March 16, 2020

This Is Significant

Hon. James Dannenberg
Hon. James Dannenberg, Ret.

Former Judge James Dannenberg resigned from the Supreme Court Bar effective this last Wednesday. In a letter to Chief Justice John Roberts, he detailed why he has lost respect for the court.

Dannenberg has a long legal career history. He is a retired Hawaii state judge, who sat on the District Court of the 1st Circuit of the state judiciary for 27 years. Prior to that he was Deputy Attorney General for the State of Hawaii and served as an adjunct professor at the University of Hawaii Richardson Law School. He frequently appeared before the SCOTUS in person and  as signatory on briefs, acting as part of what is considered to be the most prestigious association of attorneys in the country, the Supreme Court Bar. The lawyers of the Bar stand as "a sprawling national signifier" of the legitimacy of the SCOTUS. Dannenberg  had been a member of that bar since 1972.

On Wednesday he submitted a letter of resignation from the Bar to Chief Justice John Roberts. The full text of the letter follows:

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

For those unfamiliar, the Lochner era was a roughly three decade period of time following the decision in Lochner v. New York, 198 US 45 (1905). Lochner was a labor law case where a split 5/4 Court effectively invalidated all state laws that limited the number of hours an employee could be required to work. The Court effectively overruled itself in the 1934 decision in Nebbia v. New York.

Dannenberg's mention of Plessy refers to Plessy v. Ferguson, 163 U.S. 537 (1896), in which the segregationist doctrine of Separate but Equal was codified.

Image result for plessy v ferguson cartoon
Plessy v. Ferguson Relegated People of Color to a Separate But Equal Railcar. The badly flawed decision became the legacy of Chief Justice Melville Fuller

This resignation accompanied by Dannenberg's rebuke is a serious shot across the bow. Chief Justice Roberts is, I feel certain, rightly concerned about his legacy. The references to Lochner and to Plessy are subtle reminders that decisions made by the Court that are later viewed as flawed tend to stain the legacy of not just the Court, but the Chief Justice in particular.

Since Dannenberg is just the latest of several hundred retired judges, justices, and constitutional scholars to chastise the Court, Roberts would do well to consider a course correction before it is too late.


February 24, 2020

While Decent White People Were Sleeping, The Bigots Stole America

Author John Pavlovitz 
Published 16 February, 2020

It’s morning in America. 

A lot happened while we were sleeping. 

This is not the America we thought existed back in November of 2008—likely the last time many of us were fully awake. 

Back then, we basked in the warm glow of the reality of a black President and we grew comfortable, nestling down into a complacency that only the blind spots of privilege and false information provide. 

The joy of that moment became a slow-acting emotional sedative that slowly squeezed out the urgency from us; one that gradually dulled our senses, that day by day numbed our minds into imagining we had arrived together at Martin’s glorious mountaintop. If we had taken the time to ask vulnerable people, they’d have told us not to fall asleep. 

Believing that the aspirational “we shall overcomes” that once rang out, were now a fixed and unchangeable present, we settled cozily into that place where the heart rate slows and the limbs and eyelids grow heavy—and where without realizing it, slumber suddenly overtakes you: 

one blink awake, the next blink asleep. 

And for eight years we sleepwalked through the world, physically here and moving through daylight but not fully present, not totally seeing—caught between the actual and the unreal world, between the real nightmare and the imagined dream. Yes, we still talked and marched and campaigned and worked, but we did so slightly sedated in the haze of bad stories, willful ignorance, and wishful thinking. 

Meanwhile, the bigots woke up. 

Shaken violently from sleep in November 2008, by the reality of what decades of fear and terrible theology taught them was the absolute worst place they could find themselves—they began to mount a fierce counterattack. 

They created news outlets and social media platforms designed to filter out everything except that which would fully trigger terror within the hearts of their intended targets and would-be allies: 

fantastical stories of a pervasive and coordinated Gay Agenda coming to convert their children; 

of violent, heavily armed, brown-skinned drug gangs overrunning our borders; 

of godless, abortion-mad progressives having indiscriminate sex without fear or care; 

of Muslim terrorist hordes infiltrating our neighborhoods and bodegas; 

of America-hating Democrats coming for their jobs and flags and prayers and guns. 

