blooded or something a couple months ago or a month ago. No, I know it. Oh, nice. Yeah, it sounds pretty stressful. Maybe we should just start. Maybe it's such a nice night. No one else will join us. I don't know. Oh, there's Barry. He's pretty darn nice. I'll start recording now, OK, Sandy? Sure. OK. Yeah, wait a minute. Everybody, my name is Sandy Baird, and I'm here with Vicki. And this is a presentation to speak tonight and to discuss tonight what the whole idea of court packing or court expansion is going to be all about. The Democrats recently announced a plan to increase the numbers of the Supreme Court Justices, which the Republicans say is packing the court in a derogatory fashion. And the Democrats say is a necessary court expansion. So with us tonight to discuss this issue and what it might mean either way is Jared Carter, professor from Vermont Law School, and I will let him talk about this and see what we all think about it. So chime in when you guys want to. OK, Jared? Yeah, thanks, Sandy. Good to see everybody. Obviously a small group, so I'll sort of give an overview. And then hopefully we can have a nice discussion. And I don't profess to have all the answers, certainly. But I think I'm going to nominate Sandy Baird to be the 10th Justice to the US Supreme Court when we do pack it. But really, I always like to start with the language of the Constitution because we're talking about expanding the court, packing the court, and that's only one of the ideas that this Biden commission is looking at. I always like to start with the Constitution. So my thinking is to sort of touch on what the Constitution says about the US Supreme Court, then talk about what the law says about the US Supreme Court, and then some ideas about the rule of law and the court, and the importance of maintaining its, to the extent possible, it's apolitical nature. And why I think, A, there's a 0.0% chance of the court actually expanding. And B, if it were to be expanded, why I personally think that would be a bad idea. Even though I would be the first to admit that I am concerned about the makeup of the court right now and the decisions that it might hand down. And then hopefully we can have a nice, robust conversation. Because as I said, I don't have all the answers, certainly. So the Constitution, which is the document obviously that structures the government, provides pretty little in terms of what the court should look like, what the makeup should be. Here's what it says. It says, the judicial power of the United States, and this is Article 3, Section 1. She'll be vested in one Supreme Court, and in such inferior courts as Congress, made from time to time ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall at stated times receive for their services compensation, which shall not be diminished during their continuance in office. So one of the things that the founders are really concerned about was the, and they were very, of course, all sorts of flaws with the Constitution, and that's why there's a process for amending it. But one of the things that they were very concerned about was the independence of the judiciary. And so when you look at that language, some things that jump out to me that they serve during good behavior. So a bit vague, right? I mean, you've all probably been bad at some point in our lives. So what does good behavior mean? The idea is that you can't just remove a Supreme Court justice because Congress feels like it, to insulate it from politics, to insulate the justices from a president or Congress saying, well, we don't like the direction the court's going, so we're gonna remove you. That wouldn't be bad behavior, presumably, but it is a vague term. They will shall receive compensation that shall not be diminished. So the idea is similarly, obviously Congress under the Constitution has the power of the purse, sets the budget, but in order to maintain the independence of the judiciary, Congress can't cut their pay if they don't like what they're doing. Because obviously, everybody's gotta pay light bills, even Justice Roberts, who apparently has a pretty nice place on an island off the coast of Maine, but everybody's gotta pay their light bills so if you can control someone's salary, you could potentially influence the decisions of the court. So it was clearly important from the start that the court be independent. And one point that I would just sort of add to the conversation is, for all the critiques of the decision of the court, and there's many decisions that I don't like, and there's many decisions that potentially could come down the road, whether it's reproductive rights, whether it's rights around sexual orientation, civil rights, decisions. I am very concerned about where the court might go, but I think it's very important to depoliticize the court because in the long run, I think if you look at the decisions of the court, for all of its flaws, there has been progress and the court's been a very important part of that. So whether you look at the decisions around suffrage in 1922 and lesser v. Garnett, U.S. Supreme Court and obviously a constitutional amendment, making the right to vote universal, regardless of gender, allowing under the constitution, protecting the right of women to vote, whether you look at Brown versus Board of Education, which obviously desegregated the schools, the public schools, and a whole slew of other cases, whether you look at more recent cases like Obergefell and Bostock, that enshrined the constitutional rights of all people, regardless of sexual orientation, or you look if your interest is the environmental movement, you look at decisions of the U.S. Supreme Court around the ability of organizations, say, to sue to protect an endangered species or to protect public lands for future generations, the court's been a very important part of it. And it's worth noting, I think, that if we're gonna be honest, the court has no power to enforce its decisions, whether it's Obergefell, Brown, or Lujan, which is an environmental law case that often comes up. The only reason that the court's decisions carry any water is because all of us, or most of us, believe in the rule of law. And we're willing to say, even if we don't like a decision, that is the rule of the U.S. Supreme Court. And the risk of politicizing the court is that when that decision comes down that we like or don't like, the majority of the population is not willing to follow it. And then you end up in a really difficult situation. So even in the short term, if we could add justice to the court that we might agree with, regardless of which side of the political spectrum we're on, someday we're gonna all need the court to make an important decision. And if it's lost its credibility, because it's been a political hot potato, then I fear for that future as somebody that practices law. So I think it's worth thinking about it from that perspective. Now, that constitutional provision that I cited you all to a few moments ago that I quoted doesn't say very much. And so we've seen, this isn't the first time that this has come up. In fact, when the first Congress met in the late 1790s, the 1780s, the original Supreme Court had six justices. And it's fluctuated over time. Everybody sort of refers back to the FDR instance, I always get the line wrong, but it's the switch in time that saved the nine or something like that. Where FDR and the New Deal laws that he was trying to get through kept getting struck down by the Supreme Court. He threatened to add a justice or two to switch the balance. And one of the justices switched their vote as a result. That's the most recent instance, but the truth is the Supreme Court has fluctuated six justices, nine justices, eight justices. It's been nine since 