Tuesday, March 17, 2020

Retired Hawaii judge James Dannenberg resigns from U.S. Supreme Court Bar, blasting John Roberts and Co. as a political extension of the Republican Party

John Roberts

 Chief Justice John Roberts and his colleagues on the U.S. Supreme Court amount to little more than the Trump administration's "errand boy," according to a scathing letter from a retired state judge in Hawaii. James Dannenberg wrote the letter to announce his resignation from the Supreme Court Bar, of which he had been a member for 50 years, but Dannenberg made it clear he is disgusted with actions of the Roberts court.

It's rare to hear a lawyer publicly criticize another lawyer, especially when one of them is head of the nation's highest court. But Dannenberg apparently considers Roberts and Co. to be little more than a political arm of the White House, according to a report from Staci Zaretsky at Above the Law:

Last week, while the world at large was growing rightfully concerned about the burgeoning threat of the coronavirus, one judge found himself even more concerned about the state of the nation’s highest court.

Meet James Dannenberg. He’s a retired Hawaii judge who served for 27 years on the state’s 1st Circuit District Court. Prior to sitting on the bench, Dannenberg worked as the state’s deputy attorney general, teaching federal jurisdiction as an adjunct professor at the University of Hawaii Richardson School of Law, for more than a decade. The retired judge had also been a member of the prestigious Supreme Court Bar for almost 50 years — until he quit.

On Wednesday, he submitted a resignation letter to Chief Justice John Roberts, going so far as to refer to the Roberts Court as the Trump administration’s “errand boy.”

Zaretsky then provides an excerpt from Dannenberg's letter, which can be read in full at this link:

The Court, under your leadership and with your votes, has wantonly flouted established precedent. Your “conservative” majority has cynically undermined basic freedoms by hypocritically weaponizing others. The ideas of free speech and religious liberty have been transmogrified to allow officially sanctioned bigotry and discrimination, as well as to elevate the grossest forms of political bribery beyond the ability of the federal government or states to rationally regulate it. More than a score of decisions during your tenure have overturned established precedents—some more than forty years old– and you voted with the majority in most. There is nothing “conservative” about this trend. This is radical “legal activism” at its worst.

Without trying to write a law review article, I believe that the Court majority, under your leadership, has become little more than a result-oriented extension of the right wing of the Republican Party, as vetted by the Federalist Society.

That last line, about the Federalist Society, is a dagger -- with a serious purpose. Trump has been packing federal courts with Federalist Society hacks, and that story has a strong Alabama flavor. Birmingham-based Judge Bill Pryor, of the U.S. Eleventh Circuit Court of Appeals, has been known as the "Johnny Appleseed of the Federalist Society" for his zealous efforts to help the organization grow, especially in the Deep South. That's the same Bill Pryor who is infamous for his 1990s foray into gay pornography at the Web site badpuppy.com. From a summary of a recent New York Times article about Trump's court-packing efforts, with assistance from Mitch McConnell:

President Trump has tilted the appellate courts rightward with conservative judges who are young, white, male and uncompromising, our analysis shows.

Working with his Republican allies in the Senate, he installed 51 judges in just three years — appointing more than a quarter of the appellate bench at a record pace. At least seven had previous jobs with Mr. Trump’s campaign or his administration, and all but eight had ties to the Federalist Society, a legal group with views once considered on “the fringe.”

Dannenberg does not ease up with the Federalist Society, taking shots at other sacred holdings of modern conservative "legal thought":

Yes, politics has always been a factor in the Court’s history, but not to today’s extent. Even routine rules of statutory construction get subverted or ignored to achieve transparently political goals. The rationales of “textualism” and “originalism” are mere fig leaves masking right wing political goals; sheer casuistry.

What about other "inconvenient truths" in Dannenberg's letter. Consider his introductory paragraphs:

Dear Chief Justice Roberts:

I hereby resign my membership in the Supreme Court Bar.

This was not an easy decision. I have been a member of the Supreme Court Bar since 1972, far longer than you have, and appeared before the Court, both in person and on briefs, on several occasions as Deputy and First Deputy Attorney General of Hawaii before being appointed as a Hawaii District Court judge in 1986. I have a high regard for the work of the Federal Judiciary and taught the Federal Courts course at the University of Hawaii Richardson School of Law for a decade in the 1980s and 1990s. This due regard spanned the tenures of Chief Justices Warren, Burger, and Rehnquist before your appointment and confirmation in 2005. I have not always agreed with the Court’s decisions, but until recently I have generally seen them as products of mainstream legal reasoning, whether liberal or conservative. The legal conservatism I have respected– that of, for example, Justice Lewis Powell, Alexander Bickel or Paul Bator– at a minimum enshrined the idea of stare decisis and eschewed the idea of radical change in legal doctrine for political ends.

I can no longer say that with any confidence. You are doing far more— and far worse– than “calling balls and strikes.” You are allowing the Court to become an “errand boy” for an administration that has little respect for the rule of law.

Finally, let's consider these parting shots from the Dannenberg letter, which seem directed at Roberts' vaunted backside:

Your public pronouncements suggest that you seem concerned about the legitimacy of the Court in today’s polarized environment. We all should be. Yet your actions, despite a few bromides about objectivity, say otherwise.

It is clear to me that your Court is willfully hurtling back to the cruel days of Lochner and even Plessy. The only constitutional freedoms ultimately recognized may soon be limited to those useful to wealthy, Republican, White, straight, Christian, and armed males— and the corporations they control. This is wrong. Period. This is not America.

I predict that your legacy will ultimately be as diminished as that of Chief Justice Melville Fuller, who presided over both Plessy and Lochner. It still could become that of his revered fellow Justice John Harlan the elder, an honest conservative, but I doubt that it will. Feel free to prove me wrong.

The Supreme Court of the United States is respected when it wields authority and not mere power. As has often been said, you are infallible because you are final, but not the other way around.

I no longer have respect for you or your majority, and I have little hope for change. I can’t vote you out of office because you have life tenure, but I can withdraw whatever insignificant support my Bar membership might seem to provide.

Please remove my name from the rolls.

With deepest regret,

James Dannenberg

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