There has been considerable coverage of a letter from retired Hawaiian judge James Dannenberg who resigned from the Supreme Court Bar in protest over what he views as a court become little more than an “’errand boy’ for an administration that has little respect for the rule of law.” While I appreciate Dannenberg’s deep-seated and good-faith concerns over the direction of the Court’s jurisprudence, this letter is wildly off base. Indeed, the letter appears to denounce the Court for being “results-oriented” because it does not reach the results that he prefers. While the conservative justices as chastised for voting in bloc, he has no such qualms about the liberal justices voting as a bloc in the same cases. One is viewed as ideological while the other is viewed as . . . well . . . right.
Dannenberg makes clear that the current conservatives are not in the model of his liking. Instead, he cited Justice Lewis Powell as an ideal. It is a curious choice. Many of us have been critical of Powell’s jurisprudence particularly his horrendous concurrence in Bowers v. Hardwick, 478 U.S. 186 (1986), allowing the criminalization of homosexual conduct. He later said that, while he probably got it wrong, he did not think it was such a significant opinion and he did spend much time afterward thinking about it.
Dannenberg states:
“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. 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.”
There is no objection to vetting organizations from the left or the even more consistent voting pattern of some liberal justices. Instead, Dannenberg just dismisses the conservative jurisprudential principles (long advocated by many thoughtful conservative academics) as “mere fig leaves masking right wing political goals; sheer casuistry.” Yet, the liberal principles cited by the dissents are expected as true and worthy statements of the views of those justices.
Dannenberg’s letter reflects a glaring hypocrisy from many politicians who have railed against the five conservative justices while praising the liberal justices routinely voting in dissent. As I have previously written, I have testified in hearings where this logical disconnect is raw and obvious but unaddressed by the media. It is a common narrative. Democratic Senator Sheldon Whitehouse of Rhode Island asked in one hearing, “When is a pattern evidence of bias?” Whitehouse described a voting pattern of a conservative cabal that he described as the “Roberts Five” of “Republican appointees” who “go raiding off together” and “no Democratic appointee joins them.” He noted his staff discovered that the five conservatives justices routinely voted together and thus displayed obvious bias. Why else, he suggested, would the conservatives vote so often as a five justice bloc?
As with Dannenberg, this ignores the countervailing “pattern” of those four justices always found in dissent in the same 5-4 decisions. Moreover, we should want our justices to have consistent voting records based on their views of jurisprudence.
You can reach your own conclusions. Here is Judge Dannenberg’s letter:
The Chief Justice of the United States
One First Street, N.E.
Washington, D.C. 20543
March 11, 2020
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.
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. 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.
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
The judge should not have set out to denigrate the integrity of the judiciary.
It is inappropriate and borders on misconduct for someone in his position.
The judiciary has already been denigrated by the GOP’s stealing a seat it should not have. Of the last 6 presidential elections, the Democrats have won all but 1 popular votes. The fact that we have a conservative majority is a travesty unreflective of the nation. 4 of those seats were by Presidents not elected by the people but by the dysfunctional mechanism of the EC – the constitution does not specify winner take all state outcomes – and 1 of them was an outright theft by the GOP Senate majority (elected by a minority of US voters) which purposefully abandoned it’s constitutional duty.
The bar is lowered and there will be payback.
The judiciary has already been denigrated by the GOP’s stealing a seat it should not have.
The people who send you talking points don’t care if uttering them makes you sound silly and childish.
translation:
.
Ha.With a background noise of an engine revving and ready to explode. Maybe the next Republican will give Absurd something to work with.
Absurd–I was thinking the same thing about BTB and a few others. Seems like there is a mill feeding them talking points that sometimes are interesting but often just nonsense that should, but won’t, embarass them. Expect much more of this in comments on different sites as the election draws closer.
The “there will be payback” comment reminds me of the Fascists in ANTIFA. Still wondering who is feeding money to that group.
Yeah, well let us know when you have something of substance to add to the discussion Young. Gossiping with the girls suits you better obviously.
Young:
“Gossiping with the girls suits you better obviously.”