1869 after the Civil War. So it has been relatively stable since. And I think that's a direct result of that is this simple fact that according to, I believe it's an AP poll, recent AP poll to the extent anybody believes polls, but fine, an AP poll, the only branch of government that the majority of Americans have trust in is the judiciary. They don't, it's not a great amount. It's only 55%, but Congress and the executive very little trust. And so in light of the fact that someday, probably soon we're gonna need the Supreme Court and our fidelity to the rule of law, even if we don't like those decisions, I think it's important to maintain that. And my fear with any drastic changes, it doesn't mean maybe there's some changes that we could make to improve it. I'm happy to talk about those a little bit. But I think any drastic changes, including adding members or particularly adding members, risks politicizing the court. And even if we get short-term gains in the longterm will be bad for democracy, because the court in the end is the only check we have on a runaway executive. Whether that's Donald Trump, Joe Biden, Bernie Sanders or whoever it may be one day, it's the only check we have. And that doesn't apply just to the executive, it applies to Congress as well and all of the agencies whether it's the Department of Defense, the EPA, I mean, all of them, it's the court. And it's important to remember that unlike the executive, which has the commander in chief power to control the military, and unlike Congress, which can control the purse, the court really has no power except for the fact that we all give it power through our belief in it and in the rule of law. And so that's why I have real concerns about making significant changes. Jared, I think there was a question, yeah. I was just wondering, couldn't the court lose credibility just by, I guess, its own behaviors over time? I mean, if it swung one way horribly for a very long time, it could lose credibility in that way as well. I'll tell you when I lost some credibility was during the Civil War. I mean, right out of like the Tawny Court, the one that decided the Dred Scott case. Right. And Lincoln, who we think of as the person who saved the Constitution, I've got a quote actually that I wrote down that I wanted to share from Lincoln because I think it's an interesting one when we're thinking about the Supreme Court, especially coming from Lincoln, who we do, we think of as the guy who saved the Union, the Constitution. In his first inaugural, he said this about the Supreme Court, which I think is interesting, but it was in response to the Dred Scott decision. He said, the candid citizen must confess that if the policy of the government is to be fixed by decisions of the US Supreme Court, the people will have ceased to be their own rulers, having resigned their government to the hands of that eminent tribunal, which always strikes me as interesting because in some ways he's absolutely right. I mean, the Supreme Court is the most undemocratic part of our government, right? Nobody votes for them. They get lifetime appointments. Their pay can't be changed. There's no real check on them. And that's a fair point. On the other hand, if they become overtly, I mean, look, there's no question that we know who the liberal justices are and the conservative justices are. So to a certain extent, we're deluding ourselves to think that it's not political. Of course it is political, but it's less political. There's checks on that direct political nature and the process that the court goes through that don't exist in the other branches of government. So the flip side of Lincoln's quote, which I think is a legitimate fear, is that if it became a sort of a more democratic body, then is it able to protect the rights? Even if we don't like the rights that sometimes it protects, is it able to protect those rights because it becomes so political? So I think, Lou, your point is well taken and certainly there's been, and Sandy pointed to one, but there's certainly been times where a vast percentage of the population didn't believe the court was to left or to right. And I think that's the nature. It's gotta make tough decisions. But in the end, even though, I don't know, maybe others know there's a significant portion of the population that thinks the Roe v. Wade decision was not constitutionally sound and think it's horrible. But we accept it as a society as the law of the land. That doesn't mean they don't try to change it. And I'm sure people on here wouldn't want it to be changed, but it is the law of the land. And so I think the possibility of politicizing the court through adding justices, particularly if you're adding justices, the long-term harm outweighs perhaps the short-term benefits. That makes sense. Okay, but Jared, would you talk specifically about the democratic idea to pack it? Why do they want to pack it? Well, it's pure politics. It's always been pure politics. Anytime we've talked about adding members to the court. And so I'm happy to chat about that just to be clear. What has happened is a commission has been created. And for anybody that's worked in politics, what do we know about studies? When the Vermont legislature says we're gonna do a study, what does that usually mean? Nothing. Nothing's gonna happen. Nothing. We study whether we should study studying something. It's a place where ideas go to die, right? So that's why I say I think this is 0.0% chance of really anything happening. But this commission is looking at whether the legal history and legal authority of Congress to expand the court. Cause it's important to know Biden couldn't just add justices. It would take an act of Congress. So it'd have to pass the house and the Senate. And the Senate is very evenly split. Even if they could get all Democrats to go along, I'm sure at least one Republican would fill a buster. And so you're never getting to 60 votes. But this commission is gonna study that. It's also gonna look at the idea of term limits, which I think it's interesting, whether it's constitutional or not. I mean, I read you the provision of the constitution. Term limits, that seems less problematic on its face. And then the other idea, which I actually think is an interesting one and may actually be worth looking at, but I think I have concerns about it as well because the rules around recusal for justices. So in the lower courts, Congress in the district courts and the circuit courts, Congress has set forth rules for when a judge should recuse themselves. The Supreme Court sets its own rules. And there's been critiques of both liberal and conservative justices who have say investments in a particular company or their family member or a trust that they have some interest in, has investments in a party before the court. They haven't recused themselves. And I do think that that is a problem. And so I would personally support changes around that, probably, but there is still that risk of when you have a legislative body deciding when and how recusal should happen of politicizing the court in a way that harms it as an institution. So those are the possibilities. Why do I think the Democrats are proposing that? I think probably everybody in here knows the answer to that. I think they're concerned about Roe v. Wade. They're concerned about cases like Bostock and Obergefell in particular environmental decisions that are likely to come down based on the makeup of the court and change. And I think that's why they're proposing this. Simple as that. Can I ask another question before we move on? But I don't understand, I guess, the Republicans, rather the Democrats' ideas on this subject because they might lose power one day. They might not be the party in rule anymore. They might, they