 Okay, we're back for a live. I'm Jay Fidel. This is ThinkTech. More specifically, this is our Life in the Law series, and we have a really special panel today. We have Abhi Soyfer. He's the Dean of the William S. Richardson School of Law. We have Walter Kiromitsu. He's a retired judge of the Hawaii Intermediate Court of Appeals. And we have Chuck Crumpton, who is a community-minded practicing Hawaii attorney. No, those are not inconsistent things, okay? And they are going to help us understand the notion of judicial independence under the U.S. Constitution, and whether the American judiciary is still as independent as the founders had hoped it would be. Wow. We'll never finish this in half an hour, gentlemen. Abhi, let's start with you, okay? You're a constitutional lawyer. What did the founders intend, and how far have we shoved off from that notion? Well, that'll take a few hours to answer what the founders intended. And it's really problematic even to know who the founders were, because you have to talk about who was in Philadelphia that hot summer with the windows shut, and then it went out to the states. The Bill of Rights was added later. But the founders clearly had in mind not a totalitarian authority who had total control. They were worried about kings. They knew about George III, and they decided separation of powers was very important. It was an experiment. And they thought that there would be more liberty if there were separate branches of the federal government, some overlap, of course, but also separate responsibility and separate power. They also set up federalism. So the power was also split in some way or other with the states. And so it was really a kind of anti concentration of power that they had in mind. As to judicial review, it's not clear what they thought. Some of the colonies had judicial review of the sort that we know. Others did not. And it was really up to Chief Justice John Marshall to set in motion the judicial review that we've come to value very highly in Marbury versus Madison. And what he did was to write an essay about how important that was, but then he kind of ducked and didn't actually do anything that helped the person who was complaining to the court. And so his cousin, whom he quarreled with very openly, very often, President Jefferson could not doubt it. So Marbury versus Madison is really the source of judicial review authority. Yeah. Okay. And how far have we shoved off? Well, our current court... That's the one that'll take weeks and months to answer, right? Our current court is a disappointment, I would say. I think it's a mistake to think that the court has not been a disappointment in the past. And many of us of more or less the same age were inspired by the Warren court, the court that decided Brown versus Board of Education and extended the procedural protections of people accused of crime, the First Amendment and so on. That was a rarity in the court. There have been great justices mostly known for their dissents. So the court over time has not been as great as I believe the Warren court was. The current court, however, looks more political thus far, even in some of those bad courts. And there was a wonderful column by Linda Greenhouse in the New York Times last week. She covered the Supreme Court for many years, and now she writes columns about it. And the title of her column was, The Supreme Court Fails Us. And she was talking about what happened in Wisconsin, where there was no reason for the election to take place, as it had originally been scheduled because of the pandemic. And yet the Supreme Court of the United States said, well, ordinarily, we don't intervene. And she made the point, this is not an ordinary time. And that's why the governor tried to delay it, and they tried to allow absentee ballots and so on. And instead, the Wisconsin Supreme Court, which has been very politicized itself, including an alleged attack of one of the justices against another in terms of a stranglehold. Anyway, they decided, oh no, you've got to do it this day. And a remarkable thing happened next, which was the voters lined up in the cold and waited for hours. They had eliminated most of the polling places in Milwaukee and other places. And they elected the more progressive of the justices. And so, even though the U.S. Supreme Court, I think, did fail us in what they said in upholding the Wisconsin directive, the voters spoke up, maybe they were angry. And I think it shows that we have lots of different seats of power within our fragile democracy. And I think that's very important. It gets back to separation of powers and federalism. The voters also count. Oh, amen to that. So, Judge Kieramitsu, you've been a sitting judge for quite a while. And of course, you've seen, you know, the courts evolve in Hawaii. And you've seen this from, when you want to say it, the judicial side of the bench. How do you feel about what's going on in the Supreme Court, in the politicization that Avi described? How do you feel things are doing in the federal judiciary? Yes, first of all, let me just say that I'm very honored to be on the same panel with Avi and Chuck and UJ. It's an honor and I really appreciate the opportunity to speak. But, you know, Avi is the constitutional law expert. And he recently was a keynote panel member at a forum in