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.

RGK

*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.

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.

RGK

*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.

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