 Okay, we're back. We're live. We're here on Think Tech. We're doing a show on life in the law with Chuck Crumpton, who's been practicing law for a long time. And he and I have both followed a specific letter. This is a remarkable letter by a retired district court judge, James Thannenberg, to John Roberts, the Chief Justice of the Supreme Court. Welcome to the show, Chuck. Nice to have you here. Jay, a pleasure as always. The letter, as Thannenberg said, speaks for itself. But I think we ought to talk about it. And to talk about it, first, we need to read it. It is a remarkable letter. It's a once in a lifetime letter. And you got to give tremendous credit and admiration. So it's to dear Chief Justice Roberts. I hereby resign my membership in the Supreme Court Bar. By the way, that's the United States Supreme Court. This was not an easy decision. I've been a member of the Supreme Court Bar since 1972, far longer than you have. Then you have Chief Justice. And I've 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 I've 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 span the 10 years of Chief Justice's Warren, Berger, and Rehnquist before your appointment, Judge Roberts, and your 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 Bader, at a minimum enshrined the idea of stare decisis. And it's true 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, Supreme Court of the United States under your leadership and with your votes has wantonly flouted established president. Your conservative in quotes majority has cynically undermined basic freedoms by hypocritically weaponizing others. The idea of free speech and religious liberty have been transmogrified to allow officially sanctioned bigotry and discrimination, as well as to elevate the 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, how overturned established precedents, some more than 40 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 gets subverted or ignored to achieve transparently political goals. The rationales of textualism and originalism are mere fig leaves masking right wing political goals. Cheer, Kazooistry. Your favorite 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 Plessie. 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 Plessie and Lochner. It still could become that of his revered fellow Justice John Harlan, the elder and 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're a final, but not the other way around. I no longer have respect for you or your majority. 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 Stannenberg. Whoa. Remarkable letter. So, Chuck, what are your thoughts hearing that letter? Deeply moved and saddened for those of us who have put most of our lives into trying to make this a system of justice, attentive and responsive, to the disempowered, and to equal justice for all people. The other thing that it brings to mind, I've known Jim Dannenberg for many, many years, most of my 42 years of practice. Jim has always been a person of impeccable integrity, conscience, character, and courage, and this letter exemplifies it. I think the fact that no one prior to Jim Dannenberg had exhibited that combination of qualities in an active way by doing something like this publicly, and the response that I've seen, for example, Facebook has a page called Lawyers for a Good Government. This letter was posted on that page. Within hours, there were over 350 likes and over 35 deeply supportive comments. It's been widely circulated, and I think the other thing that is worthy of attention is that every single person who has commented on this has done so with deep support and respect for his courage, for his incisiveness, for his wisdom and his judgment in bringing this out at this time. The importance of it systemically is that our governance, our people, our rule of law depend more than anything on the checks and balances that require a truly independent judiciary. We no longer have that. This letter makes that deficiency, that departure crystal clear and sadly clear. And the fact that among hundreds and hundreds of lawyers dedicated to the rule of law and good government, every single one of them recognize the rectitude and the accuracy and the importance of this letter speaks to its truth. I have not heard one negative comment or one rebuttal. The legal authorities that Jim Danny Byrd cites to, the Lochner case in which the ability of governments to control unfair labor practices, excessive hours, was stricken down. Fortunately, the Lochner decision has since been overturned. The Plessy v. Ferguson case, which was the case that established the separate but equal doctrine, that discriminatory facilities were okay as long as they were claimed to be equal. We've learned in the decades that have since passed that those also indefensible and ethically suspect positions cannot be sustained with the values that this country depends on. If there's anything that's critically important now while we're experiencing challenges to our very connections with each other, it's to understand that what this reflects about our leadership, judicial, executive, and legislative, is a need for all of us to stand up for those core values that Jim Danny Byrd has really eloquently set forth and defended in this letter to the Chief Justice of the United States Supreme Court. Adorable, well written, thoughtful, professional, profound even, and it opens up a whole conversation. I would like to see thousands of lawyers write concurrences to this letter, jointers to this letter, repetitions of this letter, because there are thousands of lawyers in this country who would agree with this letter. The question is, what is wrong with the Bar Association and the profession that there's been only one letter like this so far? I would like to see every lawyer who has studied constitutional law come forward on this and critique what is