Lothar Kreyssig

In my post Thinking like a federal trial judge I asserted: “You will think like a real federal trial judge if you understand that: (1) there is no justice or injustice; (2) there is only the law, and that is more than enough.”* A reader commented in response: “Sounds like a recipe for getting executed after a Nuremberg Trial.” I responded that “Denying that the job of a trial judge is to do justice does not mean that the judge lacks moral sensibilities.” I cited as an example Lothar Kreyssig. In this post, I briefly elaborate on Judge Kreyssig and his commitment to the rule of law during Hitler’s reign in Germany.

In October, 1939, the Third Reich created what came to be known as the “Action T4” program. In furtherance of what the Nazis called “racial hygiene,” Reich bureaucrats, working with doctors, were authorized to identify and kill those deemed to be “unworthy of life,” that is, institutionalized patients with “severe disabilities.” Hitler called for at least 70,000 people to be killed under this program, so doctors and officials set about meeting the Fuhrer’s quotas. Fearing domestic and international reaction, the Nazis tried to hide what was going on: they lied to patients’ families and, fore-shadowing Auschwitz, they disguised the gas chambers as showers.

Dr. Lothar Kreyssig, was a judge at the Court of Guardianship in the town of Brandenburg, on the Havel River. Since his appointment in 1928, Kreyssig’s superiors considered him to be a good judge–until he began a series of minor insubordinations such as slipping out of a ceremony in his court when a bust of Hitler was unveiled and publicly protesting the suspension of three judges who failed to follow the interpretation of “Aryan laws” favored by Nazi authorities. In 1933, Kreyssig was pressured to join the Nazi party, but refused.

Hitler, and his functionaries, had decreed that the Führer was the font of law. That is, whatever Hitler said became the law. Kreyssig was having none of it. That was definitely not the rule of law.

After an increase in the number of death certificates of his wards began to accumulate on his desk, Kreyssig came to suspect that the deaths were connected to the “mercy killing” that had begun. He reported his suspicions in a letter to Minister of Justice Franz Gürtner, dated July 8, 1940. He pilloried the Nazi’s T4 euthanasia program. He also addressed the disenfranchisement of prisoners in concentration camps, making all his arguments on German legal principles. He wrote:

What is right is what benefits the people. In the name of this frightful doctrine — as yet, uncontradicted by any guardian of rights in Germany — entire sectors of communal living are excluded from [having] rights, for example, all the concentration camps, and now, all hospitals and sanatoriums.

Kreyssig then filed a charge against Reichsleiter Philipp Bouhler for murder. He filed an injunction against the institutions in which he had housed his wards, prohibiting them from transferring the wards without his consent.

On November 13, 1940, Kreyssig was summoned by Gürtner, who laid before Kreyssig Hitler’s personal letter that had started the euthanasia program and which constituted the sole legal basis for it. Kreyssig replied, “The Führer’s word does not create a right,” clearly signifying that German law did not authorize Hitler to kill his fellow Germans. (Emphasis added.) Gürtner then told Kreyssig, “If you cannot recognise the will of the Führer as a source of law, then you cannot remain a judge.” In December 1940, Kreyssig was suspended. Efforts by the Gestapo to send him to a concentration camp failed probably because of the fear that the T4 program would be revealed. Two years later, in March 1942, Hitler forced Kreyssig to retire.

Kreyssig returned to his farm and lived there until the end of the war. Unknown to the Nazis, Kreyssig hid two Jewish women on his property till the end of the war.  

In his book, Hitler’s Justice: The Courts of the Third Reich, Ingo Muller writes of the courageous judge of Brandenburg: “No matter how hard one searches for stout-hearted men among the judges of the Third Reich, for judges who refused to serve the regime from the bench, there remains a grand total of one: Dr. Lothar Kreyssig.”**

After the war,  Kreyssig founded Action Reconciliation Service for Peace. In 1958, he said that young Germans should go to former enemy countries and to Israel to ask for forgiveness and by volunteering to do good deeds to atone for the crimes of World War II. As a result, thousands of Germans have volunteered in numerous countries through the organization that Judge Kreyssig founded. This brave man died on July 6, 1986.

In summary, while I continue to believe that doing “justice” is far beyond the abilities of even the smartest federal trial judge, I also believe that the rule of law in the hands of intellectually honest judges is sufficient to combat barbarity. Judge Lothar Kreyssig is a good example.


