Hawaiʻi's Former Chief Justice on Defending the Rule of Law

This week on Keepers of Our Republic, host Brooke Bergen sits down with former Hawaiʻi Supreme Court Chief Justice Mark E. Recktenwald for a wide-ranging conversation about judicial independence, accountability, and the unique role of state courts in American democracy.

Justice Recktenwald takes us inside Hawaiʻi's distinctive merit-based system for selecting judges and explains how Native Hawaiian history, culture, and traditional law continue to shape the state's legal system today. He also discusses a developing fight over who has the authority to discipline federal prosecutors—and why state oversight of attorney ethics remains an important check on government power.

The conversation also explores growing threats against judges, declining trust in the courts, attacks on the legal profession, and a difficult question facing the judiciary today: When the rule of law itself is being challenged, should sitting judges have greater freedom to speak out?

Justice Recktenwald also shares why he joined the Alliance of Former Chief Justices and how retired judges can use their voices to defend judicial independence while remaining committed to nonpartisanship.

Welcome back to Keepers of our Republic, a new weekly podcast from Keep Our Republic that takes listeners inside the institutions at the heart of American democracy. 

Every week, Keepers of Our Republic features thoughtful conversations with election administrators and retired federal judges. We explore how elections are really run, discuss why an independent judiciary is essential to a strong republic, and separate fact from fiction in a fast-changing world. 

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Transcript

SPEAKER_00 0:10

Welcome back everyone to Keepers of Our Republic, a weekly nonpartisan podcast by the nonprofit Keep Our Republic. My name is Brooke Bergen, and I am your host this week. We are talking each week with judges and former election officials from across the United States about what it takes to keep our republic and support our democracy in these uncertain times. This week, I am happy to be joined by Judge Mark Rechtenwald, former Chief Justice of the Hawaii State Supreme Court. This week we're talking about Hawaii's unique system for state judicial appointments and how Native Hawaiian culture and history shape its legal system today. We're also taking a look at new developments inside the Department of Justice and a new position they're taking on who gets to discipline federal prosecutors. If you don't already, make sure you hit like and subscribe, follow us wherever you get your podcasts, and of course, watch us on YouTube. All right. Thank you so much, Judge Rechtermald. And thank you for joining us on the podcast. It's a pleasure to have you here.

SPEAKER_02 1:14

Brooke, thank you so much. And thanks for all the work you've done to uh focus on issues related to the rule of law and elections in our country. Super important stuff. And I'm very grateful to be here today.

SPEAKER_00 1:24

My pleasure. I'm excited to jump into some of those topics with you here today. Um, so this is your this is obviously your first time joining us here at Keepers of Our Republic. So I'd love to just hear a little bit about your background specifically. What inspired you to join the legal profession? How did you get your start?

SPEAKER_02 1:43

Well, you know, it it's my father was a lawyer, which meant, of course, I didn't want to be a lawyer. Um so it took a long time to uh come around to that. But the sort of the key thing for me, I spent time in Washington, DC um around 1980. And the people who working on Capitol Hill, the people who I respected, the people who inspired me, uh were both journalists and lawyers. And there were folks who were uh doing very important work, investigating the Three Mile Island nuclear plant plant accident, uh, beginning to develop alternative energy, um, you know, developing consumer product safety, this consumer product safety commission. And so the committees and senator who I was working with were focused on issues like that. And it really caused me to think, um, you know, journalism looks really interesting. And I did that for a cut for a year or two, and then um I decided to uh to try the law just because it would be a way to be able to have an impact um, you know, that would could really hopefully make uh society better for people and uh make our make our society more just and fair.

SPEAKER_00 2:49

And what inspired you then to, because you've you've had a a a wide career in the legal profession, and I want to jump back to to some of your experience as a U.S. attorney in a second here, but what inspired you to want to join the bench as opposed to continue in a street legal practice?

