 Days before the elections with Ben Davis, U of Toledo Law School, Professor Jim Alfini, Dean and Professor Emeritus from Northern Illinois Law School and Southern South Texas Law School, and Jeff Portnoy, our leading First Amendment constitutional scholar here in Hawaii. Gentlemen, lots of possible topics today. Ben, thanks for sharing an absolutely magnificent article. Do you want to give us just a quick intro of what you're talking about with that? Yeah, just real quick. I was watching the Judge Barrett confirmation hearings and heard her mentor herself as Justice Scalia being her mentor and that she was an originalist. And so that caused my old, originalist question to pop up in my head that I always asked them because I have an ancestor or I have ancestors who were enslaved and owned by one of the founders and framers of families, the Harrison family, Benjamin Harrison, William Henry Harrison, who ended up being a president long after. And so what I usually would ask originalists as my objection, as opposed to the usual ones, was just what if you have a personal objection to a founder or a framer because they owned your ancestor? And the other part of it was also I found out later on from my sister that it's not just that he owned them, that I actually have his DNA in me. Okay, I mean, that's how deep it was. And so I wrote to a piece that that's a question I'd like her to answer. I didn't once ask Justice Scalia that question and big dinner 400 people at the Inverness Club here in Toledo when he came. And the back and forth was kind of fun and that he first said to me, well, the people made the Constitution. Of course, everyone says, people, what do you mean? It was white men with property, right? I mean, so there's a lot of people who are not white men with property at that time. And then he said, well, I should man the barricades, you know, be in the streets like May 68 in Paris. And I was an untenured law professor at the time. And I'm like, I'm a law professor, you know, I, you know, radical in the street. And he said, well, you have to be logical. And so that was fine. So, you know, I stopped the back and forth. And then he said, which I think was really interesting. You've got to get over slavery to me like that. The resounding applause at the time. And but on the way out, and I'm here in Toledo, this white couple said to me, he didn't answer your question. And the wife of a judge who's at the same table as me, she spoke to me with very strong emotion and pride about her great grandfather who had fought for the Union during the Civil War. And it so moved me actually, I was driving to D.C. once I stopped at Gettysburg to see the ghosts, which is incredible. Gettysburg is incredible. And I went into a little store there and bought a U.S. Army belt buckle, which was made in China, but you know, which was because she said that he had gotten shot. But what had saved him is that his belt buckle had blocked the Confederate bullet. So I sent that to her and sort of remembered so. But you know, Comey Barry is not really an originalist. What she should call herself is a federalist. And that's why these hearings have gone a little bit off the rail. You know, I mean, this was, as we all know, a fate of complete, but getting into the weeds on originalism and how the Constitution is to be interpreted, what they should do and should have done and some tried was get into the federalist society, her membership in that society, her adherence to all of their politics, positions and legal positions. I think the country would have been a little bit better served understanding really where she's coming from. Yeah, that's a good idea. And where is that? Well, I mean, you know, I think what we have now are literally, I don't know how many hundreds of judges who have been nominated by the Federalist Society. I mean, they have provided Trump with lists from district courts to the Supreme Court, and he is nominated off of those lists there. I don't know if there's more than a hundred that could be 200 judges sitting now who are members of the Federalist Society. And it's a very, let me be charitable, a very conservative organization whose views probably follow those of Ben's relatives, indirect relatives who own plantations back in the mid 1800s. I think that's the most charitable way to put it. I mean, they're anti-gay, they're anti-voting rights, they're anti-women's rights. I mean, they are going back to the 1770 in their views of what the law should be. I mean, that's really a common way of saying it. You guys probably have a much more intellectual way of defining who they are. Yeah, they were founded in the 1970s, and Justice Scalia was one of the founders, one of the originators of the Federalist Society. I think it's probably best to see them as a reaction to the war in the era, you know, the Warren Court, and even the Burger Court to some extent, extended the rights of the accused. We had Roe versus Wade, and all of a sudden these people said, hey, wait a minute, let's put the brakes on this. And originalists is part of their thinking. The problem I have with that term, I think, is that it really is an extreme way of looking at the Constitution, has been so carefully pointed out in his piece. And there are conservative justices. A good example would be Souter and O'Connor and Kennedy that really don't subscribe to the originalist thing. I mean, I remember when we were holding our breaths that Roe versus Wade was going to be overturned, and then Casey came out, and those three got together, and I think basically what they said was, we have to be concerned about the integrity of the institution. This has been decided, people have relied on it, and so, you know, maybe we can quarrel a little bit about the reasoning, but we can't overturn the basics. And I think that's