5:47
  SPEAKER_01: That's incredible.
• 5:50
  SPEAKER_01: And I take a lot of pride in that.
• 5:55
  SPEAKER_01: You know,
• 5:57
  SPEAKER_01: back in the day,
• 5:58
  SPEAKER_01: back in the 40s, there's a couple of great books on this, but there was this...
• 6:05
  SPEAKER_01: Underground poker game in Washington, D.C. And Roosevelt would play.
• 6:11
  SPEAKER_01: Several of the justices from the U.S. Supreme Court would play.
• 6:14
  SPEAKER_01: Senators, congressmen.
• 6:18
  SPEAKER_01: And there's amazing stories about what would occur there.
• 6:24
  SPEAKER_01: And I dream of a world where there is this sort of underground D&D game
• 6:33
  SPEAKER_01: And I think Oregon can make this happen.
• 6:36
  SPEAKER_00: Well, I'm visualizing this.
• 6:39
  SPEAKER_00: This is incredible.
• 6:40
  SPEAKER_00: I'm visualizing this.
• 6:42
  SPEAKER_00: We need to commission a very legitimate artist, and we're going to do a...
• 6:49
  SPEAKER_00: Playing like dogs playing poker.
• 6:51
  SPEAKER_01: Yes.
• 6:52
  SPEAKER_00: Except for, you know, and which has been remade a thousand times with Elvis and Barack Obama.
• 6:57
  SPEAKER_00: And we're going to do that.
• 6:58
  SPEAKER_00: We need to do that.
• 6:59
  SPEAKER_00: Needs to be actually Governor Kotech,
• 7:01
  SPEAKER_00: if you're listening and or if I get a chance to talk to you in the future,
• 7:05
  SPEAKER_00: I'm going to push this.
• 7:08
  SPEAKER_00: You know, that needs to be the gubernatorial portrait, I think.
• 7:11
  SPEAKER_00: Let's just go for it.
• 7:12
  SPEAKER_00: I mean, that sounds great.
• 7:14
  SPEAKER_00: If not, it should be in the dungeon room.
• 7:17
  SPEAKER_01: Oh, yeah.
• 7:17
  SPEAKER_01: I mean, maybe it's not hung in the main hall.
• 7:20
  SPEAKER_00: Yeah, that's fair.
• 7:21
  SPEAKER_00: The close-up will be, but the zoom out will actually be.
• 7:26
  SPEAKER_00: Well, that is incredible.
• 7:29
  SPEAKER_00: Thank you for that insight.
• 7:30
  SPEAKER_00: I love that.
• 7:31
  SPEAKER_00: I know a lot of folks who listen to the show are going to really appreciate
• 7:34
  SPEAKER_00: that detail,
• 7:35
  SPEAKER_00: but it really goes to show that you are not a automaton or a robot or as some judges
• 7:44
  SPEAKER_00: or justices have said in the past,
• 7:46
  SPEAKER_00: I'm just there to, you know, read and call balls and strikes.
• 7:50
  SPEAKER_00: You're a human being who brings human being things.
• 7:54
  SPEAKER_00: What else should people know about Bronson James?
• 7:57
  SPEAKER_00: Tell us a little bit about your origin story.
• 7:59
  SPEAKER_01: I graduated Reed in 94, right?
• 8:01
  SPEAKER_01: So, you know, kind of the sort of dot-com, you know, boom that's happening right there.
• 8:09
  SPEAKER_01: And basically anybody could go into the technology sector at that point.
• 8:14
  SPEAKER_01: And...
• 8:17
  SPEAKER_01: I was kind of recruited, offered a job in that sort of emerging technology sector.
• 8:24
  SPEAKER_01: And I did that for a number of years and worked around the world doing a lot of work
• 8:31
  SPEAKER_01: on data, data privacy, internet security at the time.
• 8:39
  SPEAKER_01: But if anybody,
• 8:40
  SPEAKER_01: any of your listeners attended Reed or are familiar with Reed,
• 8:45
  SPEAKER_01: Reed does an exceptional job of instilling in its students that if you do not go on
• 8:52
  SPEAKER_01: to earn some sort of a PhD, you have essentially
• 8:55
  SPEAKER_00: failed the institution.
• 8:57
  SPEAKER_01: So I came away with a strong pressure that I had to go do that.
• 9:03
  SPEAKER_00: I love that.
• 9:03
  SPEAKER_00: It's not parents imposed.
• 9:04
  SPEAKER_00: Oh, no, no, no.
• 9:05
  SPEAKER_00: It's Reed's institutionally imposed.
• 9:07
  SPEAKER_01: Yes.
• 9:09
  SPEAKER_01: And so I had this growing sense of guilt
• 9:12
  SPEAKER_01: that I had not been fulfilling my obligation to the institution.
• 9:19
  SPEAKER_01: And so I left and I thought briefly about going to get like a doctorate in history.
• 9:26
  SPEAKER_01: But employment seemed like a good game at the end of it.
• 9:31
  SPEAKER_01: And I wasn't sure what I was going to do with my doctorate in history.
• 9:34
  SPEAKER_01: So I went to law school and Not for any particular reason.
• 9:41
  SPEAKER_01: I had no lawyers in the family.
• 9:43
  SPEAKER_00: Didn't really know much of anything about law school.
• 9:45
  SPEAKER_00: Just seemed like the next professional thing to do.
• 9:47
  SPEAKER_01: It seemed like a way to maybe assuage my guilt at letting down my alma mater while
• 9:58
  SPEAKER_01: at the same time possibly translating this into employment at the end.
• 10:04
  SPEAKER_00: Which is hilarious, right?
• 10:05
  SPEAKER_00: Because had you stayed in the technology field,
• 10:08
  SPEAKER_00: the emerging.com, I mean, you could be Mark Zuckerberg at this point.
• 10:12
  SPEAKER_01: Oh, yeah.
• 10:13
  SPEAKER_01: I mean, don't get me wrong.
• 10:14
  SPEAKER_01: It was a disastrous financial decision.
• 10:18
  SPEAKER_01: Because I came out of law school.
• 10:21
  SPEAKER_01: I briefly went back into the technology sector doing privacy work.
• 10:27
  SPEAKER_01: But law school...
• 10:30
  SPEAKER_01: As you know, law school sort of changes you.
• 10:32
  SPEAKER_00: Yeah, it does.
• 10:33
  SPEAKER_00: Good and bad.
• 10:35
  SPEAKER_01: I had done work at the public defender's office and then it kind of hooked me.
• 10:38
  SPEAKER_01: So I basically left law school and went to work as a public defender
• 10:44
  SPEAKER_01: a vastly different financial level than what I had been working
• 10:49
  SPEAKER_01: in corporate America.
• 10:51
  SPEAKER_00: Yeah, no doubt.
• 10:52
  SPEAKER_00: So law school was a terrible
• 10:54
  SPEAKER_01: financial decision for me,
• 10:55
  SPEAKER_01: but absolutely the right decision as far as Happiness and satisfaction.
• 11:03
  SPEAKER_01: All of my early jobs before graduating college were all food service.
• 11:11
  SPEAKER_01: I kind of love what food service jobs gave me.
• 11:18
  SPEAKER_00: You learn a lot.
• 11:20
  SPEAKER_00: I could not agree more.
• 11:22
  SPEAKER_00: And I think a lot of people who have been through food service share this.
• 11:26
  SPEAKER_00: I mean, having to deal with customers.
• 11:28
  SPEAKER_00: Yep.
• 11:30
  SPEAKER_00: I have a good friend of mine.
• 11:31
  SPEAKER_00: He was a server.
• 11:32
  SPEAKER_00: He went through everything like that.
• 11:33
  SPEAKER_00: The guy leaves and, you know, tipping culture, everything is a big thing.
• 11:37
  SPEAKER_00: I mean, he puts a 30 to 40% tip on everything because he's like,
• 11:40
  SPEAKER_00: no, I know what they were going through.
• 11:42
  SPEAKER_00: I know what it's like.
• 11:43
  SPEAKER_00: I was there.
• 11:44
  SPEAKER_00: It sucked.
• 11:45
  SPEAKER_00: I see other customers.
• 11:46
  SPEAKER_00: It's like and I remember, you know, I had.
• 11:50
  SPEAKER_00: When I was working at Arby's,
• 11:52
  SPEAKER_00: the front counter, I'd have very well-meaning, very nice people come up to me.
• 11:56
  SPEAKER_00: I'm in high school.
• 11:58
  SPEAKER_00: I'm a senior in high school, right?
• 12:00
  SPEAKER_00: I'm going to go to college.
• 12:01
  SPEAKER_00: I'm doing all the things.
• 12:01
  SPEAKER_00: And very well-meaning people come up to me and they'd be like, you seem like a bright young man.
• 12:06
  SPEAKER_00: Why are you wasting your life here at Arby's?
• 12:08
  SPEAKER_00: You ought to go to college.
• 12:09
  SPEAKER_00: Have you considered that?
• 12:10
  SPEAKER_00: And I'm like, no, I hadn't.
• 12:12
  SPEAKER_00: Would you like curly fries or horsey sauce or what else can I?
• 12:15
  SPEAKER_00: Yes, I did.
• 12:16
  SPEAKER_00: I thought of that.
• 12:17
  SPEAKER_00: I thought of college.
• 12:19
  SPEAKER_00: Just dealing with people.
• 12:20
  SPEAKER_01: You know, I heard the same things.
• 12:23
  SPEAKER_01: But, you know, I think it's something that needs to be said, too.
• 12:28
  SPEAKER_01: Something that always bugs me about comments like that is the notion that...
• 12:36
  SPEAKER_01: Yeah.
• 12:36
  SPEAKER_01: Right.
• 12:36
  SPEAKER_01: Yeah.
• 12:53
  SPEAKER_01: In any way looked down upon or degraded, but celebrated just like any other things.
• 13:00
  SPEAKER_01: There's a lot of things that you can do and make a lot more money
• 13:04
  SPEAKER_01: that doesn't serve your community as much as working in a restaurant.
• 13:09
  SPEAKER_00: Hey, Reed College,
• 13:10
  SPEAKER_00: if you're listening,
• 13:11
  SPEAKER_00: stop pressuring your students to go out and get master's degrees.
• 13:16
  SPEAKER_00: They are delivering to their community.
• 13:18
  SPEAKER_00: All right.
• 13:18
  SPEAKER_00: So at some point you go to law school,
• 13:21
  SPEAKER_00: you get into the public defender's office and some point along the way,
• 13:27
  SPEAKER_00: you're like, you know what?
• 13:28
  SPEAKER_00: I've been talking to judges for a long time.
• 13:31
  SPEAKER_00: Maybe I want to be a judge.
• 13:33
  SPEAKER_00: Was there a moment or a thing or what kind of made you want to become a judge?
• 13:38
  SPEAKER_00: Sure.
• 13:39
  SPEAKER_01: Um, I, uh,
• 13:42
  SPEAKER_01: by this point I had owned my own practice for a number of years
• 13:48
  SPEAKER_01: and I personally found owning a small business extremely stressful,
• 13:54
  SPEAKER_01: like many small business owners do.
• 13:57
  SPEAKER_01: And so that was an aspect of it.
• 14:02
  SPEAKER_01: Um, it was also that I had done, you know, What I will call advocate work, right?
• 14:10
  SPEAKER_01: As a lawyer, you represent a client.
• 14:13
  SPEAKER_01: You make arguments that benefit that client.
• 14:17
  SPEAKER_01: Even if you know in your mind,
• 14:20
  SPEAKER_01: this might benefit my client,
• 14:22
  SPEAKER_01: but I'm not sure the law or society is benefited by me making this argument,
• 14:28
  SPEAKER_01: but it serves my client's interest.
• 14:30
  SPEAKER_01: That's the job of the lawyer.
• 14:31
  SPEAKER_01: That's what the lawyer is supposed to do.
• 14:34
  SPEAKER_01: Ethically.
• 14:34
  SPEAKER_01: Yeah, absolutely.
• 14:35
  SPEAKER_01: You have to.
• 14:36
  SPEAKER_01: You have to.
• 14:38
  SPEAKER_01: But I had gotten to the point where I was like,
• 14:40
  SPEAKER_01: I would like the freedom to be able to consider bigger issues,
• 14:45
  SPEAKER_01: not just from one person's perspective, but like what would be better systemically.
• 14:53
  SPEAKER_01: And that seemed like the transition.
• 14:56
  SPEAKER_01: So I applied to be a Multnomah County judge when an opening came up.
