Like the German Judge Lothar Kreyssig, a Czech lawyer by the name of Dr. Egon Schwelb was a hero too

Judge Frank E. Schwelb of the D.C. Court of Appeals (the equivalent of the Supreme Court of the District of Columbia) recently passed away. Advocates like Elaine Mittleman who argued cases before Judge Schwelb say that he was “wicked smart . . . with a wry sense of humor.” Elaine also noted that “When I thought again of him, I saw some similarities with . . . Chief Judge Kozinski.” Judge Schwelb was a Czech by birth*, and Judge Kozinski is a Romanian by birth. Brilliant, brilliant men.

We should mourn the passing of this interesting man who came to this country (and Yale and Harvard) as a young child chased out of his homeland with his parents by the Nazis. His is a story of how immigrants have enriched, and continue to enrich, our society and the legal profession in particular. Rest easily Judge Schwelb. See his Washington Post obituary here.

While I am sure that his father was proud of Judge Schwelb, that pride was reciprocated by the son for his father. And, it is that story–the story of Dr. Egon Schwelb–that I wish to highlight today. Sometime around 2006, Judge Schwelb gave a fascinating account of his father to the Czechoslovak Government in Exile Research Society. See here.

Told in the Judge’s own words, here is the story of Dr. Egon Schwelb:

  • My father, Dr. Egon Schwelb, was a prominent Social Democratic attorney who handled a lot of what might now be termed civil liberties cases, and who represented, among other clients, anti-Nazi German refugees who fled to Prague after Hitler and the Nazis came to power in Germany. On March 15, 1939, German troops goose-stepped into Prague — I still have some slight memory of that — and on the following day my dad was taken into custody and held at the Pankrac prison.
  • In May, 1939, my father was released, though I have never been able to find out exactly why. My parents were able to obtain British visas and an exit permit, and on August 12, 1939, we travelled by train from Prague through Nazi Germany to Holland. I know that my parents were afraid that we might be taken off the train before we crossed the Dutch border, for events were not very predictable at that time, but cross we did. We travelled in a Dutch ship from the Hook of Holland to Harwich, arriving in Britain on August 13, 1939. The war, as you know, began on September 1, when the Nazis invaded Poland, so we made it by less that three weeks. Those members of our family who did not manage to leave the country, including my mother’s younger sister, perished in the Holocaust. My parents were both of Jewish origin, though not practicing Jews.
  • We spent the first few weeks of our stay in Britain in refugee hostels in Surrey. In late 1939 or early 1940, my parents obtained a flat in Mill Hill, in the northwestern part of London. We were in London during the Blitz, and I collected shrapnel splinters after air raids. Eventually, President Benes named my father to the Legal Council (Pravni Rada) of the government-in-exile. My dad served in that capacity until the end of the war. During his service as a legal adviser to the Benes government, my father sensed that postwar Czechoslovakia would not be a democratic country for very long, and (much to my dismay at the time) my parents decided not to go back.
  • After serving in the United Nations War Crimes Commission from 1945 to 1947, my father was named Deputy Director of the Human Rights Division of the U.N. in 1947.
  • Our family came to the United States in 1947, and lived here ever since. My dad had a very distinguished career and earned the nickname Mr. Human Rights. In 1979, shortly after his death, he posthumously received the Dag Hammarskjold Award for his contributions to peace and human rights. He died just a few months before I was named by President Carter to my first judgeship.

Like the German Judge Lothar Kreyssig, the Czech lawyer, Dr. Egon Schwelb, was a hero too. Our profession should be proud to count these men among us. We can only hope to emulate them in some small measure. But try we must.


*In the “small world department,” my son-in-law Karel holds dual Czech and Canadian citizenship and speaks Czech fluently. With daughter Lisa and their children, Karel teaches in China. Keller’s wife Stacey, residing with Keller and Fletcher in Australia, is also of Czech origin. Her maiden name is the same as Karel’s last name. My late wife and I lived in Wilbur, Nebraska when I attended law school. Wilbur is the “Czech Capital” of Nebraska. We lived in that small community so that my late wife could teach high school French to the Czech kids. By the way, if you have not tasted Kolach, a Czech pastry, you have missed one of the essential joys of life.

9 responses

  1. These threads all intersect at one point: Power makes cowards of us all.

    Judge Kopf writes that “the rule of law in the hands of intellectually honest judges is sufficient to combat barbarity.” And therein lies the problem: America is plagued with a dearth of intellectually honest judges.

    Defendergirl writes: “The only process of which I am aware is to file a complaint with the Circuit, in which you must identify yourself and thus potentially place your client’s interests in jeopardy. … If you filed a mandamus, you risked the judge’s ire being directed toward the client. So we waited. Members of the bar knew there were issues for years, but did nothing for fear of harming clients….” If you speak out like Lothar Kreyssig, you risk the wrath of the baby Fuhrers in black robes. So you remain silent.

    Without “intellectually honest judges” to administer it, there can be no rule of law. Judges often betray their oaths and shirk their duties with total impunity. The standard of “moral conduct” in our federal judiciary is so low that a judge soliciting a bribe from an attorney whose firm appears before him regularly is “a close call,” and like their shameful counterparts in the Catholic Church, their colleagues care more about maintaining the facade that the courts have a good reputation than ensuring that their colleagues do something to earn one.

    I admire Judge Kozinski. There aren’t many judges I can say that about. Unlike Schwelb, he was old enough to remember the iron fist of oppression. And whereas his opinions show that he has never forgotten, the younger Schwelb was for the most part a moral coward. What may go down in history as Alex Kozinski’s greatest indictment (in a dissent, of course) bears repeating:

    “Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that “speech, or … the press” also means the Internet, see Reno v. ACLU, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), and that “persons, houses, papers, and effects” also means public telephone booths, see Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases — or even the white spaces between lines of constitutional text. See, e.g., Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir.1996) (en banc), rev’d sub nom. Washington v. Glucksberg, 521 U.S. 702, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

    It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences.

    The above, of course, is the intellectual dishonesty of which I speak.

    Egon Schwelb. Jan Karski. Lothar Kreyssig. Sometimes, the stench of power and its inevitable abuse pushes us to the point that we can no longer reconcile it with our humanity and in that, we find greatness. But Frank Schwelb is no Dr. Egon Schwelb.

    Alex Kozinski, I would mourn. But not Frank Schwelb.

  2. I’m offended by the ad hominem attack on Judge Schwelb. What evidence for your accusations? I can, I suppose, grant you leave to indict the judiciary without specifics, although they would surely strengthen your position, but to trash the memory of a specific person without providing facts to back you up is repellent.

  3. CA Jail4Judges: We get it. You don’t like judges.

    Now please stop hijacking all the comment threads with long diatribes that are only remotely related to the actual post you’re commenting on. You’re not contributing to the discourse, nor are you helping your cause when you do. All you’re really doing making it harder to enjoy this otherwise wonderful site.

  4. CA Jail4Judges,

    Please read my rules. I agree with the others that it is almost time to pull the plug. So, my friend, drop the rants or face banishment. All the best.


  5. This is a very thoughtful and moving post, remembering Judge Frank E. Schwelb and his father, Dr. Egon Schwelb. We should all appreciate and be very grateful for their contributions to the legal profession.

  6. Judge:
    There can never be too much laudation of legitimate heroes. Those who spat in the face of tyranny–Judge Kreyssig and Dr. Schwelb being two examples–provide emotional fuel for the rest of us. I will never tire of reading about such people.

%d bloggers like this: