As we watch and reflect the hearings on the nomination of Judge Neil Gorsuch of the 10th Circuit to be a Justice of The United States Supreme Court, there is emerging evidence that those hearings in this “Age of Trump” may uniquely focus on what role judges should play in our society and how they should be selected. That would be a good thing. It is long overdue for many reasons, including, in my view, the fact that the focus, procedures and protocols accompanying the nomination process changed around 30 years ago and not for the better.
Up until 25 years ago, the focus of these hearings was always on the prospective judge’s “qualifications”, i.e. his or her credentials and reputation. “Then in 1981 President Ronald Regan’s nomination of D.C. Court of Appeals Judge Robert Bork to the Supreme Court changed the issues discussed in these hearings to the Justice-Designate’s judicial and political ideology and philosophy. True, what the role of a judge in our society should be has historically been intertwined with what is described as judicial philosophy as well as the nominee’s “qualifications”. But the U.S. Senate and the country have heretofore never witnessed a direct debate or even a discussion in a high-profile Confirmation Hearing on what role a judge and the judicial branch of government should play in our tripartite system of government which is based on a complex system of checks and balances. The Confirmation of Judge Gorsuch may be our chance to do so.
The reason I look forward to that discussion is that I remember a little over 27 years ago, on April 22, 1990, when I was serving as Administrative Judge of the District Court for Prince George’s County, my then boss, friend, mentor and ultimately inspiration, the first Chief Judge of the District Court of Maryland, Robert F. Sweeney, now deceased, delivered memorable remarks at the annual Yom Hashoah Lecture at Baltimore Hebrew University. His remarks entitled, In Memory of the Six Million-Where Were The Lawyers? German Justice 1935-1945 explored that very question as he compared the American “governmental plan” which he noted will “protect us from the madness” of a holocaust supervised and directed by the government if we preserve it to the German government which allowed this “most cruel” most insane and most despicable chapter in the long history of the human race” to occur.
In preparing those remarks, Judge Sweeney recalled that he viewed once again the film “Judgement at Nuremberg”. In that film, Spencer Tracy, as an American Judge, presided over a tribunal before which four German Judges were standing trial for crimes against humanity committed in the performance of their duties. One of the judges attempted to justify his crimes by saying “I followed the concept that I believed to be the highest in my profession – to sacrifice one’s own sense of justice to the authority of the legal order – to ask only what the law is – not whether it is also justice.”
Doesn’t that last precept of Hitler’s Nazi German justice “to ask only what the law is – not whether it is also justice” sound eerily familiar? Aren’t judges being admonished by authoritative voices on the right to do that even now? Chief Judge Sweeney explored what it meant then and now in his remarks when he recalled a conversation that he had with a German Judge visiting the U.S. in 1981. “Where in this long twelve year span (1933-1945) was the force of law? Where were the challenges to Hitler’s abuse of basic human rights? Where were the Judges/Where were the Lawyers? Judge Sweeney asked his German colleague.
The German Judge replied, “We did not know of the death camps.” “You knew of the concentration camps and before that you knew of the disbarment of Jewish lawyers, the unfrocking of Jewish Judges. You knew of the confiscation of Jewish property. You knew the whole world knew of Crystal Night. You knew of the laws and the decrees that sought to dehumanize the Jews – Why did you do nothing?” Robert Sweeney persistently countered.
“You do not understand,” said the German Judge repeatedly in response to Judge Sweeney’s persistent inquiries. “We were afraid – we were not a people with a tradition of challenging authority.” The German Judge described a legal and political culture at that time in history which was very different than ours then and hopefully now and forever.
As Judge Sweeney later noted in his remarks about 12 years earlier, he had begun “to read in earnest” perhaps as a result of his work on then Governor Harry Hughes’ Task Force on Violence and Extremism, in an effort to “understand how in a supposedly civilized society, a death machine could be put into place that would eventually destroy methodically, dispassionately – six million people – men and women and a million children.”
The answer he discovered was that “despite constitutional rhetoric to the contrary, the German legal system throughout the life of the German nation, not just under Hitler, bore no resemblance to the American Judicial system and never really served as a part of a system of checks and balances” as described in my previous column. So, too, for German judges and German lawyers in that era, for as Judge Sweeney noted perhaps a piece of the puzzle is to understand that a nation that does not challenge authority, does not produce judges and lawyers like Robert F. Sweeney and others serving in our country and our state now and in our history. Hopefully, that includes Neil Gorsuch.
In any case, Judge Sweeney’s study and remarks, as well as history itself, teaches us that the attitudes of lawyers, legislators, and judges who are afraid or timid in the face of executive or legislative branch officials and actions for cultural legal or political reasons should be a source of apprehension. They can create a nightmare as they did in Nazi Germany and since then in Europe, Asia, and Africa on more than one occasion. The USA is not immune.
We should, therefore, be on guard when shrill voices whether they are on social media, cable television, the internet or in the U.S. Senate seek deny a judge’s right or perhaps duty to recognize as Justice Benjamin Cardozo did in his book “The Nature of the Judicial Process” that “the final cause of the law is the welfare of society.” We should also recognize as the political scientist and legal scholar, Eugene Ehrlich pointed out that “in the great public challenge which accompanies the life of a judge is that in many, if not most cases, there is not guarantee of justice except the personality of the judge.”