 Good morning. Thanks for joining us. Our last pre-election think-tech session, we have the honor of having with us today three leading legal lights. We have Van Davis from the University of Toledo Law School, a preeminent constitutional scholar and professor for many years, Jim Alfini, former dean at Northern Illinois School of Law and South Texas School of Law and professor at both. Also an extremely highly reputed and respected constitutional and judicial ethics scholar, and Jeff Portnoy, another constitutional expert, First Amendment in particular, here in Hawaii, and the newest elected member of Hawaii's Judicial Selection Commission. Welcome, gentlemen. So, do we need a question or is there something on your mind that you'd like to jump right into? Break out the champagne. Get it ready. For blue? For Tuesday night, hopefully not in two weeks from Tuesday. Well, you know, one of the questions I have is, my God, how can you keep up with all the different state rules? I mean, some states don't allow them to start counting the ballots until Election Day, which is crazy. That's going to delay things. Some states, you know, will allow mail-in ballots to be counted, well, the North Carolina, up to nine days after Election Day, but they have to be postponed, I think, by Election Day. Right. But still, I mean, all of these things are subject to challenge and they are being challenged. Are we going to—my question is, are we going to know by 8 p— well, by midnight on Tuesday who the winner is? Yes. I really believe that. I've been following, you know, the polls, and I know the polls were not all that accurate in 2016, but the margins between 2016 and now, not only in the popular vote, but in the so-called battleground states, make it fairly clear that this could be a landslide, not only at the top, but hopefully down ballot. Now, obviously, I'm sitting out in the middle of the Pacific with Chuck and Hawaii is a non-issue, but I even see where there's been some very prominent Republican. I read it even on a Fox. I went on Fox just every so often just to see what the crazies are doing. And they quoted a very prominent Republican without attributing to someone that if Trump doesn't get 48 percent of the popular vote, he can't win. It's impossible. And he's at 40, what, 42? 42 to 44, depending on which state, yeah. Yeah. So, and then you look at the, you know, the double-digit leads in Michigan and some of the Midwest states, double-digits. Minnesotans. Newport is at eight. You know, I don't want to count my chickens before they perverbally hatch, but I hear them chirping. Well, you know, out here in exotic Toledo, Ohio, you know, we are pushing people to vote. You know, I was just at the Walmart today and I came in the door with my, I voted bad John and, you know, you just talking to everybody and say, did you vote? Did you vote? You know, just making sure people, and then there are phone banking and all that. So there's a full court press going on right now to get the vote out, to hopefully lead to a result that is going to be more positive. But I want to ask the two professors a question, though, on all the cases that have been in the news dealing with voting rights and the Supreme Court, some people argue inconsistent decisions or including not taking cases, whatever, James, in particular, you mentioned before we got on the air whether voting rights should be state decided rather than federal decided. And I think the conservatives on the Supreme Court have made it pretty clear that it should be hands off at the federal level and at the United States Supreme Court that each state should decide what their voting rights and rules should be. What do you two academics think about that? Well, I think you start with the notion, and I think even the liberals would sign on to this, that because it says in the Constitution that state legislatures pretty much decide state time, place and manner of elections, at least in congressional elections, they read into that all elections pretty much. And so it should be up to the state legislature. So in the Pennsylvania case, though, that went four to four initially, you have had a situation where the legislature had decided one thing and the state Supreme Court had overruled the legislature and decided another thing, essentially, as I recall, saying that ballots could be counted up to three days after the election day. And the justices, I think, divided four to four on that because the conservatives essentially were saying that the legislature, the Supreme Court of the state doesn't have the power to overrule the legislature constitutionally. And the liberals, I think, were saying, yeah, but this has to do with voting rights and voting suppression. And that's has to do with this bundle of rights that we have in the Constitution. And so, yeah, state Supreme Court can overrule a state legislature. So I mean, but that's just one sort of aspect to these things. I think you're absolutely right. Nothing is set in stone here and where they're all going to come out. And then you have the other problem of this ninth justice, who sat it out, has sat it out so far. She sat it out most recently saying that I'm just, I just got to the court. I haven't had time to read over the briefs and things. So I'm going to sit this one out. I don't think she recused herself. But now there's been motions for her to recuse herself on these cases because she's ostensibly partial. You dance with the one that brung you. And the one that brung her is the Republican party. So she's going