• 15:05
  SPEAKER_01: And I was extremely fortunate to be selected for that and then became
• 15:11
  SPEAKER_01: a Multnomah County Circuit Court judge for a couple of years.
• 15:15
  SPEAKER_00: Yeah.
• 15:16
  SPEAKER_00: What about so you had this idea of.
• 15:20
  SPEAKER_00: Of what the job was going to be like.
• 15:22
  SPEAKER_00: And then you got the job, right?
• 15:24
  SPEAKER_00: You're the dog that caught the car.
• 15:26
  SPEAKER_00: And so what about the job of being a judge?
• 15:30
  SPEAKER_00: Maybe in surprising to you,
• 15:33
  SPEAKER_00: but you're a lawyer,
• 15:34
  SPEAKER_00: but also maybe that people just listening to this,
• 15:37
  SPEAKER_00: they're not lawyers or in the legal profession would maybe find surprising.
• 15:40
  SPEAKER_00: So I think we all have this TV image in our brains of being a judge.
• 15:46
  SPEAKER_00: So what did you find surprising?
• 15:48
  SPEAKER_00: What do you think folks would find surprising?
• 15:50
  SPEAKER_01: Well, so I have had the great fortune of being a judge now at every level of
• 15:57
  SPEAKER_00: Oregon's courts.
• 15:58
  SPEAKER_01: So I started the trial court.
• 16:00
  SPEAKER_01: Then I went to the court of appeals, which is sort of the mid-level court.
• 16:04
  SPEAKER_01: And now at the Oregon Supreme Court, all three are very different jobs.
• 16:11
  SPEAKER_01: The trial court is the closest to being what you expect for no other reason
• 16:17
  SPEAKER_01: than I'd done trial work.
• 16:20
  SPEAKER_01: I conducted trials.
• 16:21
  SPEAKER_01: I'd seen a lot of judges.
• 16:22
  SPEAKER_01: Right.
• 16:23
  SPEAKER_01: And.
• 16:25
  SPEAKER_01: The work of the trial court judge is,
• 16:27
  SPEAKER_01: I guess,
• 16:28
  SPEAKER_01: what you don't necessarily prepare for is how incredibly busy the trial court is,
• 16:34
  SPEAKER_01: how much of your day is running from one thing to the other,
• 16:38
  SPEAKER_01: to the other,
• 16:39
  SPEAKER_01: to the other, and how very limited time our circuit court judges have to...
• 16:51
  SPEAKER_01: To think or prepare for what's in front of them.
• 16:54
  SPEAKER_01: It's very common to go into a hearing as a trial judge and not even like, why am I here?
• 17:01
  SPEAKER_01: What is this case about?
• 17:03
  SPEAKER_01: What do you lawyers need me to do?
• 17:06
  SPEAKER_01: And so it's very much quick reaction, thinking on your feet.
• 17:13
  SPEAKER_01: Trial court judges to me are amazing in their ability to Give parties answers
• 17:23
  SPEAKER_01: and decisions so quickly and how so often that very quick answer turns out
• 17:31
  SPEAKER_01: to be right.
• 17:32
  SPEAKER_00: So they do an amazing job.
• 17:36
  SPEAKER_01: Appellate work was probably the most.
• 17:41
  SPEAKER_01: Unlike what I expected.
• 17:43
  SPEAKER_00: Yeah.
• 17:46
  SPEAKER_01: And the.
• 17:48
  SPEAKER_01: There's a number of reasons for that.
• 17:51
  SPEAKER_00: I'm not,
• 17:52
  SPEAKER_00: I think I'd be getting very wonky inside baseball
• 17:55
  SPEAKER_01: if we went into it much,
• 17:56
  SPEAKER_01: much further.
• 17:57
  SPEAKER_00: Yeah.
• 17:57
  SPEAKER_00: Um, but just for people listening,
• 17:59
  SPEAKER_00: you know, uh,
• 18:00
  SPEAKER_00: who may not be familiar in general,
• 18:02
  SPEAKER_00: you have the circuit courts,
• 18:03
  SPEAKER_00: which that's the, that's the front door to the judicial system.
• 18:06
  SPEAKER_00: A hundred percent.
• 18:07
  SPEAKER_00: And so, you know,
• 18:08
  SPEAKER_00: that's where your first, if it's a state matter, you're filing your, your suits.
• 18:11
  SPEAKER_00: If you're going to sue somebody or you're in a,
• 18:13
  SPEAKER_00: in a lawsuit or if the criminal system, of course, that's where you start.
• 18:17
  SPEAKER_00: Now you get to the court of appeals.
• 18:19
  SPEAKER_00: The job is really to look at the work that was done at the front door.
• 18:25
  SPEAKER_00: And like you say, you got judges who are moving from matter to matter to matter.
• 18:29
  SPEAKER_00: They're making quick decisions based on their experience and everything else
• 18:33
  SPEAKER_00: that they've, they've, but they're moving quick.
• 18:36
  SPEAKER_00: Now you're at the review level at the appeals court,
• 18:40
  SPEAKER_00: but we have one more level of review in Oregon and I think is pretty normal
• 18:44
  SPEAKER_00: for most states.
• 18:45
  SPEAKER_00: Yes, and that would be the Supreme Court.
• 18:47
  SPEAKER_01: And both of those courts are not doing the work of trial courts, right?
• 18:52
  SPEAKER_01: They're...
• 18:53
  SPEAKER_01: They're looking at what a trial court did,
• 18:56
  SPEAKER_01: and they're looking at those decisions made along the way.
• 19:00
  SPEAKER_01: This piece of evidence was in.
• 19:02
  SPEAKER_01: This piece was out.
• 19:03
  SPEAKER_01: You know,
• 19:03
  SPEAKER_01: we see this all the time in objection,
• 19:05
  SPEAKER_01: Your Honor, and the sustained, you know, or overruled.
• 19:09
  SPEAKER_01: Those moments are what appellate courts look at.
• 19:14
  SPEAKER_01: And there's only usually a few of them that are brought to
• 19:17
  SPEAKER_01: the appellate court's attention,
• 19:19
  SPEAKER_01: and they're asked, was that right or wrong legally under the law?
• 19:23
  SPEAKER_01: And if it was wrong, do we need to do this case over?
• 19:28
  SPEAKER_01: Or can we say, yeah, you were wrong, but
• 19:31
  SPEAKER_00: we don't think it really harmed the overall case?
• 19:34
  SPEAKER_00: Didn't really change anything.
• 19:36
  SPEAKER_00: Yeah.
• 19:37
  SPEAKER_01: And so that's what the appellate courts are doing.
• 19:39
  SPEAKER_01: It's a more detached process.
• 19:44
  SPEAKER_01: Trial courts, you have witnesses.
• 19:46
  SPEAKER_01: People are taking the stand.
• 19:47
  SPEAKER_01: They're testifying.
• 19:47
  SPEAKER_01: You don't have that in appellate courts.
• 19:49
  SPEAKER_01: Right.
• 19:51
  SPEAKER_01: It's a more academic process.
• 19:54
  SPEAKER_01: It is certainly a more contemplative process.
• 19:59
  SPEAKER_01: The circuit court judges very correctly will remind appellate judges,
• 20:04
  SPEAKER_01: I made that decision in 30 seconds.
• 20:07
  SPEAKER_01: You've had six months to think about it.
• 20:09
  SPEAKER_01: Yeah, exactly.
• 20:12
  SPEAKER_00: Well, and it must be.
• 20:13
  SPEAKER_00: And I think this can be true at the at the circuit court level as well.
• 20:17
  SPEAKER_00: But the appellate court, I mean,
• 20:19
  SPEAKER_00: you like you say,
• 20:19
  SPEAKER_00: you're reviewing decisions that were made based on the evidence that
• 20:24
  SPEAKER_00: that you must sometimes just be like wanted to pull your hair out.
• 20:27
  SPEAKER_00: Like, why don't I have this evidence?
• 20:29
  SPEAKER_00: Like, why didn't we hear from this person?
• 20:31
  SPEAKER_00: What is that?
• 20:32
  SPEAKER_00: Like, that must be incredibly frustrating sometimes.
• 20:35
  SPEAKER_01: So it is at all levels.
• 20:38
  SPEAKER_01: You can be overseeing a trial and,
• 20:42
  SPEAKER_01: you know,
• 20:43
  SPEAKER_01: every judge was once an attorney and every attorney likes to think that the way
• 20:47
  SPEAKER_01: that they would have tried
• 20:48
  SPEAKER_00: the case is the best way to try the case.
• 20:51
  SPEAKER_00: That's why I never left attorneys on my juries.
• 20:53
  SPEAKER_00: Yeah.
• 20:55
  SPEAKER_01: And so you can sit as a trial judge and watch a trial unfold and be like,
• 20:59
  SPEAKER_01: wow, that's not what I would have done, right?
• 21:02
  SPEAKER_01: Same thing with appellate judges.
• 21:04
  SPEAKER_01: You can be like, this is the record that I have, but wow, there's some stuff missing, right?
• 21:11
  SPEAKER_01: I...
• 21:13
  SPEAKER_01: I've used this analogy before when talking to people.
• 21:16
  SPEAKER_01: I think it's very inept.
• 21:18
  SPEAKER_01: I like to say that judges are like vampires.
• 21:23
  SPEAKER_01: They sit at the threshold, but you must invite them in.
• 21:28
  SPEAKER_01: And it's the lawyers that invite them in.
• 21:31
  SPEAKER_01: They can't invite themselves.
• 21:34
  SPEAKER_01: That would be wrong.
• 21:35
  SPEAKER_00: I have a whole new framing for how I think of things now that is more frightening,
• 21:41
  SPEAKER_00: but I like it.
• 21:43
  SPEAKER_01: And that can be a frustration, right?
• 21:46
  SPEAKER_01: As a judge is to see something that
• 21:51
  SPEAKER_01: you think might not be how it should be,
• 21:54
  SPEAKER_01: but no lawyer has invited you in to get involved.
• 22:00
  SPEAKER_01: And we don't want a system where judges are out there just doing it on their own, right?
• 22:09
  SPEAKER_00: Mm-hmm.
• 22:10
  SPEAKER_01: And so it's important that judges don't inject themselves that way.
• 22:12
  SPEAKER_01: But as a judge...
• 22:39
  SPEAKER_01: It can be sometimes frustrating when you sit there at the threshold and you're like,
• 22:43
  SPEAKER_01: let me in, invite me in, and no invitation comes.
• 22:46
  SPEAKER_00: Vampire James, let me in.
• 22:50
  SPEAKER_00: Well, you like being a justice on the Supreme Court?
• 22:53
  SPEAKER_00: You enjoy that?
• 22:55
  SPEAKER_01: I do.
• 22:55
  SPEAKER_01: I also loved being at the trial court, right?
• 23:02
  SPEAKER_01: I still go back.
• 23:04
  SPEAKER_01: I try to try a couple of cases every year.
• 23:07
  SPEAKER_01: In
• 23:09
  SPEAKER_01: fact, at the time that we're recording this next week, I'm scheduled to hear a case.
• 23:16
  SPEAKER_01: Just to...
• 23:18
  SPEAKER_01: Have that human interaction and things.
• 23:21
  SPEAKER_01: I think it's good for the soul.
• 23:23
  SPEAKER_01: But it's a great privilege to be on the Oregon Supreme Court.
• 23:28
  SPEAKER_00: Well, I want to get back and I appreciate, where I want to go next is around privacy.
• 23:35
  SPEAKER_00: So I want to start getting into some of the meat of the issues that are out there in our world.
• 23:41
  SPEAKER_00: But I love that you have a background in technology because it, I mean,
• 23:43
  SPEAKER_00: obviously kind of sets you up and has in your career set you up to consider matters
• 23:48
  SPEAKER_00: of privacy.
• 23:49
  SPEAKER_01: Yeah.
• 23:49
  SPEAKER_01: I mean, to be clear, I have a background in 90s technology, right?
• 23:54
  SPEAKER_01: And so I have a sort of archeological background of technology.
• 23:59
  SPEAKER_00: It's almost like, you know, I am an elder millennial.
• 24:03
  SPEAKER_00: I was born in 1981, right?
• 24:05
  SPEAKER_00: And so I'm in that sweet spot of very much aware of answering machines and pagers
• 24:11
  SPEAKER_00: and VHS and also, you know, grew up with AOL and then the evolution thereof.
• 24:17
  SPEAKER_00: So I feel like you're kind of in a similar spot professionally.
• 24:20
  SPEAKER_00: You've been on both sides of these things.
• 24:23
  SPEAKER_00: So I want to get, because this is such...
• 24:27
  SPEAKER_00: A huge issue.