*If you want to understand the meaning of “justice,” I suggest you start with Otto A. Bird, The Idea of Justice, Concepts in Western Thought, Institute for Philosophical Research, Frederick A Praeger Publishers (1966). In that wonderful book, Professor Bird surveys and categorizes the various concepts of “justice.” For me: “Justice is a wider notion than that of law, inasmuch as questions of justice arise independent of questions of law.” Id. at 156.

**For information on the Nuremberg trial of German judges, and Lothar Kreyssig, the University of Missouri at Kansas City law school has a wonderful online collection. See here.

The fun of flying

I have previously written about what a pain in the butt it is to travel by air. Flying back from Hong Kong, the poor woman I observed going through customs in Chicago only to be pulled out of the line because the TSA beagle sniffed out a banana in her purse is a good example. After a snarky lecture about bringing fruit into the US of A (incidentally United Airlines offered everyone a banana on the flight to the States), and the seizure of the offending banana, the beagle and her handler, resplendent in her military outfit, strolled away with her sidearm at her hip stoney-faced but triumphant.

Guess what, that sort of nonsense is not limited to Amerika. Our son, Keller, recently visited his sister in New Mexico. She bought Keller’s little boy, Fletcher, a cowboy outfit with a toy gun and a holster. Keller dutifully packed the outfit in his checked bag, and flew off to Australia. Arriving in Sydney yesterday on his Australian passport, he was pulled out of line and questioned extensively as to why he had gun in his baggage. When he calmly explained that it was a toy as clearly shown on the x-ray machine by the orange stopper in the barrel, he offered to open his bag and show the screener.  Oh, no. This called for questioning and a search by the Australian Federal Police.

toy gunAfter the search was over, and the offending toy seized, Keller was informed never to do that again. While he was not fined or arrested, and was treated pleasantly, he was firmly informed that a record of his offense (having a toy gun in his baggage) would be made. If he ever did that again the Aussies would come down hard. When pressed to explain where it says that you can’t bring your Australian kid a toy pistol from the US, no explanation was forthcoming. Just don’t do that again, he was told.

So, Keller is apparently on a “no fly” list, sorta. He can keep himself off the list so long as he does not shop at Toys R Us. At least he was not accosted by a Beagle with an attitude.




Would you want to try a case to a jury before this federal trial judge?

The Washington Post has a detailed but generally flattering article on Senior U.S. District Judge James R. Spencer. The judge is presiding over the corruption trial of former Virginia governor Robert F. McDonnell and his wife, Maureen.

The piece in the post is entitled, McDonnell judge presides with humor and impatience. I urge you to read the article. Afterwards, let me know whether you would want to try a case to jury before Judge Spencer. I am interested in knowing whether trial judges who preside with an edge or a flair in jury cases scare trial lawyers.


Thinking like a federal trial judge

SHG has a post at Simple Justice about thinking like a lawyer. I am agnostic about Scott’s views. But his post prompted me to think about a related matter.

This is a post about thinking like a real federal trial judge. You will think like a real federal trial judge if you understand that:

  1. there is no justice or injustice;
  2. there is only the law, and that is more than enough.




Image credit: Classic FM.

Image credit: Classic FM.

Think Igor Stravinsky. Now read the following:

Reporters are agog  about a solar plant in the Mojave Desert. The plant has more than 300,000 mirrors. It seems that when birds fly through the concentrated rays of the mirrors our feathered friends ignite in midair.* Workers at the plant call them “streamers.” For more, see here and here.**


*I don’t know why, but the image of flaming birds reminds me of one of my favorite poems:

Little bird out in the snow, with busted wing, and broken toe. First I will lure thee with a piece of bread, and then I will crush your tiny head.

Anonymous student at lower middle class high school in Maumee, Ohio.

**Do you think this post requires a trigger warning for people who suffer from environmental schizophrenia?

A bench slap portends trouble in paradise

This post is about politics within the federal judiciary. It also about pecking order within the hierarchy of the federal judiciary. While I don’t care a bit about the substantive issue, the dispute I am about describe is fascinating because it has the potential of setting up a battle of judicial titans and I am a voyeur. While not in so many words, one power within the federal judiciary has publicly called out another power within the federal judiciary by essentially asking, “Who in the hell do you think you are?”