SPEAKER_02 3:07

You know, I had been a law clerk right after law school. So in in I came back to Hawaii where I'd been work living and working as a reporter and working at our state legislature. I came back um and I worked for a U.S. district uh judge named Harold Fong. Um, watching him in court every day, watching the way uh he was able to, even through very small gestures of sort of kindness, of compassion towards folks who really had no hope in their life. But by saying, You're only gonna go to jail for 80 months instead of 84 months because I see some good in you, and here's what I see, kind of inspired me to think, you know, that's that kind of impact and that kind of being, you know, a gracious but still strong person who's applying the law is something that would be an amazing opportunity to have. So I I kept it in the back of my mind, but you know, it's not one of those things you can plan on. It just either it happens or it doesn't. And uh so I just kind of went off and lived my life. And um, fortunately, uh things came around to where I had that opportunity. Much later, though.

SPEAKER_00 4:13

What is the Hawaiian um system for how judges uh are appointed, elected, partisan versus nonpartisan? We had a really fascinating conversation with um with one of your colleagues, um, Tom Phillips, uh, in our last episode where we talked about the Texas system um for how judges are appointed. What is the the Hawaiian Hawaiian system?

SPEAKER_02 4:39

Well, ours is uh we call a completely merit-based system. So uh no elections, not either uh in the first instance to come to the bench or a retention election. So uh we have a nonpartisan commission with nine members uh appointed by various government officials, and two of whom are elected by the bar. They screen candidates and make recommendations uh uh of four to six candidates typically to the governor to appoint for our appellate courts or our general jurisdiction trial courts, the trial, the courts that do jury trials, and then uh interestingly to the chief justice for our uh specialty court or our our sort of more uh focused courts, are what we call our district courts, traffic, uh misdemeanor crimes, uh TROs, family court. Um, and so either the the governor or the chief justice selects from that list and then it goes to the uh Senate to be confirmed. So that is there is a political element to the process, but that element is in the um uh the process of confirmation. And then at the end of each judge's term, that same commission decides whether to retain them for another term or not. So it's a system that was designed to uh leave input for the political branches. So some of the members on the commission are appointed by members of the legislature and the governor, but also to try to try to pick people without regard to you know their political backgrounds and and simply based on the merits of uh what they've accomplished so far in their career. So we're we're one of the pure purest examples of a merit-based uh selection system um in the country.

SPEAKER_00 6:21

Yeah, that's very distinct from other states, I know. When you talk to your colleagues or when you think about um the more overt campaigning uh political parties, uh donations um that get wrapped up with judicial elections in other states. Are you grateful for the uh for the Hawaiian system, or do you do you wish you'd had an opportunity to be out on the campaign trail?

SPEAKER_02 6:47

Well, you know, it's very interesting. And I, you know, I'm not I'm not saying there's anything wrong with how anyone else chooses to do it. And I've had colleagues who I've talked from other states who've told me they enjoy getting out in the state, they enjoy going out and hearing what people think and and having to at least do the sort of grassroots campaigning. I don't think anybody particularly enjoys having to fundraise, and and you know, judges have to be insulated somewhat from the actual fundraising process. But um, you know, for me, uh the the issue of money and where the money comes from and and uh the potential effect on the judicial process, that was always the key for me. And and and I I remember I had a mentor who had uh been the the head of our intermediate court of appeals and uh who told me he there's a there's an association of judges of the it chief judges of the intermediate court of appeals. He said, you know, I went once and I really didn't care for it. You know, all they were talking about is elections and raising money. And you know, I was the I was a new young kid on the block. I said, Yeah, Jim, I hear it are you sure, sure, sure. So of course I went to the conference the first night we were there. Uh I went out to dinner with some uh judges from southeastern states, wonderful people. And almost immediately the conversation turned to a pending race in one of those states. And the the the the sort of the conversation was okay, so Joe, who's running against Jane, Joe has the timber industry, the railroad industry, and the chemical industry. And Jane has the trial lawyers, the insurance companies, and like the chemical companies. And you know, just like hearing that for me, it kind of first of all, I realized my friend Jim was a really smart guy. And secondly, uh, you know, made me realize that just especially as an amount of money is grown, it's very hard to insulate yourself uh from it. Although I I will I will give credit to my colleagues in other states, the rules of judicial conduct, uh try very hard to keep them one step away from actually soliciting funds and have committees in between. But um, for me personally and for us in Hawaii, um uh I think that that sort of potential impact of of money on the on the on the judicial process is is not a good mix. That's just again my personal view. And yeah, I respect my colleagues who, you know, have told me passionately they love going out there going door to door in Missoula, Montana, you know, and I I I kind of get that, you know, but um, you know, there's a far cry from going door to door in Missoula to being in, you know, uh Matt in Wisconsin and having a hundred almost a hundred million dollars put into a Supreme Court race, which is uh crazy amount of money for a state of that size.

unknown 9:29

Yeah.