• 24:28
  SPEAKER_00: I mean, I could pull out my phone right now and look and just look at my newsfeed
• 24:33
  SPEAKER_00: and I would see a number of articles that are relating to privacy and the big thing
• 24:41
  SPEAKER_00: that I'm thinking of that is pushing a lot of this right now.
• 24:43
  SPEAKER_00: I mean, obviously artificial intelligence is moving.
• 24:47
  SPEAKER_00: Speaking of moving technology from from where you were first involved to now.
• 24:52
  SPEAKER_00: But then we have this almost.
• 24:55
  SPEAKER_00: It's a completely comprehensive surveillance state that is evolving,
• 25:01
  SPEAKER_00: not from the state necessarily, but from corporations, from private corporations.
• 25:07
  SPEAKER_00: We have companies like Flock that are spreading across the country,
• 25:10
  SPEAKER_00: license plate readers and more.
• 25:14
  SPEAKER_00: They're not just reading license plates anymore.
• 25:17
  SPEAKER_00: And also – Palantir.
• 25:18
  SPEAKER_00: Yeah, Palantir, right?
• 25:21
  SPEAKER_00: And I can't sign the user agreement to use my iPhone that I purchased for so much money, right?
• 25:29
  SPEAKER_00: I can't use it unless I agree to give away – My privacy rights, at least to some extent.
• 25:38
  SPEAKER_00: So I think a lot of people right now,
• 25:41
  SPEAKER_00: and this isn't a left-right issue,
• 25:43
  SPEAKER_00: this is a,
• 25:44
  SPEAKER_00: you know,
• 25:45
  SPEAKER_00: everybody,
• 25:45
  SPEAKER_00: I see it in rural communities, I see it in urban communities, are struggling.
• 25:52
  SPEAKER_00: In the federal constitution,
• 25:53
  SPEAKER_00: and then we'll talk about the state constitution,
• 25:55
  SPEAKER_00: there has been found a right to privacy.
• 25:58
  SPEAKER_00: What does that even mean?
• 25:59
  SPEAKER_00: So definitely this is a very topical issue, right?
• 26:01
  SPEAKER_00: And it's going to be.
• 26:02
  SPEAKER_00: And I think one of the challenges that we particularly see in this area is
• 26:04
  SPEAKER_00: the law is a very slow moving ship.
• 26:06
  SPEAKER_00: Yes.
• 26:06
  SPEAKER_00: Right.
• 26:28
  SPEAKER_01: But the rate of our technological advancement,
• 26:33
  SPEAKER_01: I want to say that that's
• 26:34
  SPEAKER_00: Moore's law, if I'm remembering.
• 26:36
  SPEAKER_00: Right.
• 26:37
  SPEAKER_00: It's like doubling and doubling and doubling and doubling.
• 26:40
  SPEAKER_01: The rate of our technological advancement is far outstripping the ability of the law
• 26:47
  SPEAKER_01: to react in a timely way, right?
• 26:52
  SPEAKER_01: And, you know,
• 26:53
  SPEAKER_01: we are currently,
• 26:57
  SPEAKER_01: like in the federal government,
• 26:58
  SPEAKER_01: Particularly if we're talking about Fourth Amendment.
• 27:00
  SPEAKER_01: We're dealing with issues now.
• 27:05
  SPEAKER_01: And the law is our American English common law system is built on precedent.
• 27:12
  SPEAKER_01: But if we stop to think about we're talking about.
• 27:16
  SPEAKER_01: Issues of digital privacy using cases that we're talking about pen register traps
• 27:22
  SPEAKER_01: on payphones, right?
• 27:25
  SPEAKER_01: And so we're straining our
• 27:31
  SPEAKER_01: ability to analogize to the cases that came before, right?
• 27:35
  SPEAKER_00: Right.
• 27:36
  SPEAKER_00: Even more so than,
• 27:38
  SPEAKER_00: for example,
• 27:38
  SPEAKER_00: and we don't have to go down this road,
• 27:40
  SPEAKER_00: but like the Second Amendment and how that's being interpreted at the federal level.
• 27:44
  SPEAKER_00: And like, we got to go back to muskets and who was allowed to own what?
• 27:47
  SPEAKER_00: Like, what is the corollary to the way things were?
• 27:50
  SPEAKER_00: I mean, it's not apples and oranges.
• 27:52
  SPEAKER_00: I mean, it's apples and elephants.
• 27:55
  SPEAKER_01: Yeah.
• 27:55
  SPEAKER_01: Now, I mean, fortunately, and I know that I think we'll get to this.
• 28:02
  SPEAKER_01: Oregon has...
• 28:05
  SPEAKER_01: Yeah.
• 28:25
  SPEAKER_01: I love this state.
• 28:27
  SPEAKER_01: I am very parochial in my approach to the law here.
• 28:33
  SPEAKER_01: Like, I believe very much in Oregon solutions for Oregon citizens, right?
• 28:42
  SPEAKER_01: And we have in our state constitution a number of people Tools,
• 28:49
  SPEAKER_01: ways that we have interpreted the state constitution
• 28:52
  SPEAKER_01: that hopefully have positioned us as a state to be a little more nimble
• 29:00
  SPEAKER_00: as this technology changes.
• 29:03
  SPEAKER_01: Not to say that the federal courts and the federal constitution won't be able to do
• 29:09
  SPEAKER_01: that,
• 29:09
  SPEAKER_01: but they are locked into certain Ways of conceptualizing the problem
• 29:16
  SPEAKER_01: that will be challenging.
• 29:18
  SPEAKER_01: I mean, the Fourth Amendment is defined by what's called the reasonable expectation of privacy.
• 29:26
  SPEAKER_01: And your question hits at exactly that,
• 29:28
  SPEAKER_01: which is the more we live in a world where we all know everybody's got our data,
• 29:35
  SPEAKER_01: everybody's selling our data, right?
• 29:38
  SPEAKER_01: Everybody has monetized us and our lives.
• 29:43
  SPEAKER_01: Do we really have an expectation of privacy?
• 29:46
  SPEAKER_01: Yeah.
• 29:46
  SPEAKER_01: Right?
• 29:47
  SPEAKER_01: And that is a challenge under the Fourth Amendment that's tied to this notion
• 29:53
  SPEAKER_01: of expectation of privacy.
• 29:55
  SPEAKER_01: Oregon is not.
• 29:56
  SPEAKER_00: So you really, you touched on something I want to, we should just get into and tease out.
• 30:00
  SPEAKER_00: And I- This is obvious to lawyers and it probably is obvious
• 30:04
  SPEAKER_00: to anyone who's ever stopped to think about it.
• 30:08
  SPEAKER_00: But it I don't think is necessarily obvious to lay people.
• 30:13
  SPEAKER_00: There's a federal U.S. Constitution.
• 30:15
  SPEAKER_00: And I think a lot of media and everything else,
• 30:19
  SPEAKER_00: when people are talking about, oh,
• 30:21
  SPEAKER_00: the Constitution says the Constitution says that's where people's minds go is
• 30:24
  SPEAKER_00: the federal Constitution.
• 30:25
  SPEAKER_00: But every state also has a Constitution.
• 30:29
  SPEAKER_00: Yes.
• 30:30
  SPEAKER_00: And.
• 30:31
  SPEAKER_00: They were adopted at different times.
• 30:34
  SPEAKER_01: Yes.
• 30:34
  SPEAKER_00: And actually we're on the 250th anniversary of our federal constitution.
• 30:39
  SPEAKER_00: Yes.
• 30:41
  SPEAKER_00: Our state constitution, not so old.
• 30:44
  SPEAKER_00: What year?
• 30:45
  SPEAKER_00: 1859.
• 30:45
  SPEAKER_00: Thank you.
• 30:46
  SPEAKER_00: I knew you knew.
• 30:48
  SPEAKER_00: 1859.
• 30:49
  SPEAKER_00: My recollection, largely adopted from Indiana's constitution.
• 30:53
  SPEAKER_01: So modeled off a lot of Indiana's, some others.
• 31:00
  SPEAKER_01: And then there's some...
• 31:01
  SPEAKER_01: Some own Oregon secret sauce in there as well.
• 31:08
  SPEAKER_00: I'm not well versed specifically in our history,
• 31:12
  SPEAKER_00: but my understanding from reading through it a little bit was, it's great.
• 31:16
  SPEAKER_00: You come out on your covered wagon,
• 31:18
  SPEAKER_00: somebody, they're like, hey, we need a constitution because we got a state here.
• 31:21
  SPEAKER_00: Who's got a copy of one?
• 31:23
  SPEAKER_00: And they're like,
• 31:23
  SPEAKER_00: I got Indiana's and someone throws it in and they're like, yeah,
• 31:26
  SPEAKER_00: I like most of this,
• 31:27
  SPEAKER_00: but let's take a little bit of this from kind
• 31:30
  SPEAKER_01: of how it happened.
• 31:31
  SPEAKER_01: That is kind of how it happened.
• 31:32
  SPEAKER_01: Right.
• 31:34
  SPEAKER_01: We don't know a lot of kind of the founding of that because in what I often talk
• 31:45
  SPEAKER_01: about in my class with students is like a very Oregon moment.
• 31:51
  SPEAKER_01: One of the very first votes taken at the Oregon Constitutional Convention was
• 31:57
  SPEAKER_01: whether they wanted to pay for somebody to record it.
• 32:01
  SPEAKER_01: And they said no.
• 32:03
  SPEAKER_00: We don't have recording money.
• 32:05
  SPEAKER_00: We're just getting started.
• 32:07
  SPEAKER_01: And perhaps we can see
• 32:10
  SPEAKER_00: a through trend.
• 32:12
  SPEAKER_00: Oh, my God.
• 32:13
  SPEAKER_00: Can you imagine?
• 32:14
  SPEAKER_00: Hey, everyone, we're going to write a constitution.
• 32:16
  SPEAKER_00: Should we write this down?
• 32:17
  SPEAKER_00: No.
• 32:18
  SPEAKER_00: Come on, man.
• 32:19
  SPEAKER_01: We're just going to get it done.
• 32:22
  SPEAKER_01: So we know a lot, but we don't know everything that we would love to know.
• 32:26
  SPEAKER_01: And yes, it is modeled on others.
• 32:33
  SPEAKER_01: I think the first thing that people need to understand is that there is this,
• 32:40
  SPEAKER_01: I think,
• 32:40
  SPEAKER_01: a false historical notion that state constitutions are modeled off
• 32:46
  SPEAKER_01: the federal constitution.
• 32:47
  SPEAKER_01: It's actually reversed.
• 32:49
  SPEAKER_01: Right.
• 32:50
  SPEAKER_01: So when the founders of the U.S.
• 32:53
  SPEAKER_01: Constitution were drafting it,
• 32:56
  SPEAKER_01: they had models from the other colonies because those colonies had constitutions at
• 33:00
  SPEAKER_01: the time.
• 33:01
  SPEAKER_01: Right.
• 33:02
  SPEAKER_01: And so state constitutions are really the primogenitor and the sort
• 33:08
  SPEAKER_01: of primary source for this, not the other way around.
• 33:12
  SPEAKER_01: And then also when you deal with states like Oregon.
• 33:16
  SPEAKER_01: Right.
• 33:17
  SPEAKER_01: So We're, you know, 1859.
• 33:20
  SPEAKER_01: U.S. Constitution is well established at this point.
• 33:24
  SPEAKER_01: But importantly, all of those things that we think about in the Bill of Rights, right?
• 33:32
  SPEAKER_01: Under federal law at the time, none of those applied to the states.
• 33:35
  SPEAKER_01: Right.
• 33:36
  SPEAKER_01: Right.
• 33:36
  SPEAKER_01: Those only constrained federal government.
• 33:38
  SPEAKER_01: And so when the state is making its own constitution and is creating its own set
• 33:43
  SPEAKER_01: of rights, it's doing something fundamentally different.
• 33:47
  SPEAKER_01: Right.
• 33:47
  SPEAKER_01: Right.
• 34:16
  SPEAKER_01: But states can go above it.
• 34:18
  SPEAKER_01: They can build above it.
• 34:19
  SPEAKER_01: They can create rights that are more protective of civil liberties,
• 34:26
  SPEAKER_01: that are more restrictive on governmental encroachment to civil liberties than
• 34:32
  SPEAKER_01: the federal floor.
• 34:34
  SPEAKER_01: And, you know, Oregon has done that in spades.
• 34:39
  SPEAKER_00: So we started this segment talking about privacy,
• 34:43
  SPEAKER_00: and you've touched on what the federal expectation of privacy,
• 34:48
  SPEAKER_00: the law is kind of built on.
