As we approach the anniversary of this country’s independence on July 4, I will exercise my “pundits privilege” by declining to engage directly in a competition for your attention and allegiance with either Mitt Romney singing “America the Beautiful” and dramatically reciting the Declaration of Independence or President Obama, a former Constitutional Law Professor analyzing the Constitution for a number of different and distinguished audiences including the American Catholic Bishops, the Congress of the United States and Glenn Beck. Instead, I will use my monthly space in this newspaper to highlight some thoughts of a far more recent, but only slightly less profound vintage. They are the words of the former and now deceased Chief Judge of the District Court of Maryland, Robert F. Sweeney, a friend and mentor of mine who is sorely missed.
These remarks were presented as part of the commencement address to the University of Baltimore School of Law in 1989. They are, in my opinion, as pointed and poignant, if not more so, today than they were then. In that forum at the University of Baltimore Law School, on a clear sunny day, Judge Sweeney illustrated by verbally drawing what he referred to as a “Tragic Contrast” how important lawyers and judges in our society can be in protecting our liberty, as well as protecting us from the darker sides of our own human nature – both when they act as they should and when they don’t. The compelling message he delivered to all of us who have been blessed with being able to receive a legal education, as well as the freedom and responsibility to use to use it to benefit society is that sometimes it take courage to do so and when that courage fails, devastating consequences can result which he eloquently described as follows:
“A few years ago, I was among those invited to
attend the dedication of the Memorial to Holocaust
Victims in the heart of Baltimore City.
I stood there, on a Sunday afternoon, in the shadows
of that stark and somber monument-surrounded by
many who were the Children of those who died in those indescribable death camps, whose names are chiseled into
the solid stone-Buchenwald, Dachau, Bergan/Delsen
and a dozen more, and I wondered (as we all must wonder)
how it happened that in a supposedly civilized society a
machine could be created that would, over a period
of years, simply annihilate the lives of six million people.
men and women and children (and, God forgive them) little
babies.
And I wondered further, where were the decent and fair
people, who should have cried out in horror and rage at
the beginning of this devil’s work?
Where were the sane in this cesspool of insanity?
Where were the churches, the priests and ministers?
Where were the lawyers?
And that last question became an obsession, and I sought,
for years, to find an answer. How did the legal system of that
country permit this depravity?
And I read a dozen books, talked to historians and to
survivors, to Aryan Germans, to Rabbis, and finally, a
few years ago, to a visiting German judge. ‘Where were
the judges and lawyers’, I asked?
“We did not know,” he said. “You must have known,” I
replied. “You knew of the disbarment of Jewish lawyers,”
and the unfrocking of Jewish judges and your Bar Association
passed a resolution of praise for these outrages.
“You knew, the whole world knew, of Crystal Night. You
knew of the series of laws and decrees that dehumanized the
Jews, confiscated their property, consigned them to concentration
camps.”
“But we were afraid,” he said. And I replied that, “Had you
condemned the first outrage, you might have rallied public
support, and your numbers might have protected you, and your
might have saved six million lives, or one, or your own.”
And lastly he said, “We were not a people with a tradition
of challenging authority.”
And therein, my fellow lawyers, therein lies the core of my
respect for the American lawyer, the American legal system
for our profession.
We have a tradition of challenging authority. We have a
tradition of protesting injustice. We have a tradition of
saying to government, you cannot do this. It is wrong. It
is illegal. It is immoral.
We cannot escape the shame that we inculcated into our basic governmental charter, the American Constitution, the unbelievable degrading practice of human slavery. But from our beginning days,
there were American lawyers who challenged that evil, who persisted, even through the evasion of the Dred Scott decision until during a
bitter and bloody war, a simple Illinois lawyer named Lincoln abolished that evil with a legally suspect but morally resounding Emancipation Proclamation.
And 90 years later, an American lawyer named Thurgood Marshall
whose own monument borders the Federal Courthouse a dozen blocks
from here, led the fight that persuaded a unanimous Supreme Court<o< div=”” style=””>