Like a schizophrenic who missed his dose of Haldol . . .

Like a schizophrenic who missed his dose of Haldol, I sometimes see connections between things that saner people don’t. Perhaps I am having one of those days.

Today, I want to highlight two articles in the press. I think they are connected, but maybe only at the cosmic level. You decide.

The Next Nine Years by Linda Greenhouse

Remember Chief Justice Robert’s confirmation hearing?  He uttered these famous words:

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them.

The role of an umpire and a judge is critical. They make sure everybody plays by the rules.

But it is a limited role. Nobody ever went to a ball game to see the umpire.

Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.

And judges have to have the modesty to be open in the decisional process to the considered views of their colleagues on the bench.

Quoted from Roberts: ‘My job is to call balls and strikes and not to pitch or bat,’ CNN (September 12, 2005).

In Linda Greenhouse’s piece, she raises an interesting question. What kind of an “umpire” will Chief Justice Roberts be in nine years. In raising the question, she looks back at the Chief’s tenure during the past nine years. It is a fascinating piece backed up by a knowledgable observer’s discussion of some of the big cases.

Here is my take on Greenhouse’s piece: Chief Justice Roberts may be more the good lawyer and less the pure ideologue than you might otherwise have believed. While we tend to focus on the Chief’s “umpire” analogy during his confirmation hearing and many may sneer at his suggestion, Greenhouse raises the possibility that we are missing the boat with that focus. It could be that Roberts statement about listening to his colleagues–“And judges have to have the modesty to be open in the decisional process to the considered views of their colleagues on the bench.”–was far more significant.

If you care about the Supreme Court and how a Chief Justice can shape the Court if he or she has the traits of a practical lawyer open to compromise, Ms. Greenhouse’s piece is worth your time.

Yazidi boy reunited with family in Lincoln after 4 years by Chris Dunker (slow to load–be patient)

Remember the awful game, “fire, dare and repeat?” The premise of the game is that one participant forces the other participant to contemplate some awful choice. Then, that other participant must make the choice and say the choice out loud to all those assembled. Sensitive people seldom finished that game. I was very good at the game. When I played against girls, I could almost always make them cry and drop out.

So, let’s play. Here’s my question to you: “Would you abandon your newborn child–your only child–to save yourself and your spouse from those who would surely kill you both because of your religious beliefs?”  Let me hold up a photo of the baby for you to see as you make your choice. “Yes” or “No.” For a real life version of that “game,” read Chris Dunker’s article.

The Connection?

The rule of law. Or maybe the absence of Haldol.



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.

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