• 34:51
  SPEAKER_00: Is the Oregon Constitution's protections of privacy different?
• 34:55
  SPEAKER_01: So it is.
• 34:56
  SPEAKER_01: So first of all,
• 34:59
  SPEAKER_01: you know,
• 35:00
  SPEAKER_01: the Oregon Supreme Court has said that the concept of privacy is Is found
• 35:06
  SPEAKER_01: in multiple different pieces of the Oregon Constitution, right?
• 35:11
  SPEAKER_01: The word privacy itself doesn't appear in the Oregon Constitution.
• 35:15
  SPEAKER_01: Similar to the U.S. Constitution.
• 35:16
  SPEAKER_01: Similar to the U.S. Constitution.
• 35:18
  SPEAKER_01: But that concept, right, is found in different areas.
• 35:22
  SPEAKER_01: So, for example, the court has talked about You know, you have a right to an attorney, right?
• 35:30
  SPEAKER_01: It wouldn't be much of a right if your conversations
• 35:33
  SPEAKER_01: with your attorney could be eavesdropped on.
• 35:37
  SPEAKER_01: So there's implicit in that is a notion that there's privacy, right?
• 35:42
  SPEAKER_01: And so that's kind of where we find it.
• 35:45
  SPEAKER_01: One of the key ones,
• 35:46
  SPEAKER_01: so we have the Fourth Amendment in the United States Constitution,
• 35:50
  SPEAKER_01: which And the equivalent in Oregon would be Article I,
• 35:55
  SPEAKER_01: Section 9 of the Oregon Constitution.
• 35:57
  SPEAKER_01: But it's written differently, right?
• 36:00
  SPEAKER_01: So unlike the Fourth Amendment,
• 36:02
  SPEAKER_01: which says,
• 36:03
  SPEAKER_01: you know,
• 36:04
  SPEAKER_01: person shall be,
• 36:05
  SPEAKER_01: you know,
• 36:05
  SPEAKER_01: secure in their papers and effects, right, against unreasonable search and seizure.
• 36:12
  SPEAKER_01: And that has largely been interpreted to be a restraint on the executive branch,
• 36:19
  SPEAKER_01: police, for example, right?
• 36:21
  SPEAKER_01: Exactly.
• 36:23
  SPEAKER_01: The Oregon Constitution doesn't have those words.
• 36:25
  SPEAKER_01: It begins differently.
• 36:26
  SPEAKER_01: It says, no law shall, right?
• 36:31
  SPEAKER_01: And so the Oregon Supreme Court has said,
• 36:33
  SPEAKER_01: well, that Article I, Section 9 is not just a limitation on the executive branch.
• 36:39
  SPEAKER_01: It's also a limitation on the legislature and what laws the legislature can pass
• 36:44
  SPEAKER_01: that might infringe on Oregonians' privacy.
• 36:48
  SPEAKER_01: So little distinctions like that,
• 36:50
  SPEAKER_01: some of them come from differences in the text themselves,
• 36:55
  SPEAKER_01: and some of them come from differences of interpretation.
• 36:57
  SPEAKER_01: So we talked about how the Fourth Amendment talks about the reasonable expectation of privacy.
• 37:04
  SPEAKER_01: So the Fourth Amendment would say...
• 37:08
  SPEAKER_01: They would look at you, right?
• 37:12
  SPEAKER_01: What is your expectation?
• 37:14
  SPEAKER_01: Is that socially reasonable, right?
• 37:17
  SPEAKER_01: And we talked about the struggles of trying to assess reasonableness in a world
• 37:23
  SPEAKER_01: where we're increasingly giving up our data.
• 37:25
  SPEAKER_01: Exactly.
• 37:27
  SPEAKER_01: The Oregon Constitution has not been interpreted by
• 37:30
  SPEAKER_01: the Oregon Supreme Court They have rejected the expectation of privacy test, right?
• 37:37
  SPEAKER_01: And instead,
• 37:37
  SPEAKER_01: the standard is the reasonable,
• 37:42
  SPEAKER_01: the expectation society sets for the conduct of our government, right?
• 37:48
  SPEAKER_01: So it's not on the expectation of the individual and the individual's reasonableness.
• 37:53
  SPEAKER_01: It's on our collective expectation of how we want our government to behave.
• 37:59
  SPEAKER_01: That shift in focus is Means that there is an entirely different set of tools
• 38:09
  SPEAKER_01: that are available in Oregon to bring to bear to these problems
• 38:13
  SPEAKER_01: that aren't necessarily present.
• 38:15
  SPEAKER_01: And we see this replicated throughout our constitutional system.
• 38:19
  SPEAKER_01: And Oregon is not exclusive to this, right?
• 38:22
  SPEAKER_01: So Oregon is what I like to call the epicenter
• 38:26
  SPEAKER_01: of independent state constitutional work,
• 38:28
  SPEAKER_01: largely because of the work of, um,
• 38:32
  SPEAKER_01: A man began as a University of Oregon professor,
• 38:36
  SPEAKER_01: became an Oregon Supreme Court justice.
• 38:38
  SPEAKER_01: His name was Hans Lindy, right?
• 38:41
  SPEAKER_01: And national regarded scholar and really set us on this path
• 38:48
  SPEAKER_01: to independent state constitutional grounds.
• 38:52
  SPEAKER_01: Many states are not like this, right?
• 38:54
  SPEAKER_01: Interesting.
• 38:55
  SPEAKER_01: For over 30 states in our nation are what are called lockstep states,
• 39:02
  SPEAKER_01: meaning they interpret their state constitutional provisions.
• 39:07
  SPEAKER_01: So if they have a provision on like search and seizure,
• 39:09
  SPEAKER_01: they're like our provision means whatever the U.S.
• 39:12
  SPEAKER_01: Supreme Court says the Fourth Amendment means.
• 39:14
  SPEAKER_00: 30 states do that.
• 39:15
  SPEAKER_01: Yeah.
• 39:16
  SPEAKER_00: Wow.
• 39:16
  SPEAKER_00: Right.
• 39:19
  SPEAKER_01: Oregon.
• 39:21
  SPEAKER_01: That's one end of the spectrum.
• 39:22
  SPEAKER_01: At the other end of the spectrum is Oregon, right?
• 39:26
  SPEAKER_01: And now a few other states,
• 39:28
  SPEAKER_01: they might not like to say they copied us, but I like to say that
• 39:32
  SPEAKER_00: they did.
• 39:33
  SPEAKER_00: I love this for us.
• 39:35
  SPEAKER_01: Yeah.
• 39:36
  SPEAKER_01: You know, Oregon is a leader in many things, right?
• 39:42
  SPEAKER_01: And this is one of them.
• 39:44
  SPEAKER_01: And so out here is Oregon basically saying,
• 39:48
  SPEAKER_01: We're always gonna consider our state constitution first and independently.
• 39:52
  SPEAKER_01: And only if the state constitution doesn't give us an answer or provide the person
• 39:59
  SPEAKER_01: a certain degree of rights that would be at least meet the federal floor,
• 40:03
  SPEAKER_01: will we ever even consider the federal constitution.
• 40:07
  SPEAKER_01: And so it's really interesting.
• 40:10
  SPEAKER_01: It's interesting to practice law in Oregon.
• 40:12
  SPEAKER_01: It's interesting to be a judge in Oregon.
• 40:15
  SPEAKER_01: In my time as a judge in Oregon,
• 40:17
  SPEAKER_01: I bet I have needed to construe a federal constitutional provision 5% of the time,
• 40:27
  SPEAKER_01: because 95% of the time,
• 40:28
  SPEAKER_01: the Oregon Constitution gets us an answer,
• 40:31
  SPEAKER_01: and often that answer is superior to the federal constitution.
• 40:36
  SPEAKER_00: Which is completely different from judicial experience in those 30 states.
• 40:39
  SPEAKER_00: Oh, absolutely.
• 40:40
  SPEAKER_00: Because they are mainly,
• 40:41
  SPEAKER_00: probably,
• 40:41
  SPEAKER_00: that's what they're looking, they're just looking at the federal constitution.
• 40:45
  SPEAKER_01: They're looking very strong at the federal constitution, right?
• 40:51
  SPEAKER_01: And we're out here, it is a very fitting state motto, we fly with our own wings.
• 40:58
  SPEAKER_00: I'm going to try to unpack a little bit of what you said,
• 41:00
  SPEAKER_00: especially as it pertains to the privacy thing,
• 41:02
  SPEAKER_00: because I think it's so fascinating and so important as people are thinking
• 41:06
  SPEAKER_00: about their privacy in Oregon.
• 41:09
  SPEAKER_00: You got the federal conception, which is a reasonable person and what they could expect.
• 41:15
  SPEAKER_00: And as we've talked about,
• 41:17
  SPEAKER_00: where I'm giving Apple the right and Palantir and everybody,
• 41:20
  SPEAKER_00: and I drive in the streets and my My reasonable expectation of privacy as
• 41:24
  SPEAKER_00: an individual is severely diminished by my own actions and choices to participate in
• 41:31
  SPEAKER_00: the data economy and everything that we have.
• 41:34
  SPEAKER_00: The Oregon framing of that is,
• 41:37
  SPEAKER_00: as you said,
• 41:37
  SPEAKER_00: if I understood correctly,
• 41:39
  SPEAKER_00: what is your expectation vis-a-vis how the government and what they can do to look
• 41:45
  SPEAKER_00: at your privacy?
• 41:46
  SPEAKER_00: Vastly different question.
• 41:48
  SPEAKER_00: Because I think most people anywhere in the United States would think, well,
• 41:51
  SPEAKER_00: the government's not allowed to know where I'm driving every minute and also
• 41:56
  SPEAKER_00: where I'm.
• 41:57
  SPEAKER_00: You know who I'm talking to on the phone and who I'm sending text messages to
• 42:01
  SPEAKER_00: and you know,
• 42:02
  SPEAKER_00: other private communications that these corporations Have access to these things
• 42:09
  SPEAKER_00: and we know our data can get sucked up and traded.
• 42:13
  SPEAKER_00: I saw this post on social media and a guy said, hey, go on McDonald's.
• 42:20
  SPEAKER_00: They have a privacy section,
• 42:21
  SPEAKER_00: I think because maybe I think California passed a law that said you have to do this
• 42:27
  SPEAKER_00: and you can download your profile at McDonald's.
• 42:30
  SPEAKER_00: He says mine was 50 pages.
• 42:32
  SPEAKER_00: They know where I drive.
• 42:34
  SPEAKER_00: They know what time I go through.
• 42:37
  SPEAKER_00: They have me down to the penny
• 42:38
  SPEAKER_00: on how much they estimate I will spend every single month on McDonald's.
• 42:44
  SPEAKER_00: And he's like, McDonald's, one company that he has over years frequented.
• 42:50
  SPEAKER_00: And so if that's the federal idea of privacy,
• 42:55
  SPEAKER_00: I'm sure glad that Oregon has a different conception of how to figure that out.
• 42:58
  SPEAKER_01: Yeah.
• 42:58
  SPEAKER_01: And I don't want to...
• 43:02
  SPEAKER_01: You know, overly disparage the federal courts, right?
• 43:05
  SPEAKER_01: I think the federal courts are struggling with this and struggling with how
• 43:09
  SPEAKER_01: to create a conceptual framework for privacy, right?
• 43:19
  SPEAKER_01: So I don't think they've thrown out everything.
• 43:24
  SPEAKER_01: They see these same problems.
• 43:26
  SPEAKER_01: It's just that in Oregon, we have...
• 43:32
  SPEAKER_01: We have certain tools in our toolbox that have given us ways
• 43:39
  SPEAKER_01: of approaching problems,
• 43:41
  SPEAKER_01: not just in privacy,
• 43:42
  SPEAKER_01: but in all kinds of legal ways that are different than the federal courts.
• 43:48
  SPEAKER_01: And historically, Oregonian civil liberties have benefited from that.
• 43:54
  SPEAKER_00: So- I think a lot of people around the country nationally,
• 43:59
  SPEAKER_00: but here in Oregon are struggling with some of the things that we're seeing at
• 44:04
  SPEAKER_00: the federal level from this federal executive administration,
• 44:08
  SPEAKER_00: the Trump administration.
• 44:10
  SPEAKER_00: What we're seeing in terms of our rights, I mean,
• 44:14
  SPEAKER_00: we're seeing people who are citizens of this country being plucked off the streets
• 44:19
  SPEAKER_00: by ICE, by immigration enforcement.