happening in our government. The worst time has been under the Trump administration, but it's been going on. The politicization of the Supreme Court is something that started a long time ago, and now it's come to white hot, and hence the need for a letter and commentary like this. But what did George Washington say? The true administration of justice is the firmest pillar of good government, and the implication is without the true administration of government, of administration of justice, you have bad government. And I think we do have, we have bad government. We've lost it. We've lost the essence of the Constitution. We've lost Congress. It's dysfunctional, nonfunctional. It doesn't follow the letter or spirit of the Constitution. And we've now, clearly, we've lost the Supreme Court. It's been compromised. It doesn't follow the rule of law. It doesn't follow the ethics of good government. And this leaves us kind of a drift. I wonder how the man on the street feels about this, if he knows about it. I wonder how people in general respond to this letter. It's gone, it's gone through a number of publications. People have commented on it. I guess, Chuck, that there'll be more commentary on it. But we need a ton of commentary on it. And we need to, you know, take a close look at the way Congress and especially the Senate and Mitch McConnell is confirming judges on an industrial basis. They confirm them the same day. They only need a majority to do that because they changed the rules already. And they confirm anybody who's proposed by the Federalist Society. And Trump takes the advice of the Federalist Society, which is a right-wing organization. And they have appointed and confirmed a ton of incompetent judges, unqualified judges. Where is the American Bar Association? Where is its influence? Where is its public statement on the subject? So not only do we have judges, you know, throughout the federal system, Trump has appointed hundreds of them. And we haven't seen an awful lot of commentary about the individual judges, unqualified judges that have been appointed into the federal bench at all levels. But now it's clear that the Supreme Court itself has been compromised. Wait till you see Roe v. Wade come up there. You already know what the decision is going to be on the basis of the politics. Not the law, not the benefit of the country, not, you know, to preserve the values of the country, but simply on politics. So this is, it's a call to action. It's a statement that we are in deep trouble unless we do something about it. And the problem is that it's all happening around us, but we don't have a whole lot of ways to respond. Aside from writing letters like this, Chuck, what else do we do? I think that's a great question. I think giving attention to those two extremely important phenomena, one, the mass appointment of judges, even including a larger number of judicial appointments that were rated unqualified by the American Bar Association than any other president. They are being ramrodded through. Secondly, we need to pay attention to the change in the appointment process that Mitch McConnell was able to engineer. The previous requirement for many decades, hundreds of years, was a two-thirds majority in the Senate. McConnell changed that to simple majority so that once the Republicans got the majority of the senators, they could put in anybody they wanted, no matter how unqualified, no matter how biased, and no matter how tarnished their conduct or their reputation might be. We now have people on the federal courts who exhibit all of those elements in their history. This is not something designed to promote respect for the rule of law. So I think the only honest response to your question, what can we do, is for not just lawyers, but for those sincerely interested in a legitimate system of justice that respects the rule of law and that protects the disempowered against the abuses and manipulation of the excessively empowered, have to step up. They've got to run for office. They've got to get votes out there. We have to convert it to actions and decisions. And I think Jim's letter indicates, and I'm deeply afraid, that if we don't make more humane, saner, more responsible choices in November, that our ability to recover from the damage that this leadership continues to do, unrestrained by the Congress, by the Senate, unrestrained by the courts, especially the Supreme Court, and certainly unrestrained within his own administration. The likelihood of recovery, the difficulty, and the duration of recovery will become like Sisyphus rolling the rock up the hill. You only get halfway each time, and you never really get there. One of the great things in this country has been the evolution of the law. It's known around the world as a place where the rule of law governs, and that is under tremendous threat these days. But the question comes to me, Chuck, is whether people on the street realize what that means for them, that they really integrate the notion of we may not be a country of the rule of law anymore. We may be totally politicized in our courts. This is a problem because I don't think that people realize that an abandonment of the rule of law will affect them. I think in the public mind, in the public thought, the public conversation, if you will, people think that it won't affect them. That life will go on as before, and it will have no direct effect on their lives. But if you think about it, the federal courts have a big effect on our lives. They determine judicial policies, they determine so many things, so many aspects of our lives, our society, our institutions, our rights, our privileges, that ultimately, and that may be very soon ultimately, we will all be affected. Every one of us, you know, if you didn't think the Trump administration would affect your life, think about coronavirus. Think about what this administration