will. And well, okay, but right now they have one party rule except for the court. And so I don't get it why they don't understand that that could be turned against them. If they get to pack the court, so will the Republicans the next time. Right. Well, and that's exactly, I think, yeah, absolutely. And that's why I think it becomes, if we engage in, let's leave aside the idea of changing the recusal rules or maybe term limits, those seem slightly less political. But if we engage in this idea of every time a new party comes into power we're adding or subtracting justices, then the idea of an apolitical court is completely out the window. I mean, it's 45% of the way out the window already, but 55% of the people trust the judiciary and that it will do justice as a general principle. So I think, yeah, if the Democrats add three this time, then next time the Republicans subtract six. And then the Democrats add three and the Republicans add nine. And it just becomes essentially a super legislature. Hey, Jared, has it always been that way in terms of percentages of people who believe in the court? Has it gone downhill? Do you know anything about that? Yeah, I haven't looked at historically whether it's gone downhill. So I don't know the answer to that, but the polling I've seen, and there's a few in the past couple of decades, the Supreme Court or the court, the judiciary, I should say, not just the Supreme Court, but the judiciary has always been the most trusted branch, at least for the past 30 years. Thanks.  When you look at Congress, it's like 22% and the executive is like 27%. So it's pretty significant in that sense. And so that is my concern. Yeah, if it's the Democrats this time, it's the Republicans next time. And then when we really need the court to stand up and say, no, separate is not equal, or no, you can't discriminate against people based on sexual orientation, or yes, you must protect a woman's reproductive rights.  Not listening, make us listen. And remember, unlike Congress, the power of the purse and the executive, the commander in chief, they run the military, the Supreme Court only works because we all accept as a society that it works. It has no power. The Supreme Court doesn't have a police force to go out and say, you gotta listen to what we said. They have no way to coerce other than that faith in the rule of law. And so that's why I am concerned. Yes, I fear for some of these really important decisions that have been handed down in the past decade. And I will do everything I could as a lawyer and potentially representing people to try to push back against those. But in the end, I think if we bail on the principle of as apolitical of a court as possible for short-term gains, which I would wanna see, then in the long run, it's not gonna be there for us when we need it to help us with the progress that I think probably many of us would agree has been made. It's always two steps forward and one step back. That's the story of the law and policy. And all of you are activists and engaged folks know that. So we've gotta think, I think about the long game even if it doesn't feel great now and we're legitimately concerned. Somebody else has anything before because I do have another question, but anyone else? Have something to say? Okay, I was gonna say two things. One, although people, I think most Americans right now on the left, suspect, I guess, that the current court is very conservative. However, there's no guarantee of that because every justice has the right and does change their minds. Even someone like Roberts, John Roberts, he was suspected to be a Roman Catholic, right? And a conservative, and he is now the Chief Justice, but he issued a very decent decisions. He's basically turned out to be a bit of a liberal, I think. I was trying to think of the one that I was most surprised about. Well, everybody points to inciting on Obamacare, the Affordable Care Act. But Obamacare, he decided that Obamacare was constitutional and no one expected that from him. I don't know if you can really suspect or expect on any individual justice, how they're gonna go because they changed their minds. Right, I mean, there's been others in the past. And I think that is a result of the fact that, yeah, Andrew Coney Barrett was appointed by Donald Trump. But she has no, she owes him nothing now because she has a lifetime appointment. And so while I do think we all sort of know who the liberal and conservative justices are, there is among those nine people, a respect for the rule of law, respect for the integrity of the court. And I think Roberts particularly as the Chief Justice, and he's written decisions I vociferously disagree with, but as the Chief Justice, I will give him credit for at least in some instances, trying to find that sort of, I don't know if middle ground is the right word, but that ground that will depoliticize the court. And to Sandy's, this is Lou, and to Sandy's point about having a justice change is mine. I mean, that's what happens on a Supreme Court is they can change each other's minds. Exactly. I mean, that's the whole point, right? Is that they have to argue. Well, they also have to argue about substance. They have to argue based on the law. A politician really doesn't. A politician can just stick his finger up in the wind and decide what way to go. A justice, really, if they're doing their job has to have, they have to base their decisions on law and on precedent. And that, I would guess, many of them have a conscience about that, even though they were appointed by Trump or Obama. Well, wasn't it Kennedy that wrote Roe v. Wade? I think so, yeah. He was appointed by Reagan. Well, then also Justice Souter turned out, he was appointed, wasn't he by Reagan as well? And he turned out to be a liberal too. Or even Justice Scalia decided free speech cases that were in terms of free speech. And no one expected any of that from a Republican appointee. So I think that we too easily dismiss justices as somehow political beings when they, they have another standard they have to make. They just have to do it in their own conscience. They are lawyers and they have to depend. They have to make their decisions on the law and on precedent. And that's different than a politician. I really wanna believe that.  And I don't know how to... It's hard for me to give him any benefit of the doubt. But you got to, because he's there. Well, I think, here's what I would say. There's certainly, and I don't know whether Kavanaugh will fall into this category in sort of from history's perspective or not, but there's certainly, we look back at Justice Taney who wrote the Red Scott decision and it's a national embarrassment. I forget who wrote the Koromatsu decision, which said it was constitutional to have the Japanese internment camps. And that's as in law school, we learn about that as it's still actually good law, but it's a national embarrassment. And it's really shunned. And so certainly there'll be justices who, don't pass sort of the test of history. And we look back on as embarrassments. I don't know if Kavanaugh is one or not, but maybe he will be. Not yet, but we don't know yet about Kavanaugh. Do we, Beth? I mean... No, we don't, we don't. All right. We don't know about Coney Barrett either. Yeah, we don't. You know? So that I think is really a good point. But I'll tell you the worst decision that was ever made by the Supreme Court to me was Bush v. Gore. That was 100% political, it seems to me. But other than that, I mean, you could even find a basis in the law for the Dred Scott decision. And so here, I think that's a good point because here's how I sort of, I agree. I think the decision was bad. Which one? But in the end, I accept it as I disagree with it, but that's the law