September of 2019, which was sponsored by the American Judicature Society here in Hawaii, the Hawaii chapter. And basically the subject was, you know, the separation of powers, you know, between the legislative executive and the judiciary, and also the side issue of judicial independence. So I, my comment is, I think Avi has zeroed in on the right emphasis or right focus. I'd like to also emphasize that judge, retired judge Jim Dannenberg, who was a judge at the time that I was serving on the Intermediate Court of Appeals, was very, is very, very, very well respected judge of Hawaii. But he was a member of the United States Supreme Court bar for close to 50 years. And he felt so strongly that this United States Supreme Court is way out of bounds in terms of stare decisiveness or following judicial precedent, following legal case law and et cetera, et cetera. But basically Judge Dannenberg in a nutshell wrote a resignation letter from the United States Supreme Court bar in March, early March of this year. And basically the point he made was he said to Chief Justice Roberts that you, the Supreme Court are allowing the court to become an errand boy for an administration that has little respect for the rule of law. I think that statement in itself is a strong statement that I agree with that the United States Supreme Court at this point has demonstrated that they're basically politically activated or politically active, more so than following judicial precedent. And then the key word on this is respect for the rule of law. I think the administration more precisely, more specifically President Trump has shown total disrespect for the rule of law. And as a result, his pushed issues like total authoritarianism also the most recent one was yesterday. He said he would exercise his constitutional authority to adjourn Congress and the namely adjourn the U.S. Senate because they have not approved all of his nominees. That kind of constitutional authority I think usurping the doctrine of separation of power and checks and balances between the legislature, legislative, executive and judiciary and also intervening on judicial independence. So those are my thoughts. The issues of separation of powers are applicable for the federal jurisdiction as well as the state jurisdiction. Both respect the separation of powers, the checks and balances, and judicial independence. Thank you, Judge Kerman. Those are my thoughts. Okay, Chuck Crumpton, a practicing lawyer, but a guy with a social conscience, a guy who speaks around the community, you know, you're a community person, an altruist. And I wonder if you have, I know you have thoughts about this because you and I had a show about Jim Danberg's letter and I like your thoughts on that. I like your thoughts on how it affects our country, what's happening in the Supreme Court. You know, it strikes me that when we talk about judicial independence and we talk about politicization, politicization pulls the rug out from judicial independence. It is a statement that the court, if politicized, cannot be independent. Its independence has been compromised. Anyway, so, Chuck, what are your thoughts about this and how does it affect, you know, the country and the rule of law? I think Avi and Walter have articulated it extremely well. For all those who see this, I can't tell you how eminently honorable and high integrity these two gentlemen are. If they say it, it's worthy of serious thought and consideration because that's where they have always come from. That's how they've always lived. Avi is the Dean of the Law School and a scholar, has been independent, has manifested, has exhibited and modeled independence in ways that have elevated this law school and community beyond what any of us could ever have anticipated in his 16 years. Walter, similarly, not only with the courts and with the university as counsel, but also the head of St. Louis schools, has done the same in both the judiciary and in education. I think what we need to learn from this leads me really to my question to Avi. What can we do? What avenues may there be to try and reign in and counter this loss of independence and impartiality in the third branch of our judiciary and as a result, loss of checks and balances that we need for a democratic republic? Avi? Well, one of the things that I think is very important and often forgotten is that the state and federal ongoing minuet, if you will, it's a constant debate, it's a constant battle sometimes, allows the states to do things when the federal government is going off the tracks. And so one thing to be done is to go to state court and to try to do things there that you could not do, you know, you would not have a chance to do in federal court, at least as long as the US Supreme Court is sitting there ready to reverse very readily. So the use of the states as laboratories, which is what Louis Brandeis talked about is important, not always for the good, but it sort of underscores something that I believe Faulkner said, although I haven't found it, and that is whoever wins, it won't be for good and it won't be for long. So we have many different places in which there is the chance for resilience for opposition. And right now we're in a very interesting and important clash between the federal government and the states over such things as California's