******************************
There now you’ve gone and hurt btb’s feelings. Please include him in any of your more pedantic conversations so he can keep up.
Mespo– Yes. Strange comment from BYB. VERY sexist! He can’t be a true Progressive. More like a church-mouse poor student typing scripts to pay off his worthless degree in Women’s Studies. No wonder he is hostile to girls.
Mespo– I have pedantic conversations??? I’m wounded.
Young:
Don’t be. I was trying to give btb the impression that he could play with us a recess. We know he can’t.
Still wondering who is feeding money to that group.
Cut-out’s financed by the usual suspects.
ABSURD–Likely. I wish the DOJ would declare Antifa domestic terrorist organization and get to the bottom of their money pool. Somebody is responsible for a lot of violence, physical injury and damage of property. Perhaps time for some of that “payback” the Progressives love.
but hey Young RPC 8.2 fobidding us from scolding judges only applies to lawyers who need their license to keep putting bread on the table. or whatever the “judicial canon” counterpart of that rule is.
He’s retiring so what does he care? and was far above my plebian level of law practice anyhow
I don’t think the judge has surrendered his law license the way that Barack and Michelle Obama did for reasons unexplained.
Their licenses lapsed for non-payment of fees. Not surprising as she’d quit practicing two years before and he six years before. I suppose the rules vary from one place to another, but I think you can likely re-activate them. My lawyer friend allowed his federal district admission to lapse because he was never in federal court. A librarian of my acquaintance allowed her Massachusetts law license to lapse because she had decided she would never practice again and couldn’t be bothered with the expense.
Clinton kept his license even while he was president up until he lost if for perjury.
I know the official reason they are no longer licensed, and maybe it is true. And maybe not. We are dealing with someone who has been very discreet about his life. Oddly, the media has shown no curiosity about it.
Oh go on. If they’d been struck from the roll, it would be a matter of public record.
This judge appears to make his decisions based on the color of skin rather than the law or character.
The Judge seemed to ignore the gift of Obamacare that Roberts delivered to the left by his decision to label it a tax.
As if the GOP really wanted to kill off the Heritage Foundation health plan known as Obamacare. Then they’d actually have to come up with their long promised plan – which they still don’t have after 11 years – or the rubes like those who post here regularly would be onto them too.
As if the GOP really wanted to kill off the Heritage Foundation health plan known as Obamacare. T
What’s tiresome about you and Natacha is you keep repeating the same lies over and over. Doesn’t matter how many times people delineate their falseness in loving detail.
Obama:
“”A lot of the ideas in terms of the (health insurance) exchange, just being able to pool and improve the purchasing power of individuals in the insurance market, that originated from the Heritage Foundation.”
Politifact rates that statement “mostly true” and with much analysis including interviews with conservatives.
https://www.politifact.com/factchecks/2010/apr/01/barack-obama/obama-says-heritage-foundation-source-health-excha/
And Bob Dole was going to put this plan out if he won over Clinton in ’96. Some say the individual mandate/exchange idea actually had its roots in the U.S. with Nixon.
As a lawyer who represented mental patients in high security “hospital” i.e. prison, I have a conclusion about the guy after reading the letter. Paranoid. Maybe schizo. Shock treatment won’t help him. LSD might help.
Look up the Mkultra program of the CIA under Allen Dulles you traders. This guy would have volunteered to participate. How old is he? He might have done so.
Let’s hope that all judges that similar partisan perceptions, whether conservative or socialist, renounce their positions as well.
It’s a sad day when a judge can’t even realize the stupidity of his hypocrisy. But it’s what we’ve taught them at universities over the last 40 years. Hypocrite =Stupid and he doesn’t even realize it.
My guess is, that this attorney has either never tried a case in the SCOTUS, or he did a long time ago but not since that time. He is just trying to make himself relevant to his inner circle and more important than he really is to everyone else. In short, a publicity hound who wants to have this written on his obituary. It is more likely that fair people, like Prof. Turley, will judge him as a very biased person, who is just unhappy and unpleasant when he doesn’t get his way.