And we were still sleepwalking… 

They leveraged thousands of Christian pulpits, where every seven days they’d wildly stoke the fires of people’s phobias and fears, weaponize the Scriptures against gays and migrants and Muslims, pervert the expansive Gospel of Jesus into rabid nationalism—and sermon by sermon, enlist them all into service as passionate soldiers in the Army of the straight, white, American, male Lord. 

And we were still sleepwalking… 

Then, to inculcate the terror fully, they propped up a sideshow carnival barker as their chosen one; a barren, empty husk of a man with no discernible moral convictions beyond wealth accumulation—who they could use as a flesh and blood avatar to embody and perpetuate themselves. 

They fashioned a vile, blustery orange idol to rally the fearful and the angry and the callous hearts around; one who would daily dig into the stinking muck to find a deeper bottom—and in the sleep-induced state we were in we thought it was a joke. We laughed ourselves back into a dreamworld where everything would be fine and where decency would prevail and where the system would work; so much so that one hundred million of us slept all the way through an election cycle. 

And here we are. 

I wonder if we’re fully awake now. 

I wonder if we’re ready to cast off the cobwebs of our complacency and enter fully into the bloody fray in front of us. 

I wonder if we’re willing to rouse ourselves into lucidity and step into the jagged trenches of the fight of our lives and for the disparate swath of humanity who we’ve let down. 

I wonder if we’re prepared to face our culpability and admit our failures and make amends with our time and our resources and our votes. 

Or maybe we’ll just find another way to anesthetize. Maybe we’ll self-medicate on social media and reality TV and two-for-one happy hour specials and puppy photos on social media, and again retreat into the comfortable places and once more grow so sleepy that we’ll nestle back into slumber. 
I wonder if there’s still time to undo the present nightmare. 

The only way we’ll have a chance to know is if we wake up and stay awake. 

It’s morning in America. 

There’s mourning in America. 

Rise and shine. 


October 13, 2019

The Sounds of Silence

The meanings hidden within the words...

Paul Simon wrote Sounds of Silence when he was just age 21. I was age 11 at the time and fell in love with the song. It didn't at the time occur to me just how amazing it was that one as young as Paul Simon should have such intrinsically deep understanding of interpersonal communication, yet he has shown his depth of mind in almost everything he has written.

Those first few words... “Hello darkness, my old friend...” seem to speak of an introverted and lonely human. Simon is telling his story... or perhaps the story of someone very close to him. Those few words tell the story of someone more comfortable being alone in the night than in the glare and noise of the city... an unknown and perhaps unrecognized child speaking. The lonely child who has grown into adulthood. But I've always wondered if that was really what it meant, or was he saying something else entirely.

Doesn't that song fit so perfectly with this day, when our world has become so noisy and intrusive? So damn vulgar. I can't remember a time quite like this. Not the Cold War, not Vietnam, not Kent State or even the Nixon impeachment was close to what we are experiencing now. People are not talking with each other these days. They are talking at, and often shouting at each other. In the 60s we had our differences and they were stark differences too. Nothing like this though. In the 60s the argument remained political. Today we have a president openly threatening civil war if he doesn't get what he wants.

Perhaps this wouldn't be quite so frightening if it were only the U.S. president, but it's not. Would be tyrants have gained power in nations across the globe. There have been many conversations recently where someone has raised the specter of a world permanently changed. Suggesting that we will never be able to find that equilibrium that we almost had. That democracy itself has been so badly pummeled that we will have lost it. It causes me to wonder if Paul Simon was perhaps not writing lyrics for a song about the times he was seeing and experiencing, but rather that he was predicting the future.

We humans have never really tried very hard to communicate and certainly not to listen to others, but today is somehow worse than ever before. There is no longer that imperative that we should understand others. Instead we must overpower them and hold them down. Perhaps this is what Paul Simon was trying to tell us.