• 44:24
  SPEAKER_00: We are seeing differences, I mean,
• 44:27
  SPEAKER_00: just to take it to Portland,
• 44:28
  SPEAKER_00: in the way that we can be policed and by who can police us in that ways and
• 44:32
  SPEAKER_00: who can use munitions and who can't use munitions.
• 44:35
  SPEAKER_00: And so I think we're experiencing What I would perceive,
• 44:40
  SPEAKER_00: my words,
• 44:41
  SPEAKER_00: is an erosion of how I feel in terms of my rights vis-a-vis
• 44:45
  SPEAKER_00: the federal government right now.
• 44:48
  SPEAKER_00: Oregon, we do things differently.
• 44:52
  SPEAKER_00: We can have different interpretations, different tools in our tool belt.
• 44:55
  SPEAKER_00: Should we, as Oregonians, I think that's something that people don't understand.
• 45:00
  SPEAKER_00: Should we be thinking of this as an opportunity to shore up some
• 45:06
  SPEAKER_00: of our constitutional protections in this state?
• 45:08
  SPEAKER_00: Or how should we be thinking about this if you're worried about
• 45:13
  SPEAKER_00: where things are going on the federal level,
• 45:16
  SPEAKER_00: but understand that we have different tools and a different path here in Oregon?
• 45:20
  SPEAKER_00: Should we be considering that?
• 45:22
  SPEAKER_00: It's a very broad question.
• 45:24
  SPEAKER_01: The answer is yes, right?
• 45:26
  SPEAKER_01: And when I talk to lawyers all the time,
• 45:31
  SPEAKER_01: I emphasize to them the importance of considering the Oregon Constitution in
• 45:37
  SPEAKER_01: the arguments that they make.
• 45:40
  SPEAKER_01: And we on the court consider the Oregon Constitution.
• 45:43
  SPEAKER_01: All of this is designed to give us the opportunity to Decide things locally, right?
• 45:55
  SPEAKER_01: Yeah.
• 45:56
  SPEAKER_01: For ways that work for Oregon.
• 45:59
  SPEAKER_01: Now, sometimes there are going to be things that are going to be decided at
• 46:03
  SPEAKER_01: the federal court that are going to control, right?
• 46:05
  SPEAKER_01: There is the supremacy clause, right?
• 46:07
  SPEAKER_00: Right, right, right.
• 46:09
  SPEAKER_01: But historically,
• 46:11
  SPEAKER_01: in our system of federalism,
• 46:13
  SPEAKER_01: states were given extraordinary autonomy,
• 46:17
  SPEAKER_01: except for a narrow category of things that were given to the federal government.
• 46:23
  SPEAKER_01: And I think that
• 46:29
  SPEAKER_01: and it's important that I sort of stay out of politics
• 46:32
  SPEAKER_01: and I'm not going to get into that.
• 46:34
  SPEAKER_01: But I will say that not just with this administration,
• 46:38
  SPEAKER_01: but with prior administrations,
• 46:40
  SPEAKER_01: there has been a growing interest in states around the country to decide things on
• 46:50
  SPEAKER_01: a state basis.
• 46:53
  SPEAKER_01: To sort of preserve some control over this decision making.
• 47:00
  SPEAKER_01: And that is what the whole system is designed to do, right?
• 47:05
  SPEAKER_01: There's a famous quote in a U.S.
• 47:07
  SPEAKER_01: Supreme Court case where it calls the states the laboratories of democracy.
• 47:12
  SPEAKER_00: Yeah.
• 47:13
  SPEAKER_01: Right?
• 47:13
  SPEAKER_01: Yeah.
• 47:14
  SPEAKER_01: And I think...
• 47:16
  SPEAKER_01: Increasingly,
• 47:17
  SPEAKER_01: states are seeing that they maybe haven't had their laboratory spinning up
• 47:24
  SPEAKER_01: to full capacity, and now they're more interested in doing that.
• 47:28
  SPEAKER_01: And I think that's generally a good thing.
• 47:32
  SPEAKER_01: And it has historically been a good thing for Oregon.
• 47:35
  SPEAKER_01: And yes,
• 47:36
  SPEAKER_01: it's something that we need to always be mindful of,
• 47:40
  SPEAKER_01: of how we can do things here in a way that allows Oregon to sort
• 47:46
  SPEAKER_01: of be Oregon acceptably
• 47:50
  SPEAKER_01: within the framework of the broader national conversation.
• 47:54
  SPEAKER_00: I love the laboratory of democracy.
• 47:58
  SPEAKER_00: It's something that I've thought a lot about throughout my career and kind of almost
• 48:03
  SPEAKER_00: in a You know,
• 48:04
  SPEAKER_00: in my job as the head of the Criminal Justice Commission,
• 48:07
  SPEAKER_00: I oversaw a lot of aspects of criminal justice in different counties
• 48:12
  SPEAKER_00: and different counties, even counties approach things in different ways.
• 48:15
  SPEAKER_01: Yeah.
• 48:16
  SPEAKER_00: And I love that.
• 48:17
  SPEAKER_00: I think it's a strength.
• 48:18
  SPEAKER_00: I think it allows people to tailor interventions that are acceptable
• 48:22
  SPEAKER_00: to their community and they're trying something and they might they might hit
• 48:28
  SPEAKER_00: the formula that gets us the good results.
• 48:30
  SPEAKER_00: Yeah.
• 48:31
  SPEAKER_00: And.
• 48:32
  SPEAKER_00: What I'm seeing at the federal level is an effort to consolidate
• 48:37
  SPEAKER_00: and centralize control and power.
• 48:42
  SPEAKER_00: And I'll give you a specific example.
• 48:45
  SPEAKER_00: At the federal level,
• 48:47
  SPEAKER_00: there was a law that was passed that would preempt states
• 48:50
  SPEAKER_00: from regulating artificial intelligence.
• 48:53
  SPEAKER_00: And even at the time, I thought to myself, I mean, Like, I don't agree.
• 48:59
  SPEAKER_00: I think I see what they're trying to do here.
• 49:00
  SPEAKER_00: But I thought, man,
• 49:01
  SPEAKER_00: what a missed opportunity for the states to individually wrestle
• 49:07
  SPEAKER_00: with how do we protect our population?
• 49:11
  SPEAKER_00: How do we consider this?
• 49:13
  SPEAKER_00: How do we grapple with this?
• 49:15
  SPEAKER_00: And instead to pull that away and preempt the states from having a voice in that.
• 49:20
  SPEAKER_00: Is that kind of what you're talking about in terms of the laboratory of democracy?
• 49:24
  SPEAKER_00: It is.
• 49:25
  SPEAKER_01: And, you know, I...
• 49:28
  SPEAKER_01: I share your concern that this distributed system that we have
• 49:35
  SPEAKER_01: where states are independent and under the state constitutions doing their own thing
• 49:41
  SPEAKER_01: that works for them.
• 49:44
  SPEAKER_01: And then we've got this federal overlay, which sometimes, you know, will set a floor.
• 49:48
  SPEAKER_01: And I share your concern that the sort of Freedom of
• 49:56
  SPEAKER_01: the laboratory might increasingly come under pressure.
• 50:05
  SPEAKER_01: And it's something that we just need to be mindful of, that we need to guard against.
• 50:13
  SPEAKER_01: I think that this pressure is,
• 50:17
  SPEAKER_01: in some respects,
• 50:18
  SPEAKER_01: inevitable based upon the forces that we're seeing that Not just nationally,
• 50:26
  SPEAKER_01: but in the world.
• 50:27
  SPEAKER_01: We are seeing and
• 50:36
  SPEAKER_01: I think this is sort of universally acknowledged.
• 50:38
  SPEAKER_01: I don't think it's a controversial point.
• 50:40
  SPEAKER_01: We're seeing growth in inequality at levels that we've almost never seen.
• 50:48
  SPEAKER_01: And I think most political scientists will say that
• 50:54
  SPEAKER_01: when you start having such inequality disparities,
• 51:00
  SPEAKER_01: you need More sort of top-down control to make that possible.
• 51:07
  SPEAKER_01: And you need increasing pressure.
• 51:10
  SPEAKER_01: That's why we see political scientists talk about things like authoritarianism around the world.
• 51:16
  SPEAKER_01: One of the ways we might see that in the context of courts, cases,
• 51:19
  SPEAKER_01: and the judicial branch is a trend towards sort of centralized,
• 51:27
  SPEAKER_01: top-down decision-making, right?
• 51:29
  SPEAKER_01: Because single points of decision-making Are simply more efficient systems
• 51:35
  SPEAKER_01: for inequality to work in, right?
• 51:38
  SPEAKER_01: And a robust federal system where the states are being laboratories of democracy,
• 51:43
  SPEAKER_01: that's an inefficient system for that type of thing.
• 51:46
  SPEAKER_01: And so I think there is a natural increasing pressure that we're going to see based
• 51:53
  SPEAKER_01: upon just the times in which we are living, right?
• 51:57
  SPEAKER_01: And that is...
• 52:01
  SPEAKER_01: Really, it's going to require us to decide,
• 52:05
  SPEAKER_01: and this is honestly probably a good thing because it's good for us to engage
• 52:11
  SPEAKER_01: in civic conversation about how we want our world to be, right?
• 52:17
  SPEAKER_01: But it's going to have to,
• 52:19
  SPEAKER_01: it may force us to decide this laboratories of democracy,
• 52:24
  SPEAKER_01: this dual system of federalism,
• 52:26
  SPEAKER_01: is this something we really value and are we willing to protect it?
• 52:30
  SPEAKER_00: Yeah.
• 52:32
  SPEAKER_00: Uh, so I want to get to one of the things that, that I hear from, from folks a lot.
• 52:39
  SPEAKER_00: Yeah.
• 52:40
  SPEAKER_00: You started out as a circuit court judge.
• 52:42
  SPEAKER_00: Yep.
• 52:43
  SPEAKER_00: And we have, this is kind of a rare thing, uh, and we'll, we'll touch on that too.
• 52:47
  SPEAKER_00: Uh, we have two elections for circuit court judges,
• 52:51
  SPEAKER_00: contested elections for circuit court judge in Multnomah County on
• 52:54
  SPEAKER_00: the ballot this November.
• 52:56
  SPEAKER_00: Uh, and I hear from people all the time, one,
• 52:59
  SPEAKER_00: you know,
• 52:59
  SPEAKER_00: even during the primaries,
• 53:01
  SPEAKER_00: I think any lawyer gets texts from their friends, hey, who should I vote for?
• 53:06
  SPEAKER_00: What do you know, right?
• 53:07
  SPEAKER_00: And they say, well, this and that and blah, blah, blah.
• 53:09
  SPEAKER_00: And I give advice.
• 53:10
  SPEAKER_00: And now we're going into a general election and there's two candidates for each of
• 53:14
  SPEAKER_00: the positions.
• 53:15
  SPEAKER_00: And the same questions are going to come up again.
• 53:17
  SPEAKER_00: Who should I vote for?
• 53:18
  SPEAKER_00: I don't know anything about these people.
• 53:21
  SPEAKER_00: And that's one of the reasons I so appreciate you coming on the show,
• 53:24
  SPEAKER_00: because I think a lot of people in
• 53:26
  SPEAKER_00: the community feel like they don't really Know much about judicial candidates
• 53:33
  SPEAKER_00: and judges in general, maybe not feeling accessible to local people.
• 53:39
  SPEAKER_00: And so I'm wondering,
• 53:41
  SPEAKER_00: you know,
• 53:41
  SPEAKER_00: you ran,
• 53:42
  SPEAKER_00: you've gone through a campaign,
• 53:43
  SPEAKER_00: you've, you know, you've both been appointed and you've stood in campaigns and won.
• 53:49
  SPEAKER_00: So maybe unpack that a little bit from the perspective of a judicial candidate.
• 53:55
  SPEAKER_00: Like what are they going through?
• 53:56
  SPEAKER_00: And there are ethics rules and things that they have to navigate.
• 54:00
  SPEAKER_00: And then I want to talk a little bit about how people in the public
• 54:04
  SPEAKER_00: who are lay people can be informed and maybe are things working the way
• 54:09
  SPEAKER_00: that we would hope they would.
• 54:10
  SPEAKER_00: But starting with your perspective.
• 54:11
  SPEAKER_01: Yeah.
• 54:12
  SPEAKER_01: So I think it's important to recognize that There are different ways
• 54:19
  SPEAKER_01: that judges can become or people can become judges.
• 54:25
  SPEAKER_01: Right.
• 54:27
  SPEAKER_01: And.