This comment is very good. Justice for all– not just for some.
It does appear that the plaster veneer of the leftist ideology is finally falling of and exposing the self-conceit underneath.
“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.”
IOW, he’s cheesed that items on the liberal agenda might be considered discretionary policy judgements rather than ‘rights’. Tough sh!t, shyster.
I don’t know if he is a “shyster,” but he is definitely a far left fool, who has likely never even personally taken a case to SCOTUS.
Another example of leftist virtue signaling and it cost him NOTHING. He is retired, probably well to do and doesn’t need to practice law before the USSC. And he might even get invited to some dinner parties and receive an award before the local bar.
Noodling around some, it appears he’s retired to a small town in Wyoming near Yellowstone Park. It also appears he’s 75 years old. He was born in Minneapolis but his family decamped to Milwaukee ca. 1947, and that is where he finished high school. He was admitted to the bar at age 36, after a stint as a sociology professor in the Bay Area. He evidently returned to Wisconsin for his law degree, then decamped to Honolulu. My wager would be he was denied tenure, but could wangle the financing to attend law school and change careers. I’d wager he’s been an SJW his whole life.
JT ignores the main concept in the letter, which is not pure partisanship, but the precedent breaking contortions the “majority” has repeatedly performed to pay back it’s benefactors. The argument that partisanship cuts both ways was somehow overlooked when Republicans complained about the impeachment of Trump while maintaining iron-fisted party discipline to cover up their leader’s crime.
The letter ignores the elephant in the room, which was the theft of a SC seat from a President elected twice by American voters and given to one rejected by American voters. The pay-offs are obvious. Unfortunately, given the age of some of the right wing justices, we’ll need to pack the court to get it from the hands of the minority interest group that owns it now.
“The letter ignores the elephant in the room, which was the theft of a SC seat from a President elected twice by American voters and given to one rejected by American voters.”
***********************
“Theft” Who gave it to him? Some guy who was 50% of the giving equation? And more of that “Electoral College is bad” nonsense.
Grow up.
Damn but I do enjoy seeing the liberals STILL whining about Trump. Just think, you only have to deal with him as your POTUS for another 4+ years. Good luck with that rampant TDS. Better seek treatment asap before Trump kills you.
Hawaiian Judge. Florida Man. Chuckles
It should be noted that the man in question went from the state attorney-general’s office to the Hawaii state bench. I.e a politically-connected Democrat in a one-party state.
particularly his horrendous concurrence in Bowers v. Hardwick,
What’s ‘horrendous’ about it? General police power belongs to the state legislatures. The notion that you have a natural right to sodomy given the history of Anglo-American law is, as Mr. Justice White said, facetious.
Consistency is not necessary when fighting evil. It is perfectly acceptable for leftist judges to shoehorn their personal preferences into the constitution because after all, they are only trying to fight injustice, right? Not to mention the constitution is a living document. After all you have to break some eggs to make an omelet. When conservatives do the same it is a sign of their white privilege which will be duly erased when the new multicultural America occurs. Then America will become a paradise on earth similar to Brazil or South Africa.
I wonder how Justice Scalia would have reacted to this letter and all the TDS shenanigans today. Would he and RBG still be enjoying as much opera today? Would he still be shooting with his buddies or would he have been shamed into giving it up? I really miss that man and his outstanding sense of ethics.
Dannenberg is correct. For those who think he’s just whining I have two words for you “ Merrick Garland“. Justice Garland should be on the Supreme Court right now but for Mitch McConnell’s unconstitutional Power grab. When the right wing crows about the little games they’ve played to interfere with President Obama’s power under the Constitution to appoint a Supreme Court Justice, I wonder what oath they took when they took office. Was it to the protect and defend the Republican Party or to protect and defend the Constitution? It’s obvious that the current crop took an oath of loyalty to Trump!
Have at it boys. What have you got to lose, as the great orange one would say, but the rule of law and a free country.
Talk about Never-Never Land!