institutional integrity is where the justices all should be, and I don't think Barrett is there. I mean, she's too much, I think maybe even more than Scalia. I think she'll bond with Thomas on the court. Hey, and Jim, you have been one of the leading people in the American Bar Association on ethics, and if my recollection is correct, not that long ago, you and the ABA Ethics Commission had some of an encounter with the Federalist Society judges. I'm going to tell us a little bit about that. Yeah, actually, I wasn't directly involved in this, but there's a committee of the Judicial Conference of the United States, which means federal judges, that basically makes changes to the Code of Judicial Conduct for federal judges, the U.S. Judges Code of Judicial Conduct. And they had put out a memo recommending a new provision that would have said that federal judges could not be members of the Federalist Society or the American Constitution Society, because they took basically stood for political things. And at the same time, they said the American Bar Association is okay, because it's a more neutral body. Jeff, this is where the Federalist Society comes in. They got a petition from, I want to say, about 300 federal judges who all said that they were members of the Federalist Society and there were outrage that they would have to quit the Federalist Society. The moral of that story is they didn't withdraw it, but they basically put it on hold. Yeah, you know, I don't know whether he is or isn't, so I'm not making a statement, but our Chief Judge here actually talked to me about that because of the First Amendment ramifications. I never asked him, nor did he say whether he was a member, but he was very outraged by what you're talking about and the attempt to force judges to not be members of the Federalist Society. So it hit home even a little bit here in Hawaii. Yeah, right. And Mark Bennett's a member, so he's a Ninth Circuit Judge. Oh, is he? I didn't know that. He is indeed. He was one of the signatories to the letter of outrage. I'll tell you all, I have a Federalist Society t-shirt because one of my students bought me a membership. This was after grades were in. Or for a year there I was and I'd sell him for his birthday. I would buy him a membership in the ACLU, which I mean, you know, there is a legitimate argument about what the role of judges are. I mean, you know, I think I think you can make an argument both ways. I mean, you know, there are judges who say their job is simply to interpret the law as written, whether they like it or not. And then there are the other side that say, no, courts are supposed to expand the law if they believe the law is unjust or, you know, how they interpret the Constitution literally or not. And unfortunately, I think we are seeing a significant influx, right, of those judges at the federal level who are federalists or originalists and who believe that they're not there to make law. And, you know, if you can't get the second branch of government to change the legislature, the law, that's just the way it is, right? And they look at the Constitution the way it was written and claim, if you don't like it, that's why there's a way to amend the Constitution. So, you know, I think the three of us probably feel differently about what the role of judges should be. But lots of people who believe the contrary. But if you look at the opinions of a lot of those federalist-oriented judges, there's no doubt in my mind that they're making policy. That's BS that all they're doing is applying the law. That's bullshit. Good example is our, we started early voting here in Texas this week. And record turnouts, by the way. But at the same time, our governor, Greg Abbott, who's a Trump ally, reduced the number of, he basically shut down dozens of drop off points for mail-in ballots. And basically what he decreed was there's only going to be one per county, one drop off point for it. Well, some of the Texas counties are as big as the state of Rhode Island. So, it'd be hard for a lot of people to get to that point. And so, they brought suit and a federal district judge actually said that he was suppressing, that it was unconstitutional, that he was denying some people the right to vote. He was suppressing voting. It goes on appeal to the Fifth Circuit and a three-judge Fifth Circuit panel overrules the district judge and upholds the governor's order. All three were Trump appointees. So, unless you live in California, Jim, where the Republican Party are putting drop boxes on every other corner and then collecting the ballots themselves, it's unbelievable. The only real evidence of voter fraud in the first month of voting is the Republican Party in California putting out their own phony drop boxes. What else can happen? What else can happen? So, the Secretary of State writes the cease and desist letter, which I think is supposed to end at five, you know, the timing of that is five o'clock this evening, right? Okay. And I'm looking at that and I'm saying you should maybe do like Michigan. Remember those guys in Michigan who were making those robocalls to people by saying, if you vote, you know, by mail, you're going to be put on the list and all that stuff. So, what do they do in Michigan? Criminally charge them. Boom! You know? And I'm saying, when I looked at that happening, when the party says, oh, we're not going to listen to your cease and desist order, it's like, well, why don't you just charge them? Just bring the case. Bring the case. You know, get, you know, whatever the chair of the party is, arrest them. The states and local have been left on their own and the federal response has been appalling. Yeah, but they interviewed, they interviewed, you know, I watched CNN last night and also MSNBC, no surprise. They interviewed a few people, you know, at