of the land. And that's what, if you read Al Gore's concession speech, I think I've circulated it on some of these emails in the past. I think it was one of the most powerful speeches ever given for that very reason. He touches on this idea. And so you could see if, you know, most of the country didn't believe, even though they disagree with it, that that's the law of the land, then we're in a real crisis. And I think there's an, the credibility is so important. And without that, there's really nothing. Even if we don't like it, we still generally, or the majority of the population, finds their decisions to be credible or valid. Okay, anyone else? I think the saddest decision that's been made recently, and maybe you can correct me if I'm wrong, that teenagers can be given life sentences. Oh yeah. Yeah. I think that was passed by, you know, in fact, I think it was six to three, maybe, was it? I don't know. Anyway, I'm sorry. Yeah, look ahead. Why don't you comment on that? Cause I don't know, that just happened, didn't it, Robin? Well, yeah, recently. Yeah, I forget the name of the case. And I would agree, a horrible decision, but I still keep coming back to, well, it gives us something to work on, right? And that's part of the beauty in some ways of our federalist system. Vermont doesn't necessarily have to follow that, or wherever people are assuming in from, doesn't necessarily have to follow that. And Sandy had discussions about states' rights over the years, and I think there's, the left has missed the game when it comes to states' rights. The idea of states' rights to sort of become a conservative talking point, but I think actually you could, you could talk about states' rights from the reverse and think about the opportunity, especially in state like Vermont, where we can call up the governor or lieutenant governor and they'll answer their phone, you know what I mean? Sometimes. They can make positive change. And so running away from states' rights and always running to the federal government, sure, bad things have happened in states. Don't get me wrong. But it's also empowering for citizens like us who are engaged if states can make change. And so while I think that's a very problematic Supreme Court decision, it also gives us something to work on here in Vermont or here wherever we are.  And, you know, I think in some ways we've got to have faith in that process. I know that maybe isn't particularly comforting, but... Reason, I mean, I sort of agree with you on states' rights. The reason, of course, that states' rights has always been questionable in the United States is because of the Civil War and because the state... Right, but I don't necessarily think that states' rights is a bad idea. Certainly during, prior to the Civil War, the states in the South and in the Confederacy, the states' rights argument were used to justify slavery. And that's what Jared and I have had discussions about because the men from the Confederacy that went off and fought for the Civil War said that they were fighting for states' rights and those individual Confederates, soldiers may have been, but the rulers of the South were fighting for states' rights because they feared that the federal government was going to outlaw slavery and so they seceded when Lincoln was elected because they knew he was going to put slavery on the road to extinction. So that's... The states still do horrible things. Yeah, I know. Even today. Again, whether it's around reproductive freedom, sexual orientation, I mean, there's states that are doing terrible things in places I wouldn't want to live as a result. But on the other hand, we can, you know, and as we should complain about those things, but it also is empowering in some ways because we in our community can, you know, change the way things are. And so there's a great quote from Justice Brandeis. I forget the name of the case, but his essential quote is, you know, that the beauty of federalism is that one courageous state or city or town, if guided by courage, can light the way for the rest of the country without risking harm to the rest of the country. Of course, there's a flip side to that. I can appreciate it, but it also is an empowering principle. So when the Supreme Court rules on something, I accept it and I say, well, that's the way, you know, I guess now minors can be punished in that way. I don't like that, but I feel, I also feel empowered to work to change it if that's what, you know, where my passion's in my energy lie. We really should do a whole session on the rights of minors in the criminal system, I think. There is something though that I wish you'd comment on also Jared or anyone else. I would like to have someone, maybe you, Jared, comment about how does a case get to the US Supreme Court? Why don't you talk about how that happens in the first place? How does a state go? Yeah. Yeah, so there's, so the Supreme Court has what's called original jurisdiction over a very limited number of cases. And I forget exactly what they are, like Admiralty and a few other cases. Otherwise the cases move through the federal court system. So again, we have a federalist system. So there's the federal courts in Vermont where a small state, there's only one federal district court. In some states, there's multiple, right? There's a middle district, a central district, a northern district. And so cases move through those federal courts, all of whom, all the judges are appointed by the president or a president. And then there's a right to appeal to the circuit courts. And Congress has expanded the number of circuits over the years. Originally in 1789, the makeup of the circuits was not really, was not what it is today. There were district court judges and then a Supreme Court justice would ride the circuit quite literally, and those were the circuit courts. Today we have circuit courts in which judges are appeals judges. There are circuit court judges and there's multiple circuit courts. There's a right to appeal to a circuit court. And then if you want to, you can appeal to the United States Supreme Court but the US Supreme Court gets something like 10,000 appeals a year and they only grant what's called cert, a petition for certiori on about now, about 70, 75 cases. And so that's how it ends up before the, before the US Supreme Court. And all it takes to get a case, well, not all because that makes it sounds like it's easy, but of the nine justices, you've got to get four to agree to grant the petition. In other words, hear the case. And if four of them say, let's hear the case, they'll hear the case. And so that's the process through the federal court system. You can also appeal from a state Supreme Court to the US Supreme Court. But the federal courts, including the US Supreme Court can only hear certain types of cases. So the federal courts can only hear cases dealing with federal law or the US Constitution. So the US Supreme Court would never be, well, not never, but almost never be in the business of interpreting the meaning of the Vermont Constitution or the meaning of Vermont law, unless there was an argument that a Vermont law violated the US Constitution. So state law and state constitutional cases always end up at the state Supreme Court, here in Vermont, the state Supreme Court. Federal issues or federal law questions or US constitutional questions go up ultimately conceivably to the US Supreme Court. So that's how they would move through the courts and end up there. And we're not really sure how the Supreme Court decides what take case is to take, what case is not to take. We have some ideas based on the cases that they take that they are more likely to take a case if there's a split in the circuits. So in other words, if the second circuit says the Constitution