As we watch and reflect the hearings on the nomination of Judge Ketanji Brown-Jackson to be a Justice of The United States Supreme Court, there is emerging evidence despite distractions that those hearings are uniquely focused on what role judges should play in our society and how they should be selected. That is a good thing. It is long overdue for many reasons, including, in my view, the fact that the focus, procedures and protocols accompanying the Supreme Court nomination process changed around 40 years ago and not for the better.
Up until 40 years ago, the focus of these hearings was always on the prospective judge’s “qualifications”, i.e., his or her credentials and reputation. In 1976, the nomination of Judge Thurgood Marshall, followed in 1981 by 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. Unfortunately, that has now degenerated into attempts by U.S. Senators who know what they are doing to engage in character assassination for purely political and fundraising purposes. 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.
Nevertheless, the Confirmation of Judge Brown-Jackson could be and perhaps still can be our chance to do so. The Judge, herself, addressed the issue in her “Opening Statement” by stating, “I know my role as a judge is a limited one – that the Constitution empowers me only to decide cases and controversies that are properly presented.” However, on the second day of her hearing, some U.S. Senators asked questions and pretended to expect answers to questions which they had to know were not, and could not, ever be “properly” presented to The Supreme Court and chose by their comments and occasionally questions to attempt to either demonize or sanctify the applicant. That was compounded on the third day of her hearing, by not even giving the judicial applicant the chance to answer the inappropriate questions being asked without interruption. In other words, these U.S. Senators, all of whom happen to be ivy league college and law school graduates, were rude and obnoxious in addressing Judge Brown-Jackson in a way that they, themselves, would never tolerate.
I actually look forward to the discussion of the role of a judge in our society because I remember a little over 32 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. This comparison seems particularly poignant today as we witness a hearing on the confirmation of a Supreme Court justice while another “most cruel, most insane and despicable chapter in the long history of the human race unfolds in The Ukraine.
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 I watched Judge Ketanji Brown-Jackson make her Opening Statement unprompted and yet persistent, I couldn’t help but compare her promise that she would be an “independent jurist who will decide cases without fear or favor” to the German judge’s explanation of his judicial duties with the words, “we were afraid.” At that moment, I had two thoughts: (1) Maybe the judiciary is going to remain strong, and this woman’s words and composure in the face of attempts to provoke her, is evidence of that in this dangerous period in U.S. history, and (2) I wish my friend and mentor, Robert F. Sweeney was still here to witness this.
As Chief 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.” 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. I believe that it still does, and I believe Judge Ketanji Brown-Jackson is and will be one of those judges.
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. There is ample evidence of that in recent years. But so far, so good. The performance by judges, appointed by Presidents of both parties continues to stand up and stand out!
Nevertheless, we should 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 no guarantee of justice except the personality of the judge.”