• 54:29
  SPEAKER_01: Number one,
• 54:30
  SPEAKER_01: let's keep in mind that we work in a system where there are three branches
• 54:35
  SPEAKER_01: of our government and the judiciary is a full independent branch of the government.
• 54:41
  SPEAKER_00: Yep.
• 54:42
  SPEAKER_01: But.
• 54:44
  SPEAKER_01: It's intended to be nonpartisan, or at least it is in Oregon.
• 54:50
  SPEAKER_01: There are some states where you actually have a party designee, even as a judge.
• 54:57
  SPEAKER_01: Oregon system,
• 54:59
  SPEAKER_01: it is election-based, and a judge runs for election every six years.
• 55:06
  SPEAKER_01: When the judge retires...
• 55:10
  SPEAKER_01: In the middle of their terms, it may go to the governor's office for appointment.
• 55:14
  SPEAKER_01: The governor will appoint an individual who will then run at the next election.
• 55:19
  SPEAKER_01: Yeah.
• 55:23
  SPEAKER_01: Election systems have great benefit in that they provide a tool of accountability.
• 55:28
  SPEAKER_01: Right.
• 55:29
  SPEAKER_01: But it comes with trade offs.
• 55:32
  SPEAKER_01: And one of those trade offs is How do we elect judges?
• 55:38
  SPEAKER_01: We don't want judges to be politicians.
• 55:41
  SPEAKER_01: We don't want them out there campaigning on what they're going to do when
• 55:47
  SPEAKER_01: the case comes in front of them.
• 55:49
  SPEAKER_01: We don't want that.
• 55:51
  SPEAKER_01: But we also would sure like to know something about them.
• 55:55
  SPEAKER_01: And...
• 55:58
  SPEAKER_01: That has always been a bit of a struggle is to how to communicate that information.
• 56:04
  SPEAKER_01: Part of that code of judicial conduct is what judges can and can't say when campaigning.
• 56:11
  SPEAKER_01: It also applies to people who aren't judges, but are running to be a judge.
• 56:17
  SPEAKER_00: Yeah.
• 56:17
  SPEAKER_01: Right.
• 56:19
  SPEAKER_01: And understandably that sort of constrains the information flow.
• 56:26
  SPEAKER_01: Um, And so it has been a perennial problem in and not just with us,
• 56:32
  SPEAKER_01: with all states that elect judges.
• 56:35
  SPEAKER_01: How do we get a read on somebody who wants to be a judge?
• 56:39
  SPEAKER_01: What are they thinking?
• 56:40
  SPEAKER_01: What's in their head?
• 56:42
  SPEAKER_01: What information can we know that would help us as a reasonable voter?
• 56:49
  SPEAKER_01: We can talk about what that might be, but at the outset, let's acknowledge what it is.
• 56:56
  SPEAKER_01: It's a somewhat unsolvable problem.
• 56:58
  SPEAKER_00: Yeah.
• 56:59
  SPEAKER_00: Well,
• 56:59
  SPEAKER_00: one of the things that I find fascinating and confounding and frustrating is I have
• 57:08
  SPEAKER_00: a good sense of who a judge is or who a candidate for judge is because I'm in
• 57:13
  SPEAKER_00: the legal community.
• 57:15
  SPEAKER_00: Yeah.
• 57:16
  SPEAKER_00: Either I know them or I'm pretty quickly able to suss out based
• 57:21
  SPEAKER_00: who their relationships are with,
• 57:24
  SPEAKER_00: what kind of work they've done,
• 57:26
  SPEAKER_00: maybe seeing evidence of some of the outcomes of the work they've done.
• 57:30
  SPEAKER_00: Also by who is supporting them.
• 57:32
  SPEAKER_00: Sure.
• 57:34
  SPEAKER_00: It's kind of easy,
• 57:35
  SPEAKER_00: I think, or a lot easier for lawyers to figure out, oh, this is that type of judge.
• 57:40
  SPEAKER_00: I think I'm philosophically aligned with them.
• 57:43
  SPEAKER_00: This is that type of judge, not my cup of tea, right?
• 57:45
  SPEAKER_00: Not my judicial philosophy or what I'm looking for.
• 57:48
  SPEAKER_00: Voters, on the other hand,
• 57:49
  SPEAKER_00: who are not lawyers and maybe don't know any lawyers,
• 57:52
  SPEAKER_00: seem to be completely outside of that knowledge.
• 57:56
  SPEAKER_00: And so it creates this almost
• 58:02
  SPEAKER_00: inequality or dynamic of lack of information for one party.
• 58:07
  SPEAKER_00: And so you see groups of lawyers like prosecutors back a judge,
• 58:12
  SPEAKER_00: defense attorneys back this judge,
• 58:14
  SPEAKER_00: trial lawyers will back this judge
• 58:16
  SPEAKER_00: because they know what they're – they presume they know what they're getting.
• 58:20
  SPEAKER_01: Yes.
• 58:21
  SPEAKER_00: And yet the public – Is kept in the dark.
• 58:25
  SPEAKER_00: And so it's asymmetry is the word I was looking for.
• 58:28
  SPEAKER_00: I think that's very true.
• 58:31
  SPEAKER_00: And so it almost seems to me like,
• 58:37
  SPEAKER_00: you know,
• 58:37
  SPEAKER_00: you're nonpartisan and you have no biases and you're going to get in there
• 58:42
  SPEAKER_00: and you're going to follow the law.
• 58:44
  SPEAKER_00: Right.
• 58:44
  SPEAKER_00: Which is what you hear judges say.
• 58:45
  SPEAKER_00: I'm going to go in there and I'm going to apply the facts to the law
• 58:48
  SPEAKER_00: and I will come up with what the law says.
• 58:52
  SPEAKER_00: But.
• 58:55
  SPEAKER_00: Different interest groups have a different read on this, so the public doesn't.
• 58:58
  SPEAKER_00: And maybe it is an unsolvable, challenging problem.
• 59:02
  SPEAKER_00: Like you say, appointments is one way to go.
• 59:05
  SPEAKER_00: But then you have a Democratic, in Oregon, you have a Democrat governor appointing judges.
• 59:09
  SPEAKER_00: So you would think that her team does vetting and understands
• 59:13
  SPEAKER_00: the judicial philosophy of the candidates she's going to appoint, right?
• 59:16
  SPEAKER_00: So yeah,
• 59:16
  SPEAKER_00: I guess I'm just struggling with the asymmetry and information to the public
• 59:20
  SPEAKER_00: and what to do about that.
• 59:23
  SPEAKER_01: You know, one of the...
• 59:26
  SPEAKER_01: One of the challenges,
• 59:27
  SPEAKER_01: and this is a persistent challenge in any democratic system,
• 59:32
  SPEAKER_01: is it requires effort on the part of us in this democratic system to sort
• 59:39
  SPEAKER_01: of educate ourselves, right?
• 59:42
  SPEAKER_01: So some of this is,
• 59:45
  SPEAKER_01: it's not that this information can't be adduced,
• 59:48
  SPEAKER_01: so it might require some effort, right?
• 59:53
  SPEAKER_01: That's always been the case.
• 59:54
  SPEAKER_01: Sure.
• 59:56
  SPEAKER_01: I think a lot of this begins though with certain questions that we need
• 1:00:03
  SPEAKER_01: to ask ourselves before we ask a candidate, right?
• 1:00:11
  SPEAKER_01: And I think this is true across all branches of government.
• 1:00:16
  SPEAKER_01: So before you vote for governor,
• 1:00:23
  SPEAKER_01: It seems like an appropriate question to ask yourself is,
• 1:00:28
  SPEAKER_01: what do I expect the person, the head of the executive branch of my state to do?
• 1:00:36
  SPEAKER_01: What do I expect that branch to do?
• 1:00:39
  SPEAKER_01: Your legislature, the same thing.
• 1:00:42
  SPEAKER_01: The courts, right?
• 1:00:44
  SPEAKER_01: What is it that you expect that?
• 1:00:48
  SPEAKER_01: I think.
• 1:00:48
  SPEAKER_01: What I'm struggling with is.
• 1:01:17
  SPEAKER_00: And I think politics is local and I'm looking at national things.
• 1:01:21
  SPEAKER_00: I don't think even no matter where you are in the spectrum of politics and
• 1:01:27
  SPEAKER_00: whether you're cheering this on or aghast,
• 1:01:30
  SPEAKER_00: I don't think anyone's looking at the Supreme Court and saying, oh, look at them.
• 1:01:34
  SPEAKER_00: They're just applying the law to the facts and the ball is going to land where it may.
• 1:01:37
  SPEAKER_00: Like nobody thinks that is what's happening here.
• 1:01:40
  SPEAKER_00: I think.
• 1:01:42
  SPEAKER_00: There's an acknowledgement,
• 1:01:43
  SPEAKER_00: and whether, again,
• 1:01:43
  SPEAKER_00: you're cheering this on as my side's won and my team's won,
• 1:01:47
  SPEAKER_00: and so now we get the rulings that we want that is going to perpetuate,
• 1:01:51
  SPEAKER_00: or you're aghast and you're like,
• 1:01:52
  SPEAKER_00: I can't believe this is being trampled to get the results
• 1:01:55
  SPEAKER_00: that they want no matter what the law is.
• 1:01:59
  SPEAKER_00: We all see that happening.
• 1:02:01
  SPEAKER_00: And so locally,
• 1:02:04
  SPEAKER_00: I think we're still wrestling with this,
• 1:02:07
  SPEAKER_00: well, I can't really understand what the judge's biases may be.
• 1:02:12
  SPEAKER_00: And every human being has biases,
• 1:02:15
  SPEAKER_00: but I'm not going to get to deduce them or really get to know them because
• 1:02:20
  SPEAKER_00: the judge has to be neutral and approach cases neutrally.
• 1:02:22
  SPEAKER_00: And I think maybe there's just an erosion of faith in the institution.
• 1:02:27
  SPEAKER_00: I mean, I think that's a fair assessment.
• 1:02:29
  SPEAKER_00: With respect to your comment about this sort of erosion of public trust,
• 1:02:33
  SPEAKER_00: we definitely see plenty of
• 1:02:53
  SPEAKER_01: Surveys and focus groups that tell us that there's been an erosion of trust in
• 1:02:59
  SPEAKER_01: the judiciary at the federal level.
• 1:03:02
  SPEAKER_01: And my hope is that we build a wall
• 1:03:07
  SPEAKER_00: against that erosion for
• 1:03:08
  SPEAKER_01: the state level.
• 1:03:11
  SPEAKER_01: And, you know,
• 1:03:14
  SPEAKER_01: part of what I think can build that wall of erosion is that The public does have
• 1:03:22
  SPEAKER_01: a choice in judges in this state, right?
• 1:03:26
  SPEAKER_01: So the question is, how do we get the information to them that would help, right?
• 1:03:31
  SPEAKER_01: Yes, yes.
• 1:03:32
  SPEAKER_00: You mentioned
• 1:03:35
  SPEAKER_01: various organizations and institutions, and they provide a very valuable service.
• 1:03:41
  SPEAKER_01: Sometimes they will send questionnaires to judicial candidates or have conversations
• 1:03:46
  SPEAKER_01: with judicial candidates.
• 1:03:49
  SPEAKER_01: Report back to their membership or something like that.
• 1:03:54
  SPEAKER_01: Where I would offer a piece of constructive feedback in that process is
• 1:04:00
  SPEAKER_01: that oftentimes when I see those,
• 1:04:04
  SPEAKER_01: they seem very sort of subject matter results oriented, right?
• 1:04:10
  SPEAKER_01: How is this person on environmental issues?
• 1:04:13
  SPEAKER_01: How is this person on criminal justice issues?
• 1:04:16
  SPEAKER_01: That type of thing.
• 1:04:17
  SPEAKER_01: Yep, yep.
• 1:04:20
  SPEAKER_01: And for me, and granted, this could be just because I'm like a nerdy appellate judge, right?
• 1:04:32
  SPEAKER_01: So this may be over-intellectualized.
• 1:04:34
  SPEAKER_01: Feel free to tell me to get lost.
• 1:04:39
  SPEAKER_01: I am most interested in certain bigger philosophical pictures, right?
• 1:04:46
  SPEAKER_01: So one of the things...
• 1:04:48
  SPEAKER_01: I love to do,
• 1:04:50
  SPEAKER_01: and I've had the opportunity in the past,
• 1:04:54
  SPEAKER_01: before I was a judge,
• 1:04:57
  SPEAKER_01: I sat on several selection committees advising governors on judicial appointments.
• 1:05:06
  SPEAKER_01: And there are certain questions, I mean, things that I always wanted to know, namely questions.
• 1:05:12
  SPEAKER_01: What is your view of this branch of government, right?