protects the freedom of speech of public school children. And the 10th circuit says it doesn't protect the freedom of speech of public school children. Well, that would be weird in one country to have different constitutional rights depending on where you are under the US Constitution. So that would mean that the US Supreme Court would be more likely to take that case up to resolve that, what we call a circuit split. So that tends to be one way in which cases end up at the US Supreme Court. Okay, someone else? Neha, I wanted to ask what do you think any of the new restrictive voting laws will end up in the Supreme Court? Are they on anyways? Yeah, I personally think there's a chance that they will. I mean, obviously we don't know, but if you get four justices to say, let's hear it. I know that many of them, the lawsuits happened the day they were signed or the day after they were signed. And when you're talking about voting rights, among other things, you're talking about the First Amendment. So I wouldn't be surprised to see those certainly move up through the courts. A lot of times the US Supreme Court will sort of wait, not always, but sometimes they'll wait and see what the circuits do, let the circuit courts sort of wrestle with the issues, let them do the research and write the decisions to sort of, excuse me, see how things are sort of sussing out. So it might not happen right away. But on the other hand, with something as fundamental as the right to vote, maybe the Supreme Court would take that up more quickly and not have it sit for four or five years. I'll give you what I think is more controversial even than that is the right to bear arms. Second amendment, what do you think? There are gonna be restrictions I would guess about guns. Yeah, I think there will be. I think that didn't President Biden do something about guns recently? And that was an executive order. I don't know where that will, what he did. So the executive order, again, it was sort of one of these, let's study it, executive order. So the executive order asked the department, I think it was the Department of Justice to look at promulgating a rule and they had a certain amount of time to deal with what's called a ghost gun, which apparently is like a homemade gun that doesn't have a serial number on it. So it's untrackable how to regulate those and propose a rule to regulate them. And then I believe the other piece was, I wanna say looking at the so-called gun show loophole. Hello? Hi. Sorry, my mic's very loud. Hi, greetings. So I think those are the two things and I don't know that either of those rules have been proposed yet, but they'd go through a rule-making process, but it wouldn't take an act of Congress probably, but they're very, I'm sure there would be litigation over those. Right, right. Another interesting one we're talking about, a lot of the, there's 34 states that are considering anti-riot laws or have adopted anti-riot laws. Yeah, right, Florida, Florida, right? Florida adopted one, Oklahoma's got a pretty draconian one and some of the First Amendment considerations around those are pretty troubling. So for example, under Florida's, it appears, and it obviously hasn't been tested in court, that if something was deemed to be a riot, then if you were at that protest, even if you were not engaged in rioting, breaking things that you could be charged under the law, there's another troubling provision that makes it an affirmative defense. In other words, it's a defense.  And then there's been a few more recently with people driving tractor trailer trucks through protestors. It would be an affirmative defense. If you ran over somebody, if it was deemed to have been a riot, you could say, I'm not liable because that was deemed to be a riot. So I think that's another piece that's particularly troubling from the First Amendment perspective because obviously all of us could be out peaceably protesting, which is protected. And if we were harmed by somebody like that, then we'd have no recourse in civil courts. So I think those are really problematic and I anticipate those might end up before the US Supreme Court. Have any of them been passed? I thought that they were just proposed in Florida. The Florida one was passed and the governor signed it. There's already lawsuits. The one in Oklahoma, I believe parts of it passed, but there's 34 states that have different, varying anti-riot laws. Okay, what about anybody have any other questions? There's somebody I guess in the chat, Beth. Is that right, Beth? Beth? Just wrote yes. So I don't know if you have a question, Nia, but go ahead if you have one. Okay. She does. How do you feel about having to something? Wear a mask. I don't have to wear a mask anymore. I've gotten, I'm two weeks out from my second vaccine. So I don't feel anything about it. But that's not ever been a law anyway, correct? About wearing masks or not wearing masks. Right. It's not a law. I think it's a recommendation. And what, and my guess, somebody changed it today.  I have no idea how he's gonna, how anybody will tell who's vaccinated or not though. Can't. I know, right. I think it's basically unenforceable in a lot of ways. But I mean, I think it's a fair question, a tough issue. Ultimately, I think it's probably gonna fall to private businesses to decide. And it's worth noting that a private business, unlike the government, doesn't have to, there's no constitution that applies. So if, I don't know, what's your favorite store on Church Street or wherever, if they decide they wanna have people wear purple and white masks over their eyes, mouth, and nose, there's nothing that anybody could do to stop them from a constitutional perspective from doing that. They can't discriminate based on race, gender, sexual orientation, ethnicity under federal law. Or religion. Or religion, exactly. But, you know. So I have a question which might be really naive, but. I love hip hop. I don't know Little Peep, though. There's the idea that the court is not political. But the appointments in the last couple of years have seemed very political. Always, always. And so, there's no one broke any laws, right? In not allowing Merrick Garland to go forward and yes, allowing Amy Brown, whatever, to go forward. So it's just, you just have to, we're just relying on how Congress decides to. Yeah, I mean, so yeah, I agree. I mean, I think the blame lands on all these politicians. Mitch McConnell certainly politicized the court with what he did with Merrick Garland. But he didn't do anything wrong. So. He certainly didn't do anything legally wrong. And I think, right, we could, the Democrats could one up him or whoever could one up him and further that game, tip for Tatt. I, for an eye, makes the whole world blind, though. Right, but that's what you were saying, is that it feels really unfair and it makes me really angry. Absolutely. But you're talking about the law. To channel that anger, to get, I mean, in Vermont, we obviously, but maybe people in Kentucky will channel that anger. I don't know. I mean, I wish I had a better solution than that, but. And as you said, it's the long game because if otherwise we, this just, this just continues the tip for Tatt sort of. The most angry I was ever about the court was over Bush v. Gore. You know, I don't, in some ways, even, I do understand what Jared's talking about. And I also agree with him. But at that point that the court actually appointed the president of the United States, stopped the recount, appointed the United, the president of the United States, we got without a recount, essentially. That was pretty political and pretty disastrous. However, what was the choice, riots in the streets? It's worth going back. And again, I think I sent it.  