to dance with the Republicans. I don't know. I would hope, and we've talked about this for the last several months, about the independence of the judiciary. Maybe I'm living in another era, but I have to hope that she, like all the other justices on the Supreme Court, and on all courts that aren't elected, by the way, don't allow that kind of influence to overtake their judicial reasoning. It doesn't mean I have to agree with it or not, but it would be a sad indictment of Justice Bartlett. If she was found to have voted one way or another because of who nominated her, not that she doesn't have the same views on issues. You know, but let me ask you guys this, because this is something, Chuck, I've been thinking about, why should you allow ballots to be counted after election day? I don't get it. I really don't. I mean, there should be a requirement that ballots be mailed in so that they're received by election day. And I don't understand, you know, like North Carolina, where it was at nine days after election day. I don't get it, but that's just me. Well, Jeff, as a guy who lived overseas for 17 years, and there are some estimated 10 million Americans who live overseas independent of the military types, I think that's part of the idea there. As long as it was postmarked, you really can't control how the foreign mail systems will operate at the same time. And so I think that's part of the flexibility that's been in there. And maybe for, I think North Carolina has a lot of military bases, so they probably have a lot of overseas military types. You know, that might be a reason that they would have maybe a more flexible standard than otherwise. But, you know, so it doesn't bother me that it take, you know, a number of days afterward, it has to help to make sure that everybody's votes counted. What bothers me is, okay, if we have the states doing this, all right, states, can you all kind of agree on like a standard thing for federal elections so we don't have the hodge pod? I mean, you've got your sovereignty, we respect your sovereignty, but can we like all be on the same page? I mean, is really Wyoming so fundamentally different from Hawaii or Texas in terms of time limits to get things? I don't know, I just, that's one of the things that bothers me. I wanted to ask about Jim's wonderful article that he did on judicial ethics, because we're kind of getting there and talking about Barrett. What, you know, the Supreme Court doesn't have any ethical rules, they get guidance from, so to speak, right? And so, some of us are bothered, I guess, by those decisions that are made by the Supreme Court justices that refuse themselves or not. She dodged it for these ones, but what about in two weeks time? Yeah, I think she's going to be weighing in on some of these cases. Some of these cases may not be decided until after election day, but they may have an effect on how ballots are counted. One of the things I brought up in that article was that because I'm co-author on a judicial ethics book, I tend to get calls from the press periodically when judges are ostensibly misbehaving. And about, God, it's close to 15 years ago now. I got a call on New Year's Eve from ABC News in Washington, D.C., the national desk, wanting to interview me about Supreme Court justices taking gifts. Justice Thomas in particular was allegedly taking all sorts of interesting, a Bible owned by Frederick Douglass, a bust of Abraham Lincoln, but gifts that were worth considerable amounts of money. And the, some of the other justices as well, and they wanted to know about that. And so they sent a cameraman out to my house and I sat there for about close to an hour being grilled by one of the, the reporter in D.C. And afterwards I thought to myself, did I say anything that's newsworthy? And I guessed right. The one thing that they had me on there saying was when I leaned forward and said, every judge in the United States is subject to some ethics rules except the nine justices of the Supreme Court. They don't have any ethics rules there. And that's why I wrote that article to some extent, saying, you know, why not? Hey, guys, you know, we've had enough experience with judicial ethics rules. Why don't you come up with a set of rules that govern you? But Chief Justice Roberts has explicitly said they use the ethics rules for guidance, the ethics rules for U.S. judges for guidance, but they don't really need to impose them on themselves. It would create all sorts of problems, all sorts of issues. So on something like recusal, whether Justice Barrett should recuse herself, because she's too close to the Republican Party at this point in time, is something that is entirely on her. No, no, the other eight justices don't get to weigh in on that. She has to decide, she has the discretion to sit or not to sit. And I have to say that I'm, more of a mind with Jeff on this, that I think that we sort of have to trust her to make a good decision on this and sit or not sit, depending upon how she comes out on that. Hey, if they didn't come up with ethics when Abe Fortis was on the court, they're not about to do it now. Well, yeah, but let me ask you something. During her confirmation hearings, Sheldon Whitehouse did this presentation that really struck me, where he said there were 85 to four decisions that went in favor of somebody's interests who were Republican donors, and it was an zero by the court in terms of five, four decisions. I didn't do all the detailed work underneath, but that was really stunning as a presentation. Now, some people