Lawyers and others have spilled some ink this year in celebration of one of Western law