It's worth going back and reading Al Gore's concession speech after that decision. What did you say? You just said we have to accept it, right? I mean, it was essentially this idea, yes, yeah, yeah. Okay, I did want to mention a little bit about Roe v. Wade unless people, other people have some other thoughts. So we, I guess we're going to expect to have some kind of a restrictions around abortion. And this is how it's going to happen, I think, is that some state is going to make a really a very restrictive rule around abortion. And that's going to go up to the United States Supreme Court. And then the court is going to have to find if it is in violation of Roe v. Wade and whether or not Roe v. Wade will be overturned. Everybody, and that might happen. And I think many people feel that it's going to happen. But do people really know what then happens if Roe v. Wade is overturned? And I think Vermont is in a really good position. What happens if Roe v. Wade is overturned? It's not the end of the world in a way. It's not the end of the world. Yeah. Go ahead, Jared. Go ahead. Yeah, I was just going to say, I think what happens is if Roe v. Wade's overturned, it would give states the ability to regulate more. It doesn't mean they have to regulate more. And you'd see certain states, more conservative states, you'll pick your conservative state to shore, doing much more strict regulation of, it wouldn't force Vermont to end abortion. Vermont, no state would have to do that. I think if all they did was over Roe v. Wade. And I think that's a possibility. Yeah, right. See, that's why it's important to understand, I think, what the procedures would be. Many people think if Roe v. Wade's overturned, many people think that if Roe v. Wade's overturned, abortion is outlawed, which is not the case. Then it will devolve to the state to decide. That's the only difference. Hello? Hi, Mary. Somebody told her. She's doing it deliberately. I know. I believe so. But what that mean, the legislators in the last session passed a very interesting law in the state of Vermont, which stated that it codified Roe v. Wade into Vermont law. So if it's overturned on a federal level, Vermont still is protected at this point and has protected women's rights to choose. There was weirdness in that also, and people like me and Lou were very cautious about approving that legislation. Because of course, the legislation can be easily repealed and overturned. But if Roe is, in other words, overturned, it does not mean that abortion is automatically outlawed and people should know that. People should really understand that. Okay? How do you guys share a larger light in? Okay. Anyway, I guess I think we're being zoom bombed. Right? I think so, too. It appears. I don't know for sure. What? Anyway. Anyway, does anybody have any other questions at all or thoughts? About abortion, it's still, even though it's legal in Vermont, it still is as a hush-hush, it's very hush-hush. It's very hush-hush, it's very hush-hush. I mean, I'm sorry, I mean the UVA medical center was, I mean, had to be pressed to offer abortions, right? I mean, people were going to plan to plan to parenthood. It's still considered, it's still considered, though legal, it's very, it's still considered a hush-hush and controversial and do you know how many, do you know how many abortions that have been performed at the UVM? Yeah. No, but I will say that UVM, I kind of in a way disagree with you, Jane, respectfully because the medical center took a very brave decision and decided to perform abortions in the first place. They have had over the years, the medical center has had a majority Catholics on their board. No abortion. So they, the medical center decided in the face of serious opposition that they were going to do elective abortions. I thought that was pretty brave. And that's the way it stands now. Do I know, which makes, which makes abortion a medical procedure. Basically abortion is now a medical procedure period. It hasn't, it doesn't have the moral trappings at least in Vermont of anything more than a medical decision. Of course, because it's going to be controversial, I think.  I've seen much more creative zoom bombs in my day. I know. Well, I haven't. This is the first one. The first day of second grade for my son, there was a zoom bomb when it was, we were all on zoom.  And then someone started drawing giant phallic symbols, which was a lot more humorous than whatever this person's doing, I thought. Anyway. Okay, well, we're almost at a close anyway, but I did want to answer somebody Lou or Beth that said, you know, that you, that you were very angry about Kavanaugh, right? Or whomever, and that these are all political appointments. Yeah. In general, that's been the case throughout history. There was probably no one more political than Roger Tawny who decided to dread Scott decision. And in that decision, what Tawny and the court decided, well, they were slave owners, first of all. So they are terribly political and what they decided in that case was that black people had no rights that the court or any American court law, no rights that anyone had to respect, none, zero.  So there was a legal reason behind it. However, it was deeply, deeply political, but it's not the first time that a president has nominated and appointed people to the court that he didn't expect back political loyalty. I'm sure Trump did that. I'm sure that Bush will do it, did it. I'm sure that Biden will do it too if he gets the chance. They all do it. They often, however, get surprised. Sometimes they get surprised, right? Which I think John Roberts is a surprise, right? What do you think, Sharon? Yeah, I think, I mean, I think John Roberts, in my view, is an institutionalist in the sense, yes, he's a conservative justice, but he believes in the institution and will vote or write accordingly some of the time, not all the time, but some of the time when he believes sort of the credibility of the institution is at stake. And again, I don't know that I agree with him on many things, but I certainly respect that piece of it because I keep coming back to this idea that if we don't have faith or credibility in the rule of law, then all is out the window when we need it. All's up, right. All's up for grabs in a way, right? Yeah. Okay, any final thoughts or questions? Okay, I think Beth, next week is the People's Law School, right, that is happening next week? Yes. The People's, and I think, is that the presentation on tenants, landlord and tenants? No, that's the one, it's the one on social benefits, SNAP and Medicare. Okay, so SNAP is food stamps, I think, right? Yeah, and that's next Wednesday. Okay, so thank you all. Thank you, everybody. Sorry for the Zoom bombing. All good. See you next week. And Lou and Betsy and Robin, I hope Monday at four, correct? Yeah, thank you. I'll be there. All right, great. See ya. Bye-bye. Bye-bye.