He's never explained the lyrics of that anthem to our innocent youth. He's just left it for us to figure out. I wonder if we will. I wonder if we can.

August 28, 2019

March on Washington Remembered


Edith Lee-Payne at the March on Washington, 1963  
Photo by Rowland Scherman, Courtesy US National Archives

In the account below Edith Lee-Payne recalls the day she was photographed as a 12 year old participant in the March on Washington, and the curious history of that photograph through 2011.
My grandparents, Marie and John Spencer Lee, left Culpeper, Virginia for Washington, D.C. in the early 1900s, where my mother Dorothy Lee was born. My mother settled in Detroit, Michigan in 1940, married William Henderson Lee in 1947, and I was born four years later.  Summer vacations were always spent in Washington.  My 1963 summer vacation, however, is forever marked in history and my personal memory, because I was there when the March on Washington for Jobs and Freedom took place on August 28, 1963.  That March, which took place on my 12th birthday, changed me and transformed the nation.
Dr. Martin Luther King’s “I Have a Dream” speech is by far the best remembered moment at the March on Washington.  King gave the speech before an audience of 250,000 gathered at the foot of the Lincoln Memorial.  With the giant statue of Abraham Lincoln in the shaded background, Dr. King described a world he envisioned as dominated by love, freedom, and justice
I heard the speech that day but I also heard one similar two months before in Detroit.  On June 23, 1963, Rev. Dr. Martin Luther King Jr. and Rev. C. L. Franklin (Aretha Franklin’s father) led a march of over 100,000 people down Woodward Avenue to Cobo Hall in downtown Detroit.  Dr. King encouraged us to join him and others in Washington, D.C. on August 28 for a peaceful demonstration that he believed would help bring attention to the injustices of segregation throughout the south. He reminded us “injustice anywhere is a threat to justice everywhere.” Convinced by Dr. King’s rousing discourse and other reasons I later learned, my mother scheduled our annual summer vacation so we could attend the March on Washington while celebrating my 12th birthday.
Both in Detroit and Washington, Dr. King used the refrain “I have a Dream.”  Detroiters still contend the “I Have a Dream” speech made famous in Washington, D.C., was actually given first in Detroit.  We already lived the dreams Dr. King envisioned for all Americans across the nation, particularly in the south.  My neighborhood, on Detroit’s northwest side, was racially integrated.  The schools I attended, Wingert Elementary and Condon Jr. High, were integrated.  Our family church, Carter Metropolitan Christian Methodist Episcopal, was integrated and included interracial families.  My mother and I dined at restaurants, sat at lunch counters served by white and/or black waitresses, without incident. We drank from water fountains without signs distinguishing “color.”  My mother never learned to drive so busses and cabs were our primary mode of transportation, also without concern of any consequence or incident.
It was inconceivable to me to know that people who looked like I did, and separated from Detroit by a few hundred miles, suffered such horrific experiences and limitations in their daily lives and often risked death.  Cross burnings, beatings, lynchings, and murders were incidents reported regularly in the periodicals my mother subscribed to including Ebony and Jet magazines and Detroit’s Negro newspaper, The Chronicle.  Mississippi Civil Rights activist Medgar Evers was one of many lives tragically sacrificed just months before the March on Washington.  Even at 11, I knew that young people like me were risking their lives to participate in demonstrations in Birmingham and elsewhere across the South for the freedoms that were part of my daily life.  I came to realize that what I learned in school about the Constitution, the Emancipation Proclamation, freedom, and opportunity, led me to question the validity of these documents and concepts.  There were no exceptions in these documents allowing these dreadful experiences to happen, yet they did.
It appeared to me that a million people converged on the Lincoln Memorial in Washington, D.C. that hot, humid day in August.  Busses marked with names of cities from across the country endlessly lined the streets.  Dr. King’s message of non-violence, resistance against segregation and discrimination came through clearly again in his “Southern preacher” voice that I first heard in Detroit two months earlier.  The March in Detroit was a testament to the peaceful demonstration Dr. King referred to as thousands of people assembled in support of the civil rights struggles in the South.  This March on Washington included not only people in support of the civil rights struggles, like my mother and I, but the people who aspired for the freedoms and privileges they were entitled to; many of whom undoubtedly suffered violence while exercising their First Amendment right to peacefully protest injustice.  This March was a testament of an entire nation of all people of every race, creed, color, and religion, standing together in the Christian spirit of love, unity, and peace.