air quality or prosecution of a district court judge in Massachusetts who seems to have allowed a prisoner to escape because she knew ICE was in the building. But that was a good or bad thing to do for the US Attorney to prosecute her, it's really pretty stunning in terms of the relationship with the federal and the state judiciary. So that's one thing. I think voting is incredibly important. We have to remind people over and over again, and we have to get out and vote. So that's another thing that clearly is available. And finally, one of the things that I think sets the judiciary apart is, for the most part, unlike other people in Washington, for example, they have to explain themselves. So they write opinions and it falls to some of us to applaud or to critique what they say. There has been a threat to judicial independence in Hawaii, which I thought was surprising, I think is surprising. And fortunately, it's been beaten back because the independence of the judiciary is very important. Our Supreme Court, I think, has been very good about reaching out and going into the community. But it was really striking that we went back to what Chief Justice Richardson had written and it appears in the second volume of our law review of the University of Hawaii law review. And he talked about how we need good judges and that the quality of justice in our society relates closely to the competency, fairness, and effectiveness of our judges. And in Hawaii, we have a judicial selection commission, which is unusual, majority of citizens not lawyers. And I think they've done a pretty good job. We have a good judiciary. So the notion that the legislature gets disturbed or angry about a particular decision and wants to change the system, I think has to be watched carefully. Because once you start tinkering, then the floodgates can open. Well, indeed, we have a lot of tinkering going on now. I mean, even Donald Trump couldn't remember the exact number of judges that he has appointed in the federal system that have been run through by Mitch McConnell on an expedited basis. Trump thought there was something over 400, but in fact, it was more like 130 or so, which is really interesting because the Republicans blocked all kinds of nominations by the Democrats. So what we have now is life tenure of judges who are way right wing, and some of whom are clearly not competent to serve, even as evaluated by the American Bar Association. And they are being stacked into the courts, not only the Supreme Court, but a lot of courts. And the Supreme Court gets the publicity, but there's a lot of federal courts that have been stacked also. And then you have a president who calls judges names. You have a lot of command influence, if you will, at every level, including the military. It's really hard to find a path where justice can be independent. So I would make this statement and see what you think, Avi. We're in a mess. And we've never been in such a mess as we are now in terms of judicial independence. And I, for one, worry about the future of our democracy. How about you? I always agree with Jay. So sure. No, we are. We're in a mess. But I wonder what Walter has to say about that. He hasn't said much beyond his very gentlemanly approach. So Walter has seen a great deal, even more than I have seen. What do you think? Is this the worst mess? We are in a mess. I think we just need some drastic action to correct it. I think the source of the mess is the president. And we need to elect a new president to replace President Trump. If you recall, when he was running for election, there was an incident where there was a federal judge, a district court judge in California, Southern California. I think his name was Curiel, and he made some rulings against Trump and Trump University, et cetera. And Trump, at that time, he came out publicly and said, this judge is incompetent because he's Mexican. And that judge was born and raised in Indiana. He's of Mexican ancestry ethnicity. But Trump basically called the judge incompetent because he's Mexican, and Trump is going to build a wall to prevent Mexicans from entering the United States, et cetera. That's the kind of individual we're dealing with. And he has no hesitation to exert total authoritarianism. And he's ignoring the rule of law. He's ignoring the judicial president. So what Jay mentioned, whether we are in a mess, I think we are in a deep mess, and we need to do something drastically proactive to get out of this. Well, that goes back to Chuck Crumpton's question. What do we do? What do we do? I mean, we're talking before the show about the American Bar Association. You can look at them and say, gee, they're not really pushing this notion of independence. And maybe they've been compromised. I don't know the answer, but it just looks like they might be compromised. So what do we do? I don't think we can go to them. Obviously suggested we go to the states and see if we can get better rulings in the states. But at the end of the day, in our federal system, it's the Supreme Court going to govern. And the states can try to make abortion more sustainable. But the Supreme Court is probably going to turn it over. Roe v. Wade is going to get turned over. And so at the end of the day, the Supreme Court is going to be in charge of this. So I guess the question