Hi everybody, we're back, this is Dave Vellante with Stu Miniman, this is theCUBE, Silicon Angles production of Edge 2013, we're here live at the Mandalay Bay. Jeff Guntner is here, he's the director of storage practice, lead at CMI, integrator, reseller, flash systems expert. Jeff, welcome to theCUBE. Thank you. You know I did some research before I came on and you guys maybe know this, but out on the web they call you the ESPN of tech. I love that. Thank you. I've been with Dan Patrick and Vakini May, this is like incredible. We tried to dress the part as you can tell. We should do a top ten afterwards or we're done. That's actually a great idea. Well anyway, welcome and thank you for the compliment, we appreciate that. So Edge is a big show for you obviously as IBM partner, we're going to get into that and talk about it, but just give us your impressions of Edge. It's fantastic, so year two, I know you guys were here last year, IBM's really needed a conference like this for storage specifically because IBM is a player in storage, but you always hear EMC in that app and IBM is somewhat of an afterthought, but as you heard Ambush say we're becoming a forethought and we've been selling IBM storage for 36 years, we've been in business. So IBM storage is very much a part of our DNA and we have a very solid portfolio and it's great to share it with the industry, clients, prospective clients and I love it. I think Edge is a great event, it's only going to get bigger and better and just like our storage portfolio. So it's exciting, it's going to be here. So talk about CMI a little bit, talk about your specialty and how you're helping clients solve their problem. Yep, well we're located in San Francisco Bay Area, so we are regional, Northern and Central California and we specialize in a very specific segment of the market where its customers mid-market as IBM's defined space and GB, so less than 100 employees up to maybe 10,000 employees and we really have three practice areas that we specialize in. So the first is business continuance, the second is storage management and the third is data center optimization and everything that we do is backed by two tenants, strategic principles, strategic consulting, assessments, CIO as a service, implementation of strategy and then tactically we go through and we can help clients not only develop the plan through our process but also do the implementation and be very tactical and we use IBM technology to do it. So what are some of the big themes you're hearing from customers? You go on an initial call or even a client that you're seeing for the nth time, what are the patterns that you're hearing in the client base? There's two big ones right now, it seems like it's the back, the summer of backup and recovery. Backups are fundamentally broken, customers know that they're broken and they're really scared about doing restores so the two discussions we get into, backup being one, the second one is flash systems, you mentioned at the top and we see a lot of growth in this space, we've actually done a lot of flash implementations, end of 2012 into 2013 and it's a hot area for us solution-wise. Well so let's unpack each of those, backup, I love what you're saying here, ESP on attack, backup is broken, you sound like you've worked for Wikibon and so backup is broken and we've often said data protection as a service is the fix but getting from point A to point B ain't easy but why do you say that backup is broken? It's what our customers tell us and I think it's true for any vendor, it's backup is, I like the way you position that, data protection as a service, it's a good framework, we can unpack that but I always tell people backup is an application, you might say but it really is an application in the data center that gets neglected and people take for granted that data is just getting backed up, nobody does a restore, so... That's a very high performance demanding... It is, right and we see multiple methodologies in the market, you've got the incremental forever, you've got a flat file backup, you've got continuous data protection, so you've got some of the things that we do with our N-Series, NetApp, SnapManagers, disk to disk and a lot of discussion for us is around cloud too, backing up to the cloud, getting it off-site but still providing enough data protection for the customer and moving away from tape, people hate tape but fundamentally economically for your storage environment, it plays a critical part, so I don't think you're ever going to get away fundamentally all the way from tape but people are really trying to do it. Well, I mean we agree that you probably don't want to use tape as your primary backup but you still, you probably should have some tape. People do, they're actually here at IBM, there's a bunch of sessions on LTFS, so there is use. I'm curious when you talk about kind of that low cost, does Amazon Glacier come into discussions of your customers? It does. How can it not at, what is it, penny per gigabyte per month? It's penny per gigabyte but it's, you know those iceberg charts? You got to pay attention to what's under the iceberg. It's an attention grabber though. It is. You saw your penny and then you really belly up to the bar and you have to figure out, okay well how much data am I going to take out? What's my cost to get it out? What's my cost for the pipes? Will they ever see it again? Yeah, exactly. What if the Amazon site goes down? So it does come up. It comes up in an archive, a deep archive, where they know they're not going to do the restore within 90 days, maybe six months. So definitely in the context, we're also being an IBM partner with the IBM Object Store Cloud, which is an Erbonics offering. We're also an Erbonics partner. So that comes into play as well. Yeah, so we often say that one of the problems with backup and one of the reasons why it's broken is it's a lot of customers do one-size-fits-all. In fact, we just did a study on this, saw the preliminary results. The predominant response was yeah, backup is for us, is we got one service level. That's it, take it or leave it. So by definition, you're never going to get it right for the workload and the application. You're going to either be spending too much or too little for your backup. And that's a problem. I totally agree with you and that's why we start when we enter all those discussions, the customer says, hey, my backup is broken. So well, when was the last time you really did a business impact analysis? Because the next question is why backup parlays into DR, which is big for us as well. And folks don't want to do DR because it costs too much. But they don't spend the time to really sit down and figure out what those critical applications are. And really, well, maybe I need to back up these three with this LA, SLA and then the rest of them can have a lower one.  So are you able to point to some examples where you're actually implementing backup as a service or data protection as a service? Not yet.  And then that waterfalls into what their DR plan is and getting them close to the dream. Yeah, we live in the dream here. Alright, now let's get into the flash. Sure. So IBM put a billion dollars, you know, up on the table. So we're going to invest this in flash and on April 11. Big move. That was made you happy. It was very happy. Very happy. What is the cut? Did the customer see that? Did they notice that? What's what's the reaction been in the client base? Customers did notice I was in the actually the solution center last night. And one of the guys from IBM was holding the flash system and there was literally like 20 people crowded around him. So it's it's hot, right? People want to know. So there's no shortage of that. And our clients love it because for two reasons. Number one, it's accessible now. It's real in terms of price performance. And nine times out of 10, they're willing to spend the money to solve the problem. What's database acceleration, it's just improving an application to increase revenue because they need to do more with less. So those are really the two odd areas for us around flash database being one of them. We've got a lot of case studies. We actually have an TCO ROI chart where we can go in and we can tell you works well with the Oracle clients, do an Oracle AWR report, get the report, we sit down, we analyze it, we can tell them with 99% certainty whether flash is going to improve the environment and by how much that water falls into our TCO where we go through and we tell the client, well, how many Oracle cores are you running today? Okay, yeah. This is where the CIO starts to care, right? Flash, okay. But