• 1:05:16
  SPEAKER_01: What do you think its role is in
• 1:05:21
  SPEAKER_01: a three-branch system of democracy?
• 1:05:27
  SPEAKER_01: Most people, like you point out, and there are differences.
• 1:05:34
  SPEAKER_01: The work at the trial court is totally different than the work at the Supreme Court.
• 1:05:36
  SPEAKER_01: So some of these questions don't apply equally.
• 1:05:39
  SPEAKER_01: Right.
• 1:05:40
  SPEAKER_01: I think,
• 1:05:40
  SPEAKER_01: as you acknowledge,
• 1:05:41
  SPEAKER_01: most people don't realistically think that the U.S.
• 1:05:48
  SPEAKER_01: Supreme Court or probably Supreme Court justices anywhere are just calling bulls
• 1:05:54
  SPEAKER_01: and strikes.
• 1:05:54
  SPEAKER_01: Right.
• 1:05:55
  SPEAKER_01: And that's because the law is written with a lot of squishy words.
• 1:05:59
  SPEAKER_01: Right.
• 1:06:00
  SPEAKER_01: A lot of squishy value words.
• 1:06:02
  SPEAKER_01: Right.
• 1:06:02
  SPEAKER_01: What is reasonable?
• 1:06:05
  SPEAKER_01: Right.
• 1:06:05
  SPEAKER_01: What is fair?
• 1:06:08
  SPEAKER_01: What is cruel?
• 1:06:10
  SPEAKER_01: These are naturally value laden words.
• 1:06:13
  SPEAKER_01: Right.
• 1:06:15
  SPEAKER_01: And the law for hundreds of years has been a series of interpretations
• 1:06:20
  SPEAKER_01: with reasonable alternate pathways.
• 1:06:25
  SPEAKER_01: Right.
• 1:06:27
  SPEAKER_01: And so I think it's a fair question to get into sort of more philosophical pictures.
• 1:06:33
  SPEAKER_01: What do you view the role of.
• 1:06:38
  SPEAKER_01: If we accept that,
• 1:06:43
  SPEAKER_01: you know,
• 1:06:45
  SPEAKER_01: take a number of philosophers who would say that the purpose of government is
• 1:06:51
  SPEAKER_01: to improve the lives of citizens, right?
• 1:06:55
  SPEAKER_01: If the judicial branch is part of government,
• 1:06:57
  SPEAKER_01: how does the judicial branch improve the lives of citizens?
• 1:07:01
  SPEAKER_01: And if you were to be a judge,
• 1:07:03
  SPEAKER_01: how would you view your role as a judge in improving the lives of Oregonians?
• 1:07:08
  SPEAKER_01: Good question.
• 1:07:08
  SPEAKER_01: Great question.
• 1:07:09
  SPEAKER_01: Right?
• 1:07:11
  SPEAKER_01: I also think that there are really interesting
• 1:07:17
  SPEAKER_01: sort of bigger picture questions
• 1:07:20
  SPEAKER_01: that are, you can never ask somebody how they're going to rule.
• 1:07:23
  SPEAKER_01: They shouldn't answer that.
• 1:07:24
  SPEAKER_01: The ethics rules prohibit that, and that's appropriate.
• 1:07:26
  SPEAKER_00: 100%.
• 1:07:27
  SPEAKER_01: But there are some really interesting philosophical questions in the law, right?
• 1:07:34
  SPEAKER_01: Martin Luther King Jr.,
• 1:07:35
  SPEAKER_01: in letters from Birmingham jail,
• 1:07:38
  SPEAKER_01: Writes about the moral obligation to follow just laws and the moral obligation
• 1:07:44
  SPEAKER_01: to passively oppose unjust laws.
• 1:07:49
  SPEAKER_01: I have asked people before, do you agree with that?
• 1:07:53
  SPEAKER_01: And they almost invariably say yes.
• 1:07:56
  SPEAKER_00: And then I ask, no one wants to be like, no, I had it wrong.
• 1:08:01
  SPEAKER_01: And then I ask if in the context of a judge, How does that apply?
• 1:08:09
  SPEAKER_00: Yeah.
• 1:08:10
  SPEAKER_01: Right?
• 1:08:11
  SPEAKER_01: And honestly, I don't even care about the answer.
• 1:08:15
  SPEAKER_01: What I want to see is a wrestling with the philosophical conundrum, right?
• 1:08:21
  SPEAKER_01: Because at the end of the day,
• 1:08:23
  SPEAKER_01: I think like any, frankly, any public servant out there, the goal is...
• 1:08:33
  SPEAKER_01: To fill public service seats with people who are thoughtful,
• 1:08:38
  SPEAKER_01: empathetic,
• 1:08:40
  SPEAKER_01: who understand that the world isn't black and white and that they might have
• 1:08:48
  SPEAKER_01: a position,
• 1:08:49
  SPEAKER_01: they might have an answer,
• 1:08:51
  SPEAKER_01: but that sometimes the more important thing is not the answer that you give, but
• 1:09:00
  SPEAKER_01: The fact that you wrestled with the answer in a complex way that honored
• 1:09:07
  SPEAKER_01: the arguments on all sides,
• 1:09:11
  SPEAKER_01: that's more than anything the qualities that I think make good public officials and,
• 1:09:18
  SPEAKER_01: in the end of the day, good judges.
• 1:09:21
  SPEAKER_01: And so that's what I wouldn't
• 1:09:26
  SPEAKER_00: I so appreciate that because even when I was elected as district attorney,
• 1:09:32
  SPEAKER_00: I got to, as district attorney, I got to say, hey, these are my policies.
• 1:09:35
  SPEAKER_00: This is what I will do when I get elected,
• 1:09:37
  SPEAKER_00: which is different than what a judge can or should do.
• 1:09:40
  SPEAKER_00: But I was still confronted with specific situations that are nuanced, that are hard, and that...
• 1:09:49
  SPEAKER_00: From a 100,000 foot view may look like I made a decision that was inconsistent with
• 1:09:55
  SPEAKER_00: the principles and things and my values that I ran on.
• 1:09:59
  SPEAKER_00: But you don't always get to just things aren't black and white.
• 1:10:03
  SPEAKER_00: You don't get to say, oh, no matter what, I'm against mass incarceration.
• 1:10:07
  SPEAKER_00: I ran on that.
• 1:10:08
  SPEAKER_00: I think that we should shrink the system.
• 1:10:09
  SPEAKER_00: Did I send people to prison?
• 1:10:10
  SPEAKER_00: Yes.
• 1:10:12
  SPEAKER_00: So it's like you do have to.
• 1:10:15
  SPEAKER_00: And so I appreciate what you're saying at any point.
• 1:10:18
  SPEAKER_00: I think a lot of times our politics,
• 1:10:20
  SPEAKER_00: our polarization of politics gets caught in this,
• 1:10:24
  SPEAKER_00: you know,
• 1:10:24
  SPEAKER_00: litmus test,
• 1:10:25
  SPEAKER_00: this like black and white,
• 1:10:27
  SPEAKER_00: you're always going to do this when really what I hear you saying and what resonates
• 1:10:31
  SPEAKER_00: with me is it's the way that people approach these challenges with values that you
• 1:10:37
  SPEAKER_00: as a voter would be aligned with and that you can trust that that's the lens and
• 1:10:42
  SPEAKER_00: the values they're going to bring.
• 1:10:43
  SPEAKER_00: Now, sometimes the end result Might not be the way that you had hoped it would be,
• 1:10:50
  SPEAKER_00: but so long as the appropriate values were brought to landing at that result,
• 1:10:55
  SPEAKER_00: we can all at least say, well,
• 1:10:58
  SPEAKER_00: you know,
• 1:10:58
  SPEAKER_00: they approached the issue in a way that I appreciate,
• 1:11:01
  SPEAKER_00: that I know that they wrestled with this.
• 1:11:06
  SPEAKER_01: To me, that's important,
• 1:11:07
  SPEAKER_01: you know,
• 1:11:07
  SPEAKER_01: and it's,
• 1:11:09
  SPEAKER_01: As you say,
• 1:11:10
  SPEAKER_01: it's something that we're increasingly seeing lost in sort of political discourse.
• 1:11:16
  SPEAKER_01: I've also seen this as a lawyer with my clients, right?
• 1:11:21
  SPEAKER_01: I had a client one time.
• 1:11:27
  SPEAKER_01: I was representing an individual who was going to be sentenced to prison for
• 1:11:32
  SPEAKER_01: a lengthy period of time.
• 1:11:35
  SPEAKER_01: We spent a lot of time at that hearing.
• 1:11:40
  SPEAKER_01: There was no question in my mind what the judge was going to do,
• 1:11:44
  SPEAKER_01: and that's what they did,
• 1:11:45
  SPEAKER_01: but they spent well over an hour talking to my client about their life
• 1:11:51
  SPEAKER_01: and everything like that.
• 1:11:53
  SPEAKER_01: And my client cried at that hearing,
• 1:11:56
  SPEAKER_01: not because they were going to prison,
• 1:11:58
  SPEAKER_01: but they told this judge that nobody had ever really listened to them in that way
• 1:12:06
  SPEAKER_01: before, right?
• 1:12:08
  SPEAKER_01: That's somebody who's engaging right with the issues in a way that restores faith in
• 1:12:18
  SPEAKER_01: a system, right?
• 1:12:19
  SPEAKER_01: Rather than take it away.
• 1:12:21
  SPEAKER_01: And so when we're looking for, for me,
• 1:12:28
  SPEAKER_01: you know,
• 1:12:29
  SPEAKER_01: public service candidates of all types,
• 1:12:31
  SPEAKER_01: but judicial candidates in particular, I am looking for somebody who
• 1:12:40
  SPEAKER_01: Displays that level of nuance,
• 1:12:43
  SPEAKER_01: who sees the validity of various arguments,
• 1:12:47
  SPEAKER_01: who truly wrestles with it and doesn't give away pat answers, right?
• 1:12:53
  SPEAKER_01: That to me is a better series of questions that I can ask somebody rather
• 1:13:02
  SPEAKER_01: than What do you think about this particular specific issue?
• 1:13:07
  SPEAKER_00: First, just as an aside, as a candidate, one of the things I appreciated most was house parties.
• 1:13:15
  SPEAKER_00: It is such a throwback,
• 1:13:17
  SPEAKER_00: I felt like,
• 1:13:19
  SPEAKER_00: in our democracy of still a time when neighbors get together in a community with
• 1:13:26
  SPEAKER_00: the purpose of listening to a candidate talk and have an opportunity.
• 1:13:30
  SPEAKER_00: Bronson James is sitting in the crowd eating chips and cheese and crackers with his neighbors.
• 1:13:34
  SPEAKER_00: What's a good question somebody out there might consider proposing?
• 1:13:36
  SPEAKER_00: Well, let's see.
• 1:13:36
  SPEAKER_00: Let's think of a couple of them.
• 1:13:37
  SPEAKER_00: How about...
• 1:13:55
  SPEAKER_01: What's the best example you can think of of judicial courage that you've seen?
• 1:14:02
  SPEAKER_00: I like this.
• 1:14:03
  SPEAKER_01: Right?
• 1:14:03
  SPEAKER_00: Yeah.
• 1:14:04
  SPEAKER_01: I'm very curious to see what they say, right?
• 1:14:09
  SPEAKER_01: And then, you know, we've already touched on one, right?
• 1:14:12
  SPEAKER_01: Yep.
• 1:14:13
  SPEAKER_01: What do you think the role of this third branch of government should be in improving
• 1:14:20
  SPEAKER_01: the lives of the citizens of our state?
• 1:14:24
  SPEAKER_01: Great question.
• 1:14:25
  SPEAKER_00: You know,
• 1:14:25
  SPEAKER_00: I love that question because I don't even think judicial candidates are thinking
• 1:14:31
  SPEAKER_00: to themselves in that frame.
• 1:14:33
  SPEAKER_00: I'm running for judge because I am going to approve the lives of Oregonians this way.
• 1:14:39
  SPEAKER_00: I've never heard a judge frame this.
• 1:14:43
  SPEAKER_00: An argument
• 1:14:44
  SPEAKER_01: that way.
• 1:14:44
  SPEAKER_01: Yeah.
• 1:14:45
  SPEAKER_01: I mean, and obviously we're not talking about results in individual cases, right?
• 1:14:50
  SPEAKER_01: Right.
• 1:14:51
  SPEAKER_01: Exactly.
• 1:14:51
  SPEAKER_01: But this is a whole branch of government and the purpose of government is to improve
• 1:14:55
  SPEAKER_01: the lives of citizens.