is, what can a practicing lawyer like Chuck, what can a judge or a retired judge like Walter, what can a dean of a law school do to stop a trend that is very threatening to our democracy? Is there anything we can do? We can have faith and hope in the next generation, which is why teaching law is such a wonderful, wonderful occupation. And there's reason for it. There really is reason for that hope. But I think also we have to pay attention to the inside baseball as it were. And that's what was so important in Linda Greenhouse's column. That was not a sexy case. And what the Supreme Court did was so outrageous that it's important to write about it, to call attention to it. And you never know how you have an effect on minds, really. But trying to call attention to what's going on, I think is a key thing, including this show. So continuing on that theme, I think we have to applaud Jim Dandenberg. I mean, that's one person and it got a lot of publicity. And it called it as it was. Famously our Chief Justice, Robert, is going to be a judge who just called balls and strikes. You know, that's very clear. You're just an umpire. Well, that's a tricky statement. So I'm not saying we should throw beer bottles at the umpire, but one has to protest when the umpire gets it very wrong. I think also that as we talk about the Supreme Court having the final say, we have to remember that they pronounce what they think the law ought to be, or the law is, but they don't enforce it. Enforcement falls to others. And actually Brown versus Board of Education is a very good example of that. So the Supreme Court said what they said, a little unclear what the right was exactly. And then there was resistance. I'm not applauding Southern resistance, but I think you can look at what happened after Brown and say, hey, Supreme Court says one thing. It doesn't mean that the law or the world changes nearly as quickly as people assume. And there's great respect for the court. So I think with a change in president, as Walter suggested, and some other judges, lower court as well as Supreme Court, it's not going to be quite as bad a mess as it now looks. Yeah, but don't be sure that we will have another president. We may have the same president, because after all we've been working hard to suppress voting as in Wisconsin. But one thing that strikes me is that the judges involved, Walter, they need to be criticized. We should do more criticism. We should evaluate their decisions in all the courts, all the systems. And in fact, and then the greenhouse has led full disclosure, she my sister-in-law, and she teaches at Yale. She teaches these subjects at Yale in the law school. Anyway, it seems to me that when I, if I'm a judge, and I see people writing about me, then I'm affected by it, or it should be affected. You think John Roberts was affected by Jim Danenberg's letter? It was a powerful letter. Do you think that other letters and articles that had played out affect judges? Or can they just brush them aside? Are they just brushing them aside? Is there a point in writing and calling them out? My thought on that, Jay, is I think Linda Greenhouse's article is very timely. It's basically calling out the majority or the conservative majority in making this erroneous ruling in Wisconsin, et cetera. But I think we, the public, whether we're lawyers or not, should express our displeasure or disagreement with the judiciary. And like Danenberg said, he has no objection for legal conservatism, as long as they follow judicial precedent. But when you go overboard and it's no longer calling balls and strikes, but being politically proactive, they need to be criticized. So I think for me, just being on this forum today has inspired me to get together with Avi and Chuck and you. And perhaps we need to create some movement here, probably through an effective organization like the American Judicature Society or the American Board of Trial Advocates or the American College of Trial Lawyers or even the American Bar Association to get them more proactive to criticize the judiciary when they need to be criticized and at least be expressive that the judiciary, we're not pleased with their decision, not because they didn't follow judicial precedent, but because they're politically proactive and they're crossing over the borders that's protected by checks and balances and the constitutional separation of power. You know, one of the things brings out of this, Chuck, and that is that judges have been attacked individually. As Avi mentioned, or rather Walter mentioned, Curiel, the Mexican judge, I guess it was in the southern part of Indiana is where he was born. In any event, you know, the president has criticized judges everywhere who don't agree with it, who don't give them the ruling he wants. I think my favorite one was Amy Berman Jackson, not too long ago. And when you add the fact that we have a Department of Justice, which plays the other end of that whole scenario, which is completely compromised, incredibly compromised, then you get a lot of pressure on judges, don't you, in the federal system. They don't like being criticized. This has never happened before that I know of. Maybe Avi can speak more to that. But, you know, I think it really undermines the independence of the judge and the clear thinking of the judge. If he's, you