this Trump place in Pennsylvania, and this is no different than what I've seen for weeks now about going to these rallies and, you know, one person and I know they represent lots of people say it's in God's hands. I'm not worried. And then someone else says, hey, if I get it and I die, I die. I mean, these are millions of Americans. It's unbelievable. Well, you know, just on the, the God's thing, you know, I always, I've been waiting for somebody to say them, you know, God created Corona too. So I guess that was that what he only, he only did it to strike down the sodomites. Oh, that's what it was. Is that so, you know, that's, you know, no Republicans are supposed to be getting sick. That's right. That's right. If you're God's mind, right. Jay, if you're right, and I hope you are, that it's going to be Biden Harris, at least those are two people that I think have the capacity to heal some wounds and develop a consensus. What do you think? I don't, I don't see it, Jim. I think they're the right people. But, but, you know, you just watch those rallies and it's like, it's like they've all been brainwashed. It's like Hitler. I mean, I'm sorry to say it. It's like Hitler. You watch the old film of the 1930s into the early 1940s of the Hitler rallies or some of the Soviet Union rallies. They're no different. They're no different. The people are, are, it's mind boggling me. CNN went and interviewed yesterday. I don't know if you saw it in Pennsylvania. They went to a rural community, a rural county that voted for Trump. And some woman, 2016, built a little house, which he now calls the Trump House, where she sells Trump paraphernalia. And they interviewed her and she said, oh, in 2016, people found this novel and whatever. She goes, you can't believe how many people have come through. She had a book this thick of signatures and they showed the line stretching as far as I could see for people to walk through the Trump House to buy a Trump t-shirt, a hat or whatever. Jim, I, I don't know how you're going to do it. I just think, I just think, I think it's the civil war without the war. Well, my wife thinks I'm an uncurable romantic, but I like to remember those moments during, during the most heated protests, Black Lives Matter versus skinheads, where they caught on tape someone from Black, someone with a Black Lives Matter shirt debating, you know, a proud boys guy, and they wound up shaking hands at the end. I think it's possible. It's tricky, but I think people can get together. To some extent, they're angry about the same things, you know. So what is going to happen with Trump? Do we think when he's gone? Do we think he's going to shrink it to the background like Bush, or like, you know, Obama? Or is he going to be out there, you know, stirring up his, his base? I don't think so. I don't, I mean, he is an enabler of hate. If he doesn't get convicted, by the way, yeah. He's going to be out there worrying about that. But I think he is, there's no doubt he is an able, an enabler of hate, but he does it for only one reason, and that's to get elected. When that's not the table, he doesn't really have a reason to be out there doing that, you know. Right. Well, I figured there'll be Trump TV. That's what I think is what's what's going to happen because the adulation is just too strong for him, and he can make money doing it. That's where he made some big good money. So I don't know if it's inside of Fox or somebody else, but he's going to find a way to be a commentator. That's- Do we have a, do we have a two-party system come January? You know, how will the Republicans remain as rabid as they are right now, you know? Sure, sure. But I'm not, I'm, you know, we've had a lot of bad times in history, right? So it's like, things will change, things will change. You could say that in a way that it's only of the country, you know, imagine this was 80% of the country was left. Well, then- That's progress. Then the four of us would be in Canada. Yeah, yeah. Or New Zealand. I've never been a big fan of the two-party system. I know that that sounds like sacrilege, but I wish that some of these third parties would gain some trust, particularly like the Green Party. You know, it's been there. It's hanging in there. You know, if you get some charismatic leaders in that party, they haven't had any. You know, having a third or fourth party, I think might be a healthy thing. I don't know, Jake, those third parties cost us Donald Trump. But the state structures, the partisan structures that are basically killing third-party candidates by making the hoops they have to go through to get on the, on the ballot so incredibly complex, you know, just because it's like a Democratic and Republican game, so to speak. And that's something that's bothered me a lot over the years, that not being allowing really, I don't know how it would be done, but just, okay, if you want to run, you get your signatures and you do it, but you don't put people through so many hoops. And then you have a free-for-all and then you end up, who ends up wherever they do, you know. So gentlemen, in our last minute, final thoughts, we're going to come back just before the election on October 29th and revisit this, and we can talk more about voter suppression and which communities are targeted and what impacts it will really have. But last thoughts? Vote. Vote, yes. And we should have had a stimulus before the SCOTUS. That's what I think is a sacrilege. And that is the biggest problem I have with the confirmation hearing, is they didn't get the stimulus done before. Gentlemen, thanks so much for your time, for your thoughts, for this really dynamic interactive discussion. We will be back in two weeks on the eve of the election to talk about what are we all confronted with them. Thank you all. Stick around for a little debriefing.