SPEAKER_00 9:30

Yeah, I have a you you talked about your state there and and some of the differences. I have I I don't know where this question is going to go, but I'm so interested because I know very little about Hawaiian legal history. I grew up out west and went to law school out west, and we know that our legal system um is very affected by and continue is colored by, you know, the western expansion movement, by Spanish colonization, by Mexican history, you know, things like water law and um even marital asset distribution um and property laws, it's very affected by our history. And then you think of places like Louisiana, which was of course colonized by the French, they've got a whole different thing going on in the Louisiana legal system. You know, Hawaii is obviously very unique in the American states. To what extent do you think Hawaii's unique history, like pre-colonization or or pre-statehood, um affects the Hawaiian legal system for those of us who who aren't from the state?

SPEAKER_02 10:35

It it's a great question, Brooke. It really touches upon some of the most significant uh developments in our legal history in recent years. So, of course, Hawaii used to be an independent nation and was um taken over by or with the support of the United States government in 1893 and then was a territory and then became a republic before joining our nation as a state in in 1959. And at various points during that that history, particularly in the early 1900s, Hawaiian culture was uh often suppressed, uh, Hawaiian language began to die out. Um, but then in the late in the 60s and into the 70s, there was a renaissance of a pride in the Hawaiian people, pride in the culture of Hawaii. And in 1978, we had a constitutional convention which um amended our constitution and incorporated those values in a variety of different ways, from um uh you know, protection, uh explicit protections for the environment, explicit protections for traditional and customary Hawaiian gathering rights. And um that was a very, very significant development. And that really has been a big part of what my court has done over the last 50 years is trying to give meaning to uh these very broad, bold um uh you know, statements of what who we are as a people and and what we believe in. And meanwhile, there's a whole common law development uh led by one of my predecessors, William S. Richardson, who uh you know began to incorporate principles of native Hawaiian traditional law into uh our our legal system. And the best example of that is access to the beaches. So he uh based on principles of traditional Native Hawaiian law, basically uh my court reached a decision that said people don't own the beach. You cannot own the beach. So everybody uh jointly owns the beach, and you only own up to the sort of to the water line or the high reach of the water line, and also a lot of decisions related to water rights, which of course here in Hawaii, that's a huge issue on any island. So we have a really interesting mix of um you know traditional and customary uh laws that you know that are very much part of our system in various ways. And we're very, very proud of our constitution and uh have a very strong and dynamic um uh view of that constitution. You know, some states they take the position that you know the they they are not going to go farther than the U.S. Constitution. They're gonna move essentially in lockstep with how the United States Supreme Court defines their constitution. And we've taken another path, which is to be much more uh active, both in interpreting the provisions unique to us and in interpreting provisions that have similar language. Um, so uh that's something that you know we've had uh very high profile decisions related to gun rights. Uh, we had another high-profile decision uh related to the establishment clause. Um, and you know, these again reflect our our views as a state and what we saw in our constitution uh as a vibrant um, you know, sort of uh political entity that's going to think for itself based on uh its own history and values, of course, consistent with the U.S. Constitution. So it's a it's a fascinating, fascinating court to sit on.

SPEAKER_00 14:03

That is it's so fascinating. Thank you for for taking us uh a little into into that history because it's so it's just a completely different lineage, uh a proud cultural history that you guys have in that state that is so distinct from from anyone else we've had a chance to talk to. Um I want to turn now before I get too ahead of myself to to kind of a totally different topic. Um, and that is you recently authored, co-authored um an opinion piece that appeared in among, I think, a couple of places, Bloomberg Law, talking about the Department of Justice and their new position on disciplinary proceedings for for their attorneys. Can you walk us through for those of us who didn't read the article, which of course I'm going to link in the show notes for this episode, but for those of us who aren't familiar with with what's going on there, can you just kind of walk us through the background of this?

