International Judicial Monitor
Published by the International judicial Academy of the International Law Institute, Washington, D.C.
with circulation assistance from the American Society of International Law
Summer 2017 Issue

EDITORIAL

 

The Need for Speaking Out

Dr. James G. Apple

By: James G. Apple, Editor-in-Chief, International Judicial Monitor

I subscribe to several U.S. magazines, and receive others as a result of memberships in organizations. I find them valuable, as they fill the gap between daily journalism offerings found in newspapers, and books which come along months or years after a particular event or movement. This year to date I have received two magazines each of which contained an article that is especially thought provoking to me as a lawyer and writer about courts, judges and international law. One of the articles noted that it was being written “in the summer of our discontent,” a reference to the many political and social controversies that have been provoked by the President of the United States and his followers.

Both of these articles were written by women. One is Dean of the Yale Law School; the other was at the time of the article's publication in April of this year, President of the American Bar Association. I touch on this fact of authorship parenthetically, not in the sense of indicating surprise that women could express the kind of thoughts and opinions given in the articles, but to reveal once again that women in the United States are continuing to break the glass ceilings that have prevented or hampered them in their quest for leadership roles for too long, and to note the source of different perspectives about the controversies sparked by commentary coming out of the White House.

The article by Dean Heather Gerken of the Yale Law School published in a July issue of Time magazine was titled: “One campus arena where free speech is not up for debate: law schools.” It was written in response to two recent incidents that had occurred at U.S. colleges, Middlebury and Claremont McKenna “where demonstrations disrupted controversial speakers.” Dean Gerken observed that Yale Law School had hosted several times in the past few years the same speaker that had caused the disruptions and interference with the speaker at Middlebury College, and that the Law School had done so without disruptions. Dean Gerken commented:

There may be a reason why law students haven't resorted to the extreme tactics we've seen on college campuses: their training. Law school conditions you to know the difference between righteousness and self-righteousness. That’s why lawyers know how to go to war without turning the other side into an enemy. People love to tell lawyer jokes, but maybe it is time for the rest of the country [and the rest of the world] to take a lesson from the profession they love to hate.

Dean Gerken went on to discuss further the effects of law school training on law students, and how those lessons carry out into the world beyond academe. She notes that Thurgood Marshall, before he became a justice of the U.S. Supreme Court, traveled throughout the southern states in the U.S. defending African Americans in criminal cases in courthouses without provoking the kinds of oral and physical violence that would have been displayed in other venues. That experience demonstrates the “ritual of respect” that the law carries with it.

The second article to which my attention was directed was written by Linda A. Klein, who is now the immediate Past President of the American Bar Association (a private bar association that is the largest bar association in the U.S.). President Klein’s message to the Association’s membership in the April, 2017 issue of the ABA Journal was a plea for members to join in the celebration on May 1 of Law Day throughout the nation. The plea was specific; this year’s celebration was directed to honoring the 14th Amendment to the Constitution of the United States, its  role in protecting American democracy, and its importance “in securing and protecting so many of the rights we enjoy today.”

There was no mention in her article about the turmoil generated by the new officials in the White House and other agencies of the executive branch of the United States government. However, the focus on the 14th Amendment to the Constitution of the United States provided a clear message to U.S. political leaders that the 14th amendment “was primarily intended to establish equal civil rights for former slaves,” an issue that is again being raised in the current U.S. political discourse.

 

President Klein was right in asking the membership in her bar association to  promote the 14th Amendment  and the rights that it helps protect in Law Day events in their communities. She concluded her article in the last sentence: “ Only through an understanding and appreciation of our rights can we and our fellow citizens maintain the rule of law – the glue that binds our great nation together.”

The American Bar Association and other bar associations can also join together to combat two other threats to the rule of law in the U.S.  The first is the turning away by government officials and political leaders of the need for truth and truth telling in the nation’s political discourse. The second is the rise in the U.S. of Nazism and the principles of National Socialism which so plagued the world in the last century.

There is also a need for judges to speak out in favor of the rule of law, equal protection of the law, and protection to all citizens of their constitutional rights and all that such a commitments entail – not only in opinion writing in cases where issues of inequality and racism are involved, but also in speaking out at bar meetings and other public forums about these aspects of the nation’s commitment to the rule of law.

Another need for judges' voices is against the rising tide of National Socialism and Nazism in parts of the United States, so clearly demonstrated in the events in Charlottesville, Virginia in September of this year, where a large group of white supremacists were demonstrating against the removal of a statue of Robert E. Lee, a Confederate general in American's Civil War (1861-1865). The mob carried flags with swastika's on them in colors of the German Third Reich, yelled Nazi-like slogans with the Nazi salute ("Hail Trump" with right arm extended and pointed upward) and anti-semetic and racial slurs.. They even carried lighted torches in a night-time march to the campus of the University of Virginia, again reminiscent of events in Nazi Germany. The evening culminated in the deaths of three persons, one a young woman who was protesting the marchers and was killed when one of the white supremicists drove a car into the crowd of protestors, and two police officers who were conducting surveillance in a helicopter which crashed.

In some areas of the United States the activities of the marchers were lauded rather than condemned.

American judges need to be reminded of the Judges' Trials that were part of the Nuremberg trials of high Nazi officials. In these trials German (Nazi) judges were put on trial for their failures to act against Nazi racial laws and other manifestations of the sickness of National Socialism. The 16 judges were charged with crimes against humanity for their indifference to or active support of that sickness. As explained in one encyclopedic account:

The "Judges Trial" focused on 16 judges and prosecutors who served before and during the Nazi regime in Germany, and who either passively, actively, or in a combination of both, embraced and enforced laws that led to judicial acts of sexual sterilization and to the imprisonment and execution of people for their religions, racial or ethic identities, political beliefs and physical handicaps or disabilities.

Ten of the 16 judges in the Judges Trials were found guilty of crimes against humanity and were imprisoned. The other six either committed suicide while in custody or died before trial.

The matters contained in the Judges Trials formed the bases of the award winning 1961 film, "Judgment at Nuremberg," which clearly showed the judges' complacency in the face of abhorrent racial and other laws and illegal actions of arrest and execution. In the coming of National Socialism in Germany, members of learned professions, including judges never spoke out against the atrocities of that political movement, or did not speak out loudly. A rising question in the United States is whether judges and lawyers and those connected with court systems will speak out against a growing American version of National Socialism before it is too late. German judges and lawyers did not speak out in the 1930s. Will American judges and lawyers speak out in the second decade of the new century?

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© 2017 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
IJM welcomes comments, suggestions, and submissions.
Please contact the IJM editor at ijaworld@verizon.net.