know, being or she is being criticized in the paper by our president, his command influence is what it is, and it's unacceptable. Chuck, how do you stop that? I know you're going to say, let's have another president, but is there any other way short of having another president to stop that? Hey, I think Walter and Avi are spot on that we really need to start building movements of people, of conscience, character and courage to speak out, to take a stand and to urge and inspire and motivate our political representatives, our government representatives to do that. That worked in the 60s. It was the only thing that worked. It worked for civil rights. It worked for peace in Vietnam and beyond Cambodia and others. If we take that positive step, if we put conscience, character and courage first, and we coalesce and we provide forums and opportunities for people to gather and to assert that and to bring that home to their elected representatives, that may be our best hope, not only for a sane or more humane responsible choice in the elections, but for sane or more humane responsible governance in all three branches. We need to bring that pressure to bear. It's on us. It's an opportunity and a responsibility. Avi, one interesting command-influence situation was the case of Bo Bergdahl, the deserter. I think it was Iraq in the five years in the hands of the terrorists and all that and came back to a prosecution for desertion. And I shouldn't quote him as a deserter because that's an allegation. But anyway, in that case, Donald Trump said that he should be executed. He said he should be dropped out of a plane. He said it many, many times. He was trying to affect the judgment of the court. It was a court martial. He was trying to affect the judgment of the military, the system in general. Just as he tried to affect the system in the Gallagher seal case. And on and on, there are other examples of the same thing. And I think the public is not really fully informed about what this means when the president does this. And the command-influence goes further. It goes to Amy Berman Jackson. It goes to every judicial person sitting can be improperly affected. And so one of the things which you alluded to is we can teach our law students. We can make this core to their education that they must speak up. But the other part is that they must speak up in court. They must take that to court. They must say, if the president used inappropriate command influence, this case has to be reversed. And try to get on the president there to undo the command influence that's coming from the White House. I mean, what can be done, not only in teaching law schools, teaching law students, but in teaching them to raise these issues in court and not let it go by. Well, I think, as Chuck mentioned, we do have historic precedents for that. And I think we should recognize that there's often a very nice relationship, maybe not even intended, but a relationship between the courtroom as a bully pulpit itself and people who are protesting. Now, some of it, of course, is defending the people who are protesting and got arrested. But that gives you a chance often to make a point and to get the public's attention to this. And I think, Jay, you make a very important point, particularly about the Attorney General and the Department of Justice. We have had a lot of faith in the Department of Justice for good reason for a long time. And Attorney General Barr is just decimating the reasons because there were internal norms and it did actually lead to people being quite responsible. Some people resigning in protest and look what's happened. So resigning in protest is an important thing as we go back to Jim Dandenberg's point in his letter. I think also it's important to recognize that protest itself, as Chuck was just saying, but I'm not saying everyone should coordinate these things, but that's a pretty good trio of conscience, courage, and character. And one of the things that I think is a basis for optimism is that there are a lot of women in this country who have been quietly organizing ever since Trump was elected. And they've been letter campaigns and phone campaigns and so on. And I think they're going to be very active in the next presidential election. And they're often overlooked because it isn't a formal organization. And the anti-slavery movement didn't have a, it had a number of organizations, but there was no coordinated effort. And yet working with court cases, they were in the streets, they were rescuing slaves at times. And so it's many different values that all might coalesce. And a little known fact is that in the, I have a dream speech that Martin Luther King Jr. made, the microphones weren't working. And they went to Bobby Kennedy and the Kennedys and the Civil Rights Movement had had a sort of tense relationship. But Bobby Kennedy got the Air Force technicians to fix the microphones, or people might not have heard that speech. So there's sometimes symbiotic relationship that I think is important to notice and to build on. Yeah. And to rediscover, perhaps we've lost some of that since then. Yeah. You know, one thing that Avi mentioned, Walter, was Earl Warren. Because Earl Warren's court, which was a great court for the United States, reflecting, you know, change and comporting with change in the country