don't think it's a big deal. Maybe all the Republican donors had great lawyers to get to five, four, but 80 zero seems like a pretty amazing number. Well, you know, this is not an original quote from me, but elections matter. I'm sorry, I have no sympathy, none at all for all of my colleagues on the left whining and crying about what happened. I mean, it's because you guys and everyone else elected Trump, either by not voting, not getting people out to vote. The president has the right to nominate. I know the hypocrisy. I'm not talking about that. That's just brutal. But what's wrong? He had the right, you know, I mean, maybe Ginsburg should have stepped down when Obama was president. How about that? There are a lot of people talking about that. She knew she was sick. She knew she was very elderly and she hung on. Why? Why do that? You know, why? Because she, like everybody else, was convinced Trump wouldn't win, right? But, you know, that's the way it is. I'm not in her mind. You know, the one I really liked was David Souter, who I think when he turned 65 said, I'm going fishing. But it must be great to be, you know, the gift to the law, so to speak, as a Supreme Court justice, and how many of them have we seen that have hung on? I guess Byron White knew what it was. I said, okay, it's time for me to go on. The one that was the Sonderdale Conner, because I think part of her thing was to take care of her husband who had Alzheimer's. And, you know, I'm not talking about whether, you know, let's take Ginsburg was competent or not. I mean, she clearly was competent. I'm talking about the politics, because that's all anybody wants to talk about. You know, you're right, Jeff. I mean, what about Thurgood Marshall? He hung on. And what happened? Justice Thomas. We got Justice Thomas. Right. Thurgood Marshall. But you're right. It is the politics of the thing, you know, a Republican president, the elder Bush got to appoint him, you know, right? Well, see, I think it's great that they just decide when they when it's time to go, as I am deciding with regards to here, you know, she wants to hang on till the last, you know, last minute. Okay, somebody wants to leave early or early compared to what I think that's their own personal. Let me ask you two academics again and Chuck, I'm taking over your role. But I got these questions that I would love to have these guys answers to. I don't think there's any chance in hell. Sorry, can I say that we're on cable or whatever, that the Democrats are going to pack the court. But what about term limits? Is that constitutional? Can Congress now impose term limits on the Supreme Court? That I think if it's legal and constitutional is is much more likely. Well, the Constitution says during good behavior, right? I like to I like to remind federal judges that that's what it says when they behave themselves. They're there. I think that would be unconstitutional. I don't think there's any question about that. But but what would be constitutional, I think, is packing the court. Congress could. Oh, yeah, that's been done. Yeah, Congress could decide to go to 11 or 13 justices. The court, the court has been other than nine at various times in our history. You know, we get it big enough so we three could be on it. Okay, it has to be 100,000. 100,000 obviously revert. Here we go. Well, I just think the whole thing about Barrett to me is, you know, you know, there is a good news to the Barrett saying if you look at the polls, I think it's like 58 to 42 in the poll yesterday on CNN about who would do a better job of appointing Supreme Court justices. So politically, the Barrett thing, although as the, you know, as the McConnell said, who cares? I've done what I need to do, you know, no matter what happens on November 3rd. Indirectly, you know, it probably put a few more votes in in Biden's camp. But look, we're stuck six three for, for a very long time. And you know, elections matter. Again, I'm the wild eyed optimist on this. You never know, she could she could change over time. She could become a have a different judicial philosophy. I think Renquist towards the end of his life was was was chilling out a bit. Look at Roberts. Roberts has made some decisions with the liberals recently. Look at Souter. You brought up Souter. Yeah. Well, look at look at John Paul Stevens. He was a Republican appointee. Yeah. I hope does bring eternal. I am I am more pessimistic. I actually saw a comment on the common lists that was saying that Roe v. Wade is a red herring. That really what the whole thing is about is about destroying the administrative state, you know, the sort of delegation doctrines and things like that, that you've got six three for like wiping out a lot of the administrative state, which is sort of a long term interest of some of the business interests. And that that that I think is going to be an interesting part of what they do. So remember, you always have Congress can figure out a way if it works at it to overcome a Supreme Court decision. Yeah. Yeah. No. Yeah. Yeah. You know, I hear you. I just I mean, Congress struck down the vote you the Voting Rights Act and we didn't have the appropriate Congress to reinstate it. They strike down this whole thing. Obamacare to me is a wonderful political thing. But talk about red herrings. So they strike down Obamacare on January 28th. And if there's a Democratic House and a Democratic Senate, there's a new Obamacare. You know, it's a Biden care a month later. I don't get this whole big deal about about what's going to