SPEAKER_02 14:59

Yeah, it's a really important um sort of tension between what the Department of Justice is trying to do and what states and the District of Columbia have historically done, which is regulate the legal profession. It goes back to the very uh beginning of our nation that lawyers, in essence, were admitted to practice and in some ways regulated by uh particular states and um and historically, and a huge component that goes with that is that those states were the entities responsible for um enforcing dis adopting disciplinary rules and then enforcing those rules with sanctions up to and including disbarment. And that's something that I believe every Supreme Court across a state supreme court across the country, it's an important part of what we do. You know, we would get a steady diet of of cases, you know, ranging from lawyers who um didn't handle client funds properly to you know lawyers who were accused of misrepresenting things to the court that we would handle and try to determine uh what the appropriate discipline was. So uh what I think is problematic uh in what the justice department did, and there's really two phases to it. First, there was a rulemaking uh where the department basically said if there is a complaint against a Department of Justice attorney, the state basically needs to defer to the Justice Department's internal review process uh to take the first cut at deciding what the appropriate way of handling that dispute is. And that's you know, super problematic because I think while there may be times when the state wouldn't say, you know what, you go ahead, Department of Justice, you investigate your own lawyer, uh, we'll stand by and see uh where you are at the end of that. There's going to be other cases where the state has a very strong interest in moving quickly. And I think the sort of unstated concern was that, you know, possibly there could be cases where uh the department would say, We've investigated this, we don't, we've determined there's no wrongdoing, and uh we declare this matter at a close. So that was sort of round one. There was a a rule that's been out publicly, got a ton, like a million comments, I think overwhelmingly negative. And then the next thing that happened is there was a a particular person uh who was uh who worked in the um first Trump administration who towards the end of the administration, it was in the Department of Justice at a very high level, um, and who had advocated very, very strongly for the view that the election, particularly in Georgia, uh was was uh improper or there'd been improper influences. And he was basically told by um the the top two, the acting attorney general, acting deputy attorney general, we have investigated this thoroughly. There's nothing there. Uh, and you, you know, we'll tell you these are the folks you could talk to if you want to satisfy yourself to that, but there is nothing there, and we're not going to pursue this matter further. He continued to pursue it, and uh it got to the point of of actually coming to the attention of the president. Uh to his credit, he who eventually rejected the idea of uh of sort of moving forward on the theory that this individual was pushing. But after all that happened, uh he was a subject of disciplinary proceedings in the District of Columbia, and um, which are now pending. Initially, there was a recommendation to suspend him for uh uh two years, and then that uh upon review, uh that was up to a disbarment, and now that's in front of the DC Court of Appeals, uh the in essence the highest court of the District of Columbia. So this lawsuit by the Department of Justice, not by this individual, by the Department of Justice, basically seeks to stop that um ethics inquiry and um really would cast a very, very large shadow and and basically said, we will we will uh regulate and ensure that our lawyers are ethical to our own standards, and we uh do not need nor do we welcome the help of the states in doing that. And again, that's a fundamental reordering uh of the of the sort of system that's existed for you know almost 250 years.

SPEAKER_00 19:12

Yeah. That's fascinating. And you know, as a Washingtonian personally, you know, it's there's a real tension right now between the district um and federal and and the very unique um system that we have uh as a district, not a state. Um and I know within the district here that that tension is is always uh simmering underneath the surface of certain things. Um thanks for thanks for sharing that with us. And it's not something that I'd seen widely covered in the news. And so I'm I'm glad it's getting some attention. And admittedly, we are filming this right now, the week of some major Supreme Court decisions being handed down. So it's a it's a busy season. It's a busy season for for legal news at the particular moment.