when I start to save you software costs, licensing costs, maintenance costs, that's where it becomes really interesting. And we've done that and done it successfully. And the model works. So you got examples of that? We do. You know, handful, dozens? Yep. We have clients here at Edge. They're walking around and we did, I did a panel yesterday. So we uncovered that. I don't know, Stu, when did we do that study? But it was several months ago, maybe six, nine months ago. Yeah, earlier this year. And it was, wow, the light bulbs went off and we talked to a number of customers. It was basically where they were spending maybe $100,000 more on storage. Right. And they were saving literally millions on the back end on cores, but more importantly, Oracle licenses and maintenance, massive savings. Yeah, we did a case study with a client last year where it was a non IBM vendor, let's say, a very large array. They were running on. And we went in, we did the proof of concept with them, showed them Flash, showed them how much they could reduce their core count by and they saved a few million dollars by moving to Flash. So I understand Oracle is going to change its licensing policy. It's now not going to price just on cores. It's cores times Flash capacity times two is actually how the new pricing is going to be. The America's Cup isn't September. Larry does have to, yeah, it's kind of, boat problems. Well, but I mean, I'm joking, but Oracle is actually quite good at morphing its model, you know, whether it's virtualization or whatever to make sure that that net contract value increases. Jeff, I wonder if I can ask you a question about just kind of IBM and Flash in the field. So many in the industry have kind of criticized IBM because they're not first and maybe not even second, but, you know, what's your customer adoption bin of Flash? Where do they, do they see IBM as a thought leader in this space? Is it hitting the market at the right time? You know, where does it fit for your customer environment? It's a good question. So for us, being in San Francisco, we're in the hotbed of Silicon Valley. So we see pure storage. We see nimble. We see Nimbus. You name it, we see it. And those guys do a good job of innovating and get driving, helping drive customer demand, validating the market. And then what you see happen is EMC buys Extreme IO, right? IBM buys Texas memory. So everybody starts gobbling up the small players. So in terms of IBM, they may be slow to do something, but I think they always generally make the right decision. And they take their time to assess the market, which sometimes is frustrating for us. However, we know that when they make an acquisition, they're going to improve it and make it better. I think XIV is a great example of that. The store-wise acquisition with real-time compression for V7000. And now this Texas memory acquisition has been phenomenal. We're doing at least one client engagement a week sold, but we're having two, three, four customer dialogues about improving their environment with Flash. And it generally centers around the database, or it's a C-level led initiative where they need their reports at 6 a.m. And right now, they're getting at 10 a.m. So it's about better business insights, and Flash is a very quick, simple, easy way to do it. So I love this discussion. So you lived through the tier 1.5 bubble, right? Which is great. I mean, good acquisition with XIV. I mean, 3-par going for 2.5 billion. Compellent went out. Icelon, you know. That was a phenomenal wealth creation event for the storage industry. Well done to many of our friends out there. So that's fantastic. And several have posited that you're going to see the same. Sort of, I guess, deduplication went through a mini version of that. It did. And many have said, OK, Flash is going to go through a similar type of phase. But then you've seen IBM made a move with TMS. Granted, TMS has been around a long time. EMC, instead of paying 2.5 billion down the road, spent whatever, let's say a few hundred million for extreme my own. Do you expect the same kind of, you know, but who's left, right? Oracle, I guess, could buy somebody HP, really, is paying down debt before it buys companies. You know, what do you think about that? I think there'll be some more acquisitions. The next kind of two targets in my mind are violent memory, which SAP has put a lot of money behind, and pure storage. So we've seen in Northern California a lot of pure storage. They have 2,000 customers now. I'm sure you guys have talked to them on the weekend. Yeah, we know Scott. He's from theCUBE. Great product, and they're growing very well. So they're either going to IPO, or they'll get acquired, or maybe, and or both. You never know. So I think those are the two that I have in my mind. Nimble seems to be catching on a little bit, but not as at scale as violent or pure storage. Right. And now, do you resell other Flash, or just pure Flash systems? We do. We resell violin. You do? Mm-hmm. So where do you, let's have that conversation. Where do you use each? Where do you recommend each? Presumably it's client-driven, but help us squint through that. It really gets back fundamentally for us of having the conversation with a client, and having a business discussion, and figuring out what the total problem is, what the solution needs to be, and then going from there. Even though we are a violin partner, I do fundamentally think that, excuse me, TMS is a better technology. And in the things you can do with it, coupled with SVC, it's the right direction. You guys have probably seen it, there's kind of two things going on in the market. There's either an appliance model, or you take a pure storage model where you've got compression, deduplication, Flash, and it's truly a Flash array. It's innovative in that it's using Flash, but it's not really innovative for the storage industry. It's still the same paradigm, it's still an array. So I think we'll see who wins out. So you said TMS fundamentally a better product, architecture, whatever, with SVC. Did I hear that right? Because of the stack, because of the storage stack that you get? You can do both, we do both. So we do TMS straight up attached to a server, and then we do TMS, or IBM Flash now, with SVC. And the former, who's doing the storage management, the application presumably. Right. Okay, so you look for situations, that's the TMS legacy, that's really where it's sold. Correct, or you manage it as an array in the environment. It's very easy to manage. Okay, and then compare that to the violin approach. Violin, you know, OEM's a semantic stack, right? That's relatively new. Okay, so what makes TMS better? I think for us, it's the simplicity. It's the data density, so in 1U, 20 terabytes, 500 watts, compared to violin 3U, same densities. So it's packaging. Packaging is a huge, and our clients have small data center footprints. Even if you have a large data center footprint, so density, power, and cooling performance, they all matter. And that's not to say that violin doesn't perform, or somebody else doesn't perform, they all perform well. It's just, I think density matters. And the innovation in engineering is what we like. Awesome. All right, Jeff, well listen, thanks very much for sharing your deep insights. Definitely a tech athlete there, Jeff. I appreciate you sharing with us. Yeah, you are welcome on theCUBE anytime. Boom goes for dynamite. Yeah, to boom. And we actually have, you know, John Furrier, my partner, we have an office in Palo Alto, we've got a studio out there, so love to do more with you. Yeah, absolutely. All right, everybody, keep it right there. We're right back with our next guest. This is theCUBE, we're live from Edge.


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