happen at the Supreme Court. Right. Right. That was an interesting thing I thought about. We're doing a debate is when Biden said I'm going to do Biden care. I was like whoa, you know, he's like, I'm taking that seat, you know, so I thought that was very well, don't don't forget. Initially, we were surprised. Remember what happened when the when Obamacare first came up before the court, you had all the Republicans from the Congressional Republicans sitting in the front row waiting to hear the good news, you know, that it was that the Commerce Clause didn't allow this. And in fact, that's what Roberts started to say. The Commerce Clause doesn't let Hey, but wait, there's this taxing clause. And so Roberts crossed over, and we got a five to four decision upholding in Zabelius upholding Obamacare initially. And I remember him actually making one of his, you know, they, the Chief Justice isn't likely to talk to the press after a decision, but we had our school, our law school had Chief Justice Roberts teaching in our summer broad program in Malta. And he said, I'm glad I'm escaping to the island fortress of Malta. Yeah, well, there's an example, you know, we can be surprised once in a while. I think there's a reliance interest to that's in the background of all those people who have gotten that Obamacare so far, those preexisting conditions. I've seen Supreme Court justices who don't agree with this, but they said a lot of people have been relying on it. And really, do I want to do that kind of overturning? But what is distressing about the whole Supreme Court nomination process is how politicized it's become. It really is distressing. No matter what side you're on, it's distressing. I mean, what happened, what happened with Kavanaugh, what happened with her, what happened earlier with, with, with Thomas. And again, I don't agree with any of them. Politically or otherwise, the whole process, you know, we used to we used to confirm Supreme Court justices 96 to nothing. You know, now it's Republicans versus the Democrats, no matter who the nominee is. And it's become such a politicized process. I don't think that's good for our democracy is all I'm saying. Well, I think I read that back in FDRs time, you know, when Frank Ferdinand was going on the court or trying to think of who else that, you know, there were hearings about them because this was, you know, a Jew on the court kind of thing. So, you know, this has got a history of sort of, and certainly when Thurgood Marshall came on, that was part of sort of getting the comfortable the country comfortable with him during those hearings. So the politicization, if I could say it like that, I think it has a, you know, it always has this history. Yeah, I'm sure, you know, but now it's theater. Now it's theater because it's televised. I mean, the same questions are asked of every nominee of how are you going to vote on X, Y and Z and every nominee has the same answer. Right. Not going to tell you. So unless you, unless you have, you know, a history of decisions by that judge, and you can question he or she about your decision in X versus Y, it's just theater. I mean, you know, and you think the judge has got a skimpy history, right? So, you know, you got like, now she had law review articles, but of course, you know, that's me just being myself in the law review doing my academic freedom thing. So that's, you know, whatever's there. I was disturbed that the late information about her being on a board of a school that didn't allow the children of gay LGBT folks to be students at that school, you know, I when I was a kid, we, you know, we went to schools to get me in as a kid. And you know, it was the classic one was the principle saying, well, if it was me, it'd be okay. But out on my board, there are people who really don't want black people here. You know, I remember that as a kid. So, you know, I think about that. I mean, these are kids, right? That's who cares about the parents. These are kids that she could have been in the vice president's wife. She qualified for that. That's how she feels. Fair enough. I mean, that bothered me. Those are legitimate. Those are legitimate. I think those are legitimate. You belong to an all male club. We're going back now. Right. You belong to an all Christian a club, you know, you know, you wore a Ku Klux Klan robe. I think those are all those are all Halloween. It was by the way, I'm wearing blackface today. Thank you. Yeah, you can't even say that anymore. You can't say that anymore. No, you can't. As we come into our last minute, let me throw one last question out there for you folks, especially the constitutional scholars. Biden's talked about judicial system reform. Is there any constitutionally permissible reform that might enhance the merit selection of Supreme Court justices? Well, you could go to the Hawaii system. I think Hawaii's got the best system. These are for all your Hawaiian listeners here, but I think it's true. Hawaii has a merit plan. So go to a system where you have a nominating commission. Jeff, people like Jeff are on there. They take applications and recommendations and then give to an appointing official the top three and let that person choose from it. That happened here, right? The Federalist Society gave Trump a list and ranked them. And that's the difference between the state and the federal government. Gentlemen, thank you so much for your time. May we all be in a place next week where we can breathe more freely, whatever that may be for you. Stay on. We'll debrief a little bit.