SPEAKER_02 19:57

Um But you know, let me just say, Brooke, you know, for a judge, you know, you rely on the ethical conduct of the lawyers who appear before you. It's an adversarial system. You rely on folks to make representations to you that are accurate. You rely on lawyers to uh be aware of and follow the codes of professional responsibility. So that's a you know, that's really foundational to our system. And you know, to have multiple checks on what attorneys can do. I I totally understand the department wanting to hold its folks to a high standard. I used to be an assistant U.S. attorney, and so I was very aware that there was an office of professional responsibility in the department that was waiting to hold folks accountable. But the key is you're always licensed by a state jurisdiction. You're licensed by a state or the district, and you need to be accountable to that jurisdiction's code of conduct, and that's a really important check. And so that was something in the early days of the administration, you know, I really noticed, you know, when there were issues of about alleged misrepresentations being made to courts, um, you know, that the plane had taken off to El Salvador already. There was nothing I could do, Your Honor. And, you know, those are things that classically United States district judges take very, very seriously, and they are very, very careful uh to make sure that they're they're not being told uh incorrect information because they have to rely so much, especially on government lawyers. And that's why you know there's sort of the the each time something like this happens, it undercuts what they sort of what they call a presumption of regularity uh for the United States. And that for me, it cut, you know, I I've been on both sides as a Supreme Court justice and uh as an assistant U.S. attorney. And it, you know, it's it really dismays me to see that that um those the that the trust that had built up over decades or centuries of the Department of Justice lawyers appearing in court and being uh folks who the court could count on to tell it the truth uh has eroded.

SPEAKER_00 22:05

Yeah. Let's talk about some of the other challenges facing the judiciary right now. Um what what do you see um perhaps even more uniquely from a state perspective, but just in general as being some of the biggest threats and challenges that our judiciary is facing at this moment?

SPEAKER_02 22:23

Well there's a whole range of them. You know, obviously you know threats to the safety and security of of judges and you know more to the point folks who come into are the courthouse you know and I think sometimes you know maybe people say well those that's just the judges you know they're whining because about themselves. Well the reality is you know some of these attacks take place at courthouses. People show up at courthouses and you know looking to find the judge and uh you know there's other innocent folks there. And so uh it's it's really an issue for everyone. And the the number of of threats and um actual incidents of assault or or worse has you know I think gone up like tenfold over the last decade or so both on the federal side and on the state side. And I think you know clearly the rhetoric that has um uh uh elevated in the last year the sort of demonizing judges personalizing uh them for uh for as bad people for their rulings all fuels that so that's something that I think both state and federal judges are very very aware of and um if anything it's more of an issue in state courts because you know federal courts typically are in big federal courthouses with a lot of U.S. marshals that have been very well you know developed for security. I mean states have you know little bitty courthouses out in the middle of you know wherever and trying to secure those courthouses is is can be a real challenge. So that's that's one issue. I think um you know challenges to the legitimacy of the judicial process to this you know suggestions that judges just rule the way they do because they're partisan uh because they have political beliefs I think are ultimately very corrosive to a respect for the rule of law. The suggestion that you know maybe I just won't follow that decision if I don't feel like following that decision. I think again for an ordinary citizen who hears that, you know, I think it it again it tends to erode uh the fake that maybe they had they had in the system, you know, which I think the beauty of our system is I I think people believe that the courts are they absolutely understand they're not perfect. They're not going to always reach the right result, but they fundamentally believe they're gonna get a fair shake when they come to a federal or state court in the United States. And as disappointed as they might be they will accept that result and and move forward with their lives for you know the vast majority of folks but uh you know when they when they see somebody very powerful basically saying now I'm not gonna you know I'm I'm just gonna go ahead and keep doing what I was doing I think that uh has an undercut uh an effect of undercutting the courts and um you know the other thing is just you know the the way in which the bar has been subject to um you know the the executive orders that uh in essence um punished law firms who took positions or clients that were disfavored by the administration that affects courts because we do rely uh on the lawyers to come forward and advocate for the cases and and you know the better the lawyer the better the advocacy the better the outcome from the point of view of the court and so I think that is something that you know really is concerning uh to me as well. So there's a lot of different ways in which um I think we need to stand up for the independence of of the judici of judges in general and the legal profession.

unknown 25:47

Yeah.