could have done to protect us, but fail to do, and it's still failing to do. I've said throughout this administration that he's coming for us, that he will affect us, and now you have a stark example of that in coronavirus. It threatens all of us, it threatens our lives and our fortunes, and all the things the country has provided to us over the years, all the things that we are proud to be living in this country about. In the case of the law, it's more like the frog in the boiling water. We may not see it right away, may not burn us the same way coronavirus is burning us and will continue to burn us. It may be this slow, relentless deterioration of our legal infrastructure, of our rights, of all the principles that we've relied on and developed in the law over all these years. So I think the average person, the man on the street, had better wake up to this. This is not a drill, this is real, and the rights that he has enjoyed and that everyone has enjoyed over our lives in this generation are at great risk, and Dandenberg's letter points that out. He's right in so many ways. I think that's an especially valuable insight, Jay, because one of the things that the fear tactic, the bullying tactic, the threatening tactic, the retribution tactic, the vengeance and vindictiveness tactic that this administration has uniformly and consistently exercised is that it scares people away from understanding their connection with and identifying with the disempowered who are the primary victims, the helpless victims of most of these attacks. If you are a migrant seeking asylum from oppression or risk to life, you have no protections. Your ability to even keep your family with you has no protections. If you are a woman who, for whatever reasons, needs to make a choice to terminate a pregnancy in the early stages for your life or the child's life or the family's best interests, those rights are being eroded. If you are a worker, a teacher, a farmer who depends on stability of the economy, of the rule of law to protect not only our rights, but our environment, those rights are being eroded. No president has eroded environmental protections to the extent that this one has. No president has disregarded the rights of women, migrants, indigenous peoples to the extent that this one has. To the extent that people who vote don't identify with those people, distanced themselves from them, they need to remember the old saying. First, they came for Group 1. Exactly. Last, they come for me. We have to be in this together. If there's anything the coronavirus pandemic needs to teach us, it's that we need to address this with respect, understanding, and compassion for each other. And we need leadership that puts those first. Amen. You talk about voting, for example, and voting the existing administration out of office at the earliest possible time. Talk about reversing some of the things that, in fact, many, many, many of the things they've done, many of the bad policies that they've incorporated into government. But let me refer to a show that ThinkTech had back 10 years ago with Jack Balkan, who was and is the Dean of Constitutional Law at Yale. And I asked him, suppose we have a president who makes all kinds of backward steps, and we do have that now. Can't we just return to the way it was after his term of office is over? And Jack Balkan said, no, you don't understand. Everything that happens, everything on the timeline is built into the future. It's all relevant going forward. So you can't do, you know, you can't stretch it like a rubber band one way, then the other. You can't change its course like a yo-yo and go back to the way it was. Now, you have to work to achieve the benefit you want. Merely voting this administrative, this administrative, this administration out of office, merely throwing Trump out at the end of this term, it's not enough. For example, you talk about environmental laws. It took years, decades, a number of decades to reach our level of understanding, our level of incorporating science into our laws, a level of protecting the environment. That wasn't overnight. It wasn't just one person decided that. It was leadership and it was the gathering of many people and Congress taking many actions. And so if you vote Trump out of office, those laws, including a lot of judicial you know, rulings still apply. You have to go and reverse them. You have to fight the same fight we all fought before to get where we were before. It's about environment. It's about climate change. It's about immigration. It's about it's about kindness. It's about morality. And we're going to have to fight those fights again. It's not like the whole country would say, yeah, you're right. Let's let's go back to the way it was. We're going to have to reestablish our principles. That's not easy, Chuck. And I think that's exactly what this letter talks about is that the very core values and principles that are the foundation of the rule of law, of our society, of our governance and our judiciary are under direct attack and are being eroded. And we need to stand up for those. Jim Dandenberg, thank you from the bottom of my heart for doing that at the time and in the way that is most needed. Jim Dandenberg, thank you from the bottom of our hearts. And your letter does stand 10 feet tall as a monument to the profession, to the rule of law, and to the core values of the country. I sincerely hope that we can preserve the idea of your letter going forward, that we can change things and return to a higher level of moral principle as soon as possible. And thank you, Chuck, for coming down to discuss it. I hope we can discuss it again because it's not just one discussion. It's a series of discussions that we need to have on this very point. Thank you, Chuck Crumpton. Thank you, Jay. And I'll leave you with three words, remember in November. And beyond. Aloha. Take care.