Judge John Bates is a district judge who sat in the District of Columbia. Judge Bates is highly respected by Chief Justice Roberts. The Chief put Judge Bates on the foreign surveillance court (FISA) and later selected him as the Director of the Administrative Office of the United States Courts. Judge Alex Kozinski is the Chief Judge of the Ninth Circuit, which has far more judges than any other Circuit, and as such is a member of the Judicial Conference of the United States. Under the direction of the Chief Justice, the Judicial Conference of the United States is the policy making arm of the judiciary. A district judge and the chief judge from each Circuit comprise the voting membership of the Judicial Conference. Judge Bates is the secretary to the Judicial Conference. “The Judicial Conference also supervises the Director of the Administrative Office of the U.S. Courts in the performance of his duties as the administrative officer of the courts of the United States under 28 U.S.C. § 604.” Id.

Thanks to Howard Bashman, my source for everything, I learned yesterday that:

“Chief Judge Kozinski’s ‘Serious Doubts’ About Judge Bates’s FISA Reform Letters”: Steve Vladeck has this post today at the “Just Security” blog. You can view the letter from the Ninth Circuit‘s chief judge at this link.
Posted at 09:33 AM by Howard Bashman

Here’s a brief summary of the dispute:

  • Bates sent the Chairman of the Senate Judiciary committee a letter about the USA FREEDOM Act–the surveillance reform proposal that, among other things, would create a more adversarial process within the FISA Court.  A fair reading of the letter indicates that Bates was speaking for the federal judiciary.
  • Kozinski sent the Chairman of the Senate Judiciary Committee a letter. A fair reading of the letter indicates that Kozinski does not think that Bates can speak for the federal judiciary and Kozinski makes absolutely clear that Bates does not speak for him. According to Kozinski, the Judicial Conference of the United States had not considered the issues addressed in Bates’ letter. Kozinski notes that Bates did not provide Kozinski (and presumably other members of the Judicial Conference) with copies of correspondence on this issue.
  • Bates had earlier written to Senator Diane Feinstein, Chair of the Select Committee on Intelligence, the following explaining why the Judicial Conference had not been consulted:

Traditionally, the views of the Judiciary on legislative matters are expressed through the Judicial Conference of the United States, for which I serve as Secretary. However, because the matters at issue here relate to special expertise and experience of only a small number of judges on two specialized courts, the Conference has not at this time been engaged to deliberate on them. In my capacity as Director of the Administrative Office of the United States Courts, I have responsibility for facilitating the administration of the federal courts and, furthermore, the Chief Justice of the United States has requested that I act as a liaison for the Judiciary on matters concerning the Foreign Intelligence Surveillance Act (FISA). In considering such matters, I benefit from having served as Presiding Judge of the Foreign Intelligence Surveillance Court (FISC).

One thing is clear. Bates has been “bench slapped” by Kozinski, and there is “trouble in paradise.”  Of course, feel free to select and mix your own metaphors. No matter how one expresses it, this dispute is extraordinary (and perhaps unsettling) for those who “are inside baseball.”


Once more unto the breach but briefly

There is a race to get to the Supreme Court again on the ACA. This time the question is whether covered individuals get a subsidy if they bought the insurance on an exchange created by the federal government for a state because the state elected not to do so. The issue is purely one of statutory construction. Linda Greenhouse, who is generally not my favorite commentator, has a good explanation of this race here.

Remember my post on the Hobby Lobby case?  In that post, I suggested that the Supreme Court should be more attentive to Alexander Bickel’s “passive virtues.” This most recent ACA argument–fought out now in the D.C. and Fourth Circuits–gives the Supreme Court an opportunity to live up to Bickel’s advice. Here’s how:

  • Every time a Circuit court changes the status quo–rules for the ACA opponents–the Supreme Court should stay the case.  Remember, as Bickel would, that a ruling against the ACA frustrates the will of the people as expressed by Congress, even though Congress passed the law with the narrowest of margins.
  • The Supreme Court should not take any ACA case on the federal vs state exchange issue until every Circuit court has ruled. There is no harm in waiting since a stay and the status quo would mean simply that insurance buyers would continue to get the intended subsidy and the opponents suffer nothing but the opportunity to make their statutory construction argument as quickly as they would like. There is even the possibility that the Court could avoid the question entirely if Congress, in the interim, cleared up the alleged statutory ambiguity.

Delay, delay, delay should be the mantra of the Court. Since both conservative and liberals, to their shame, now endorse the idea that law is merely politics by another name, the Court should do everything in its power to push back hard against such bilge. The world will not fall apart if the Supreme Court takes a “wait and see” attitude that lasts several years. More time to nap is almost always a good thing.


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