SPEAKER_00 25:48

And of course it's not just you you alone saying this um you have a number of colleagues who have been speaking out about these issues that we've been able to interview. Keep Our Republic has recently formed the or helped to co-found the Alliance of former chief justices of which you are a proud member and which is how we were we were able to connect. Any any thoughts or or messages you have for your colleagues at state supreme courts or who are currently sitting on state benches that you would like to offer in these you know very very difficult uncertain times right now well you know the thing for me you know again the the the executive orders that targeted law firms were a a a critical moment for me.

SPEAKER_02 26:31

I was still sitting as a uh Supreme Court justice at that time and I was very concerned about the effect on the system and you know I sort of was began calling folks I knew just to say you know what what's being done you know who's speaking out who's gonna have something to say about this and and um it it ultimately you know different lawyers of different some former judges came out and submitted amicus briefs and so the position was ultimately argued in front of the courts that these these executive orders were very very very corrosive to our democracy but that sort of raised to me the notion and and really highlighted the notion that as a sitting judge I had uh strict limits on my ability to speak on issues um that could in any way be perceived as partisan and so this is sort of a I guess you could call it a gray area you know when is is it is we're encouraged to speak up in support of judicial independence and the rule of law to educate the public but when we do that in a way that might be viewed as critical of a particular political party or person have we strayed into um you know unauthorized political conduct so to me when I did retire and found out that some of my colleagues had already started the process of forming the alliance uh I was all in right away. And I think you know the message to those who are still serving is uh we have this group that does speak up. We're nonpartisan we're not here to to elect a particular candidate we're here to stand up for the rule of law and point out why it matters and help educate people uh as to why it's important. Now the one other thing I will say is I've written I I worked on a law review article uh that I hope will come out by the end of the summer where I advocate that sitting judges should have a little more flexibility to speak out in response to challenges to the rule of law. And you know one thing I'm thinking of there is very very early in the this second Trump administration um the president criticized Judge Bosberg in the District of Columbia in very harsh explicit terms for a ruling he made regarding the return of folks to um I believe it was at El Salvador it was a case I alluded to earlier um and calling for his impeachment this judge should be impeached and uh Chief Justice Roberts to his credit um issued a statement a few hours later that it didn't mention the president by name but very clearly was referring to his remarks and in essence said uh the the proper way to challenge a ruling that you disagree with is through appeal it's not to threaten that judge with impeachment and to me that recognized that there there is a there there is a way in which judges can and and should be able to speak um that defends the rule of law without making them openly partisan. And so I've tried to kind of look at what he said there and what other folks have done and try to uh create a set of principles that gives judges a little more flexibility to be able to speak without fear of being subject to judicial discipline complaints because we have a disciplinary system too and um some judges have been subject to those complaints and so I think we need to give them a little more clarity. I think judges should be able to um speak up for the system. To me a judge ought to be able to say it's it's wrong or we should not punish lawyers for who they represent or the positions they argue, as long as those positions are ethically sound and supportable by the law and the facts uh the fact that they are distasteful to people in power should not be a reason to punish those lawyers. I think that's fundamental to the integrity and health of our judicial system. So I think judges ought to at a minimum be able to speak about uh those particular challenges and even do so in a way that I think somebody who's paying attention would understand it probably relates to current events um without making an explicitly partisan back and forth between a judge and and and the president of the United States, which I don't think serves either either one of their interests.

SPEAKER_00 30:46

Yeah. Well judge thank you so much for joining us today it was such a pleasure to to get to know you to talk about your beautiful state uh and some of the the different legal uh legal background um that you have and and all the ways that make your your state so interesting uh to us mainlanders um but thank you for joining us i i look forward to more of these conversations and of course thank you for your work um with the alliance uh i know we'll be hearing more from you and your colleagues in the coming months as that grows thank you so much appreciate it and i appreciate what you've done with this series and appreciate the opportunity to being able to share a little bit about my own journey and about the work being done by my colleagues uh here in Hawaii and across the nation in support of our Constitution so thank you so much my pleasure we appreciate you guys thank you so much again for joining us on Keepers of our Republic don't forget to like and follow us and I will see you next week for another one of these conversations if you like this episode please share it on social media and tell your friends it's the best way for folks to find out about us.

SPEAKER_01 31:46

I hope you'll agree that our guest is indeed a keeper of the republic. If you want to learn more about how you can help keep our republic stop on over to our website keeparrepublic.org