Holmes, these fools don’t get that there will be payback and that a lowered bar lets all the animals out. The GOP has made the court illegitimate in it’s present configuration and it’s rulings are pure power plays with zero moral force and temporary legal authority.
btb:
The President’s illegitimate; the SCOTUS is illegitimate; the Senate is illegitimate! Ever think you sound like a crazed Pacino? They hauled him off, too.
Boy, RBG better not die while this guy is alive or he will commit suicide if Trump gets to fill the vacancy.
Yet another benefit of a Trump victory in 2020. 😀
I trust the man’s judgement.
The only part of the letter that seems questionable is this:
“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’d take issue with the word ‘soon’. Things have always been closer to this than would actually seem. No doubt things are just becoming more blatant with this court.
Gee, what could possibly go wrong with gig napping one seat and putting Barty OK up in another?? And that four count ‘liberal’ voting block? Just a response to the 5 count activism from the right block, they’re left without a choice in the minority.
” .. wealthy, Republican, White, straight, Christian, and armed males— and the corporations they control. ”
**********************
Omit the word “Republican” and you accurately describe the founders. Those are the same guys who founded a country that presented the opportunities to extend voting rights to women and minorities, fight world wide tyranny twice, end slavery and gave rise to the world’s highest standard of living considering its vast population and geography. No communist country did that. So maybe labeling people as “bad” isn’t quite as easy as you think it is.
Thank you for the excellent comment.
You’re welcome. Bahahahahaha.
You’re right, Mespo. They left opportunities for those women and minorities to vote and rid themselves of enslavement. That and another couple hundred years would prove to be the ticket in that respect. But the opportunity was, and is, a great one.
And the founders had a penchant for relating intimately with their slaves, so they were at least equal opportunity in that respect as well. They wrote a pretty awesome state paper though, pretty advanced for its time.
Just two fights against world tyranny? I’m guessing you’re referring to WW I and II. My family paid big costs in each so I know what you speak of.
Great monologue by Jeff Daniels in the pilot for THE. NEWSROOM. i highly recommend it. It’s on Amazon now so you don’t have to go in for HBO. Aaron Sorkin = great writer.
“They left opportunities for those women and minorities to vote and rid themselves of enslavement. That and another couple hundred years would prove to be the ticket in that respect.”
***************************
Your math perfectly matches the rest of your commentary:
American Revolution 1776
Emancipation Proclamation 1863
Nineteenth Amendment 1919
End of Jim crow 1965
Mespo: “No communist country did that”..??
Why would we compare ourselves to communist countries?? What year are you living in??
It’s bizarre that Trumpers keep making Cold War references while supporting Putin’s stooge.
It’s bizarre that Trumpers keep making Cold War references…
Mark also cited the 18th and 19th century generations, did you understand why? Ever hear of George Santayana? You may have read this quote before: Those who do not remember the past are condemned to repeat it.
It comes as no surprise that you find references to events in history bizarre. Critical-thinkers understand the importance of what history can inform us about decisions today. Progressives tend to blow right through that thought process, as they are convinced world history is what it is; it didn’t have the benefit of the progressive brilliance about to be unleashed on the world. So naturally this time it will turn out differently.
Yeah, Olly, your thoughts here are about as clear as algae in a rain barrel.
Olly, your thoughts here are about as clear as algae in a rain barrel.
Your personal problems are of no concern to me. Get your head out of the rain barrel and try again.
“ Those are the same guys who founded a country that presented the opportunities to extend voting rights to women and minorities” etc.. Again, you would have been a Tory way back then and certainly you are not a strong supporter of rights.
As Professor Turley points out, Whitehouse implicitly described a voting pattern of a liberal cabal that could be described as the “Ginsburg Four” of “Democrat appointees” who “go raiding off together” and “only occasionally a Republican appointee joins them.” He noted his staff discovered that the four liberal justices routinely voted together and thus displayed obvious bias. Why else, he suggested, would the liberals vote so often as a four justice bloc?
The utter lack of logic displayed by Mr. Whitehouse is incredible. This guy was a judge? That’s a scary thought.