As I listened to Dr. King and others who spoke, the simultaneous expressions of pain, anger, hurt, helplessness, despair, and hope, especially hope, was evident in the eyes and on the faces of people around me, including my mother.  Although I knew my mother was a professional dancer who shared the stage with prominent entertainers during the 1930s and 1940s, such as Cab Callaway, Billy Eckstein, Ella Fitzgerald, and Sammy Davis Sr., I learned for the first time about the injustices she encountered as she and other entertainers traveled across the South.  I overheard my mother’s brief conversation with Lena Horne where they both recalled frightening experiences and observations.  Then I realized that the tears on her face that day were not simply out of compassion for others struggling for freedom in the South, they were reminders of what she had personally witnessed and felt.
The significance of the March on Washington left an indelible memory that I appreciate with each passing year.  That day in history helped bring the enactment of the Civil Rights Act of 1964 and the Voting Rights Act of 1965 which helped make segregation and discrimination illegal and ensured millions of southern blacks access to the ballot.  Thanks to my mother, I garnered a place in history that day as well, although I wouldn’t know about it for another 45 years.
In late October 2008, my cousin Marsha phoned saying she saw a picture of me on the cover of a 2009 Black History Calendar.  She said I was holding a banner displaying “March for Jobs” and the month “August,” the only words visible in the photo.    I recalled holding a banner at the March on Washington that I still have.  Marsha described that the other images in the calendar included:  Dr. King, Frederick Douglass, Sojourner Truth, Jesse Owens, Langston Hughes, and W.E.B Dubois, and that the photos were courtesy of a museum.   Searching the picture’s origin led me to the National Archives and Records Administration (NARA) where I learned from archivist Rutha Beamon of three photos of me in its holdings. My mother is in two of the photos making them the most special since she is no longer with me.
What an incredible blessing and humbling experience that an image taken of me, captioned by the NARA, “Photograph of a Young Woman at the Civil Rights March on Washington D.C. with a Banner” has been viewed in articles, publications, and documentaries around the world.  Equally humbling, is to be associated with the greatest non-violent march in this nation’s history and with its most prominent leader, Dr. Martin Luther King Jr.  Most notably, the photo appears in the Martin Luther King Jr. Memorial brochure and the documentaries, “From MLK to Today,” by movie director Antoine Fuqua and the NARA’s “March on Washington Photographs.”
Thanks to Mark Katkov of the NARA I learned that Rowland Scherman was the photographer who captured my raw emotions on that August day in 1963.   Mr. Scherman happened to visit the NARA in the fall of 2011 identifying images of his work from the March on Washington, including the images of me.   Mr. Scherman and I plan to meet soon.
Hurricane Irene prevented the scheduled August 28, 2011 dedication of the Martin Luther King Jr. Memorial, that would have marked the 48th anniversary of the 1963 March on Washington and my 60th birthday; however, I returned to Washington, D.C. for the rescheduled celebration on October 16, 201l.  Ironically, this was my grandson Zaire’s 7th birthday.  On a pleasant fall day, busses marked with the names of cities from across the country again lined the streets of Washington, D.C. as on August 28, 1963. Attending this dedication was an opportunity to give tribute to Dr. King’s legacy, be inspired to continue his course, and reflect on that day and time.   Although Dr. King’s dreams are not yet fully realized, his tireless leadership and ultimate sacrifice to bring a nation together will never be diminished as long as I and future generations remain committed and steadfast in the pursuit of the type of society Dr. King envisioned.  We must and we will keep the dream alive.

Payne, E. (2012, February 10) March on Washington for Jobs and Freedom, August 28, 1963: One Participant Remembers. Retrieved from