• 1:14:57
  SPEAKER_01: So how do you do that as a judge?
• 1:15:00
  SPEAKER_01: Fair question.
• 1:15:03
  SPEAKER_01: And I think the other thing that I would ask is
• 1:15:08
  SPEAKER_01: to what degree and how Should
• 1:15:13
  SPEAKER_01: a judge be involved in their community?
• 1:15:18
  SPEAKER_01: Yeah.
• 1:15:19
  SPEAKER_01: Right.
• 1:15:21
  SPEAKER_01: Because what we don't want is we never want to be in a system where any
• 1:15:29
  SPEAKER_01: of our elected officials are set apart from And so I think it's a fair question.
• 1:15:35
  SPEAKER_01: How should a judge be involved in the community?
• 1:15:38
  SPEAKER_01: And if you are a judge, how do you intend to be involved in the community?
• 1:15:56
  SPEAKER_00: That is actually something that I look for when I'm sussing through judicial candidates.
• 1:16:01
  SPEAKER_00: I want to know, where do you volunteer?
• 1:16:03
  SPEAKER_00: Where do you show up?
• 1:16:05
  SPEAKER_00: And I don't care necessarily where the answer is.
• 1:16:08
  SPEAKER_00: I want to see that you are in proximity to community.
• 1:16:12
  SPEAKER_00: Could be your church, could be your rotary, could be volunteering at the soup kitchen.
• 1:16:18
  SPEAKER_00: But I want to see the interaction of a judge and people who are experiencing life on
• 1:16:23
  SPEAKER_00: the ground
• 1:16:24
  SPEAKER_01: Yeah, I think that's exactly right.
• 1:16:26
  SPEAKER_01: There's no right or wrong here, nor is there any...
• 1:16:30
  SPEAKER_01: Acceptable or unacceptable amount.
• 1:16:31
  SPEAKER_01: People are different, right?
• 1:16:34
  SPEAKER_01: We need introverts in office, just like we need extroverts.
• 1:16:38
  SPEAKER_00: D&D players, just like we need poker players.
• 1:16:42
  SPEAKER_01: And so it's going to be different for each one.
• 1:16:46
  SPEAKER_01: And sometimes you ask a question,
• 1:16:48
  SPEAKER_01: not necessarily because you want to hear the answer,
• 1:16:52
  SPEAKER_01: but you want to observe the reaction to the question.
• 1:16:56
  SPEAKER_01: And I think that might be one of
• 1:16:57
  SPEAKER_00: those examples.
• 1:17:00
  SPEAKER_00: I want to ask you, I think it's such a great question.
• 1:17:04
  SPEAKER_00: Can you give us an example of a time you've seen judicial courage?
• 1:17:08
  SPEAKER_01: Sure.
• 1:17:10
  SPEAKER_01: I'm going to give you the easy,
• 1:17:12
  SPEAKER_01: low hanging fruit example that I would think any candidate should come up with.
• 1:17:17
  SPEAKER_00: Candidates listening to this.
• 1:17:19
  SPEAKER_01: Here you go.
• 1:17:20
  SPEAKER_01: Brown versus Board of Education.
• 1:17:22
  SPEAKER_01: Right.
• 1:17:23
  SPEAKER_01: Yeah.
• 1:17:23
  SPEAKER_01: And why that's judicial courage is it's not just deciding a case.
• 1:17:27
  SPEAKER_01: It's ordering another branch of government to do something against that branch as well.
• 1:17:33
  SPEAKER_01: Right.
• 1:17:34
  SPEAKER_00: Yeah.
• 1:17:34
  SPEAKER_01: That's judicial courage.
• 1:17:37
  SPEAKER_01: And there are other examples of it.
• 1:17:42
  SPEAKER_01: But.
• 1:17:43
  SPEAKER_01: You know, we see in Brown versus Board of Education.
• 1:17:47
  SPEAKER_01: A view of what the court,
• 1:17:49
  SPEAKER_01: going back to that question,
• 1:17:50
  SPEAKER_01: what is the role of this branch in improving the lives of its citizens in
• 1:17:55
  SPEAKER_01: a tripartite democratic system?
• 1:17:58
  SPEAKER_01: Brown versus Board of Education had an answer to that question.
• 1:18:01
  SPEAKER_00: Yeah.
• 1:18:02
  SPEAKER_00: Yeah.
• 1:18:04
  SPEAKER_00: I, you know, I love it.
• 1:18:05
  SPEAKER_00: And just.
• 1:18:07
  SPEAKER_00: Like, nowhere in the Constitution says the remedy for this type of discrimination is
• 1:18:13
  SPEAKER_00: to force the executive branch to bust children and make sure for their safety,
• 1:18:17
  SPEAKER_00: right?
• 1:18:17
  SPEAKER_00: The judges courageously said, no,
• 1:18:22
  SPEAKER_00: we're going to, yeah,
• 1:18:24
  SPEAKER_00: we find this and you're going to have to effectuate the constitutional rights
• 1:18:29
  SPEAKER_00: of these individuals.
• 1:18:30
  SPEAKER_00: This action must be taken by you.
• 1:18:33
  SPEAKER_01: Yeah, and I think questions like that that force somebody to,
• 1:18:39
  SPEAKER_01: first of all,
• 1:18:40
  SPEAKER_01: sort of define what is judicial courage,
• 1:18:43
  SPEAKER_01: and then that sort of touch on so many other larger issues,
• 1:18:52
  SPEAKER_01: not case-related, right?
• 1:18:54
  SPEAKER_01: So completely appropriate question,
• 1:18:56
  SPEAKER_01: I would think, for a judicial candidate, but a really revealing one.
• 1:19:03
  SPEAKER_00: Well, and I will say there have been contemporary many examples of judicial courage
• 1:19:11
  SPEAKER_00: on display during this iteration of the Trump administration,
• 1:19:17
  SPEAKER_00: where I have seen judges make decisions and rulings that have put them
• 1:19:22
  SPEAKER_00: and their families in harm's way.
• 1:19:25
  SPEAKER_00: And they do it anyway.
• 1:19:27
  SPEAKER_00: And some of them very bravely calling it out and saying so.
• 1:19:31
  SPEAKER_00: And so I am very grateful.
• 1:19:35
  SPEAKER_00: Our democracy is fragile.
• 1:19:40
  SPEAKER_00: And...
• 1:19:41
  SPEAKER_00: There are so many instances across the branches of government
• 1:19:46
  SPEAKER_00: of elected officials standing up for the institutions that have saved us,
• 1:19:51
  SPEAKER_00: I think, from losing this fragile democracy.
• 1:19:54
  SPEAKER_00: And we're not out of the woods,
• 1:19:57
  SPEAKER_00: but I so appreciate those people and acts of courage
• 1:20:03
  SPEAKER_00: that I see happening around our government.
• 1:20:05
  SPEAKER_00: Bronson, I want to ask you just one wrap up question.
• 1:20:08
  SPEAKER_00: Sure.
• 1:20:09
  SPEAKER_00: Folks listening to this have been,
• 1:20:11
  SPEAKER_00: you know,
• 1:20:11
  SPEAKER_00: hopefully this has really helped them think about things, develop their ideas.
• 1:20:17
  SPEAKER_00: And just, again,
• 1:20:18
  SPEAKER_00: I'm grateful for you coming on here and having this conversation because it,
• 1:20:22
  SPEAKER_00: I think, is a rare conversation for people to hear from a sitting justice.
• 1:20:29
  SPEAKER_00: If they want to learn more,
• 1:20:30
  SPEAKER_00: they want to educate themselves,
• 1:20:31
  SPEAKER_00: what do you recommend to people that they can do to do the work that you've said
• 1:20:39
  SPEAKER_00: that it takes to have a democracy,
• 1:20:41
  SPEAKER_00: that people have to do some work themselves to figure out what they want
• 1:20:46
  SPEAKER_00: and also what they want to see in their lives?
• 1:20:50
  SPEAKER_01: Sure.
• 1:20:51
  SPEAKER_01: You know, the problem is that we live in a headline soundbite world, right?
• 1:20:56
  SPEAKER_01: And that's how things are fed to us.
• 1:20:59
  SPEAKER_01: And I think what people really need to remember,
• 1:21:01
  SPEAKER_01: particularly when we're talking about the law,
• 1:21:04
  SPEAKER_01: court cases, things like this, we see headlines about, this court did that.
• 1:21:12
  SPEAKER_01: And they're headlines, right?
• 1:21:15
  SPEAKER_01: They're just a couple of characters.
• 1:21:18
  SPEAKER_01: The law is complicated.
• 1:21:21
  SPEAKER_01: Cases are complicated.
• 1:21:25
  SPEAKER_01: There's a lot of moving pieces in them.
• 1:21:28
  SPEAKER_01: And, you know,
• 1:21:30
  SPEAKER_01: I've talked about how,
• 1:21:32
  SPEAKER_01: you know,
• 1:21:32
  SPEAKER_01: judges, there is no black and white judges live in this bit of gray, right?
• 1:21:37
  SPEAKER_01: But then the results of cases tend to be reported as black or white.
• 1:21:41
  SPEAKER_01: That's right.
• 1:21:41
  SPEAKER_00: Oh, I won, you lost.
• 1:21:43
  SPEAKER_00: Exactly.
• 1:21:44
  SPEAKER_01: And I think...
• 1:21:46
  SPEAKER_01: First of all, people should be skeptical, right?
• 1:21:50
  SPEAKER_01: When you're fed a headline that is sort of about the law but is black and white,
• 1:21:57
  SPEAKER_01: it's probably not.
• 1:21:59
  SPEAKER_01: And it's a lot of work to then go and be like, all right, what actually occurred?
• 1:22:06
  SPEAKER_01: There are resources out there.
• 1:22:08
  SPEAKER_01: There are some great blogs.
• 1:22:10
  SPEAKER_01: There are some great commentators that provide sort of more in-depth resource.
• 1:22:16
  SPEAKER_01: But I guess what I would really encourage people to do is recognize that decisions
• 1:22:25
  SPEAKER_01: that are reported by any court or circuit court,
• 1:22:28
  SPEAKER_01: anybody like that, there is a complex story behind it.
• 1:22:33
  SPEAKER_01: There's many moving pieces.
• 1:22:36
  SPEAKER_01: There's lots of issues at play.
• 1:22:38
  SPEAKER_01: And to resist the easy temptation To stop at the headline and judge based just on the headline.
• 1:22:51
  SPEAKER_01: It unfortunately takes some work.
• 1:22:53
  SPEAKER_01: It takes some investigation.
• 1:22:54
  SPEAKER_01: And I'm very realistic of people's time in a very modern world.
• 1:23:02
  SPEAKER_01: But if nothing else,
• 1:23:04
  SPEAKER_01: even if you don't have the time to go beyond the headline,
• 1:23:09
  SPEAKER_01: at least understand that the headline you've been given Probably isn't
• 1:23:14
  SPEAKER_01: the full story
• 1:23:18
  SPEAKER_01: is a healthy mindset in approaching these types of problems.
• 1:23:24
  SPEAKER_00: Justice Bronson James, Oregon Supreme Court, thank you so much for being on the show.
• 1:23:27
  SPEAKER_00: Thanks for having me.
• 1:23:43
  SPEAKER_00: That was Justice Bronson James of the Oregon Supreme Court.
• 1:23:47
  SPEAKER_00: If you take one thing away from this conversation, let it be this.
• 1:23:50
  SPEAKER_00: The people sitting on our courts deciding privacy cases,
• 1:23:53
  SPEAKER_00: deciding what our state constitution actually protects,
• 1:23:56
  SPEAKER_00: deciding cases that could genuinely change how you live here.
• 1:24:00
  SPEAKER_00: They are running for office and most of us pay not much attention to it.
• 1:24:06
  SPEAKER_00: That's not on the judges, that's on us.
• 1:24:08
  SPEAKER_00: So the next time a judicial race shows up on your ballot or
• 1:24:11
  SPEAKER_00: a friend texts you asking who to vote for,
• 1:24:14
  SPEAKER_00: you now know a few better questions to ask than who has the most yard signs.
• 1:24:20
  SPEAKER_00: If you want more conversations like this,
• 1:24:21
  SPEAKER_00: subscribe to Schmidt Show PDX wherever you're watching or listening and follow along
• 1:24:26
  SPEAKER_00: on our Substack for the write-ups.
• 1:24:28
  SPEAKER_00: My name's Mike Schmidt.
• 1:24:29
  SPEAKER_00: Thank you so much for spending your time with us and we will see you on the next episode.