*Senator – not judge
em, if you read the judges letter, he doesn’t say what JT is emphaszing, and he ignores the substance of his comments. He focuses on the precedent breaking rulings of the Robert’s court which is the opposite of the “conservatism” it purports to uphold. He does not talk about a partisan voting bloc, he talks about a results focused majority. JT is either not smart enough to understand what the judge clearly spells out, or he is purposefully obscuring it while setting up an easily shotdown straw dog, which is what you and others have attacked.
From above.
“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.
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. 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…”
JT should respond to the main point of the letter, not whatever spin he puts on it.
bythebook, I was referring specifically to the statement by Senator Whitehouse.
But the two examples listed here: “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…” have a decidedly Leftist spin – not to mention something like Freedom of Expression has ALWAYS been a contested position on the ideological battleground.
The man is by no means impartial, yet he’s calling out other people for not being partial to his ideology. Which was what I took from the Professor’s opinion.
Here’s the thing. Do I think judges should be impartial? Yes – the vast majority of the time. Can they be? I’m biased. You’re biased. We’re all biased.
Personally, I mistrust every judge I’ve read about.
That said, I’d much rather have a judge biased toward the center, center left, or center right than either of the extremes and most especially-definitely not someone possessed by the ideology of the Left. History’s already seen the body count that results from that form of “justice.”
The law should preserve the most freedom for the most individuals possible, and infringe as little on the fewest freedoms of the fewest individuals possible.
“While I appreciate Dannenberg’s deep-seated and good-faith concerns over the direction of the Court’s jurisprudence, this letter is wildly off base.”
************************
Wow this TDS virus is one nasty bug. Let’s shut down those infected.
Just another crybaby who doesn’t always get his way. Disgusting behavior for an adult.
Wa wa wa
ANOTHER NEVER TRUMPER AND TRUMP HATER. BYE BYE Judge Danneburg – spend your time surfing and picking coconuts and pineapples.
Mr Dannenberg is absolutely correct and Jonathan once again demonstrates that he is a constitutional lightweight He is not in the same league with Pam Karlen and Noah Feldmanand his efforts to yak it up with them at the impeachment hearing was not well received They were having none of it Thomas and Kavanaugh are serial sex offenders and they are morally unfit to be on traffic courtDont take my opinion Jonathan Maybe you should read the serious wok of Harvard professor Richard Fallon who has proven that the Roberts Court lacks sociological legitimacy The rule of law means nothing to them We must engage in mass civil disobedience and resist as the Court is on track to disenfranchise minority voters and deny women their rights The new Congress could the reduce the Court by two justices and reassign Kavanaugh and Gorsuch to districts courts in Alaska and Idaho
an anonymous cipher named zinoiviv says Turley is a constitutional lightweight?
pathetic loser. Tuley is a tenured law professor and eminent expert in it; Turley has testified many times in congress; and Zin is anonymous with the worst nom de plume ever.
dont like turley>? buzz off
Sociological legitimacy? That’s a nothing burger.
Zinny:
“Maybe you should read the serious wok of Harvard professor Richard Fallon who has proven that the Roberts Court lacks sociological legitimacy.”
*********************
Oh, his book is #164 in “Jurisprudence” on Amazon. For comparison, the paperback .99 cents version of Dostoyevsky’s complete novels is #2. Says something about your hero versus mine. You wanna read a real book on justice, try Rawls’ “A Theory of Justice.” It’s #5: “The natural distribution is neither just nor unjust; nor is it unjust that persons are born into society at some particular position. These are simply natural facts. What is just and unjust is the way that institutions deal with these facts.” It’s an equality of opportunity book.
Oh and periods are good things.
Food for thought.
Most of us are glad that our parents gave us Life but at the same time they gave us Death!
For without Life we would be denied the opportunity of Death.
LOL;)
Correct-the-Record is not sending us their best.
TIA:
Damn, we got the interns again.
Correct-the-Record is not sending us their best.
Or they are and this is as good as it will get.
Don’t need the best to repel your BS, this is a turd. Up your game if you want the big time.