socially, demographically. And in fact, he made great contributions. But at the time, in fact, I think you could say without any question, that was an activist court. They were developing new ideas. They were, I don't want to use the term legislating. It was more than that. It was changing the norms, changing the law, changing the country. But clearly, you know, the term activist applied. Now we have Jim Dannenberg and he calls the current Supreme Court activist. What's the difference? I think the big difference and the key difference is that in Earl Warren's court, they followed judicial precedent. They followed what is called starry decisis. Whereas, so they were socially active, progressive, but they followed the rule of law and they followed precedent. Whereas Justice Roberts, his court right now, they seem to just disregard precedent, judicial precedent and just go politically active, proactive. And so, there's a huge difference in terms of the respect for the law between, say, the Warren court versus the Roberts court. I think that's the key difference. And President Trump seems to be the instigator. He seems to encourage, if not, compel these judges that he nominates, to just not follow the law. And just follow the law. And I want to ask one, I want to ask sort of around Robin to close, but my question to Avi is this. You know, what is the, you remember Charles Dickens and a Christmas Carol? He talked about, you know, the ghost of Christmas future. Okay. And I'd like to ask you about the ghost of Christmas future. If we do nothing about this, if the Bar Association, the law schools, the existing judges don't do anything about it, and they let a dictatorial president, a president who doesn't follow the rule of law, a president who hollows out government in his own favor, who becomes a sole proprietorship running the country, which we've seen in so many, so many instances. And we do nothing. What happens? What happens to the country? What happens to the democracy? What happens to the Constitution and the founders such as they were? So let me get this straight, Jay. You don't like the president? After the show, I'm going to tell you how I really feel. It's not personal though. I think it's the nicest possible way. I think you're right to sound the alarm. I said at the beginning, it's fragile, and it is easily undermined and a lot of undermining is going on. That doesn't mean that it's all gone. I don't think we have to despair. But I think we have to pay attention, speak out, and hold on to the institutions and the values behind the institutions that are very important. So this is a good discussion of those matters. And Walter, I think, put it very well. We can't just say, oh, those are norms and they're too confining. We have to pay attention to the cost and as well as the benefits of those norms. So Walter, what would you leave with our listeners? What message would you leave for them to think about and to do to deal with this issue? Brown Robin, not me. Chuck? I go back to Avi and Walter, come together, stand up for conscience, character, and courage. Stand up for not only our democracy, the values that we cherish. I asked my pro-Trump family member next generation, what would you do if someone who behaved and spoke like this president, asked your young daughter, whom you treasure more than anything in the world, stopped him in his tracks. So I think we need to think about bringing back honor to the profession. Not only stand up for yourself, come together. We need to coalesce. We need to use what worked in the 60s. It can work again. Wisconsin showed that. I grew up in Madison. I cannot tell you how deeply moved I was by the courage of Wisconsin voters. They risked their lives, not just bad weather, but a pandemic, to make saner, more humane, responsible choices. We need to do that together. Walter, you're the last. I just want to remind us all that George Washington said in a letter to one of his political friends, I guess, he said, the true administration of justice is the firmest pillar of good government. I wanted to ask you what you would say about that in these times, and again, how worried should we be and what should we do? What are your thoughts? I think that capitalizes, you know, that the judicial judiciary is form and justice do form the pillars for our society. And it must follow the rule of law. And like Chuck mentioned, we need to be concerned. We need to coalesce. And we need to get together, come together and do what Jim Dannenberg did after 48 years in the Supreme Court bar. He resigned. He resigned. He sent a message and he says, Chief Justice Roberts, you guys are wrong. You guys are doing wrong. You're doing injustice to our society. We need to do the same thing. And this forum this morning has inspired me to do something about this and trying to get into some form of movement, meaningful movement to coalesce, to come together and do something that will show our objection and what we feel is the right path. Thank you, Walter. Walter Kiromitsu, Avi Soyfer, Chuck Crumpton, been a great discussion. I'm sorry we don't have more time, but maybe we can do it again, either as a group or, you know, individually, because as Walter says, we have to continue the discussion. Thank you very much, Paul. Thank you, Jay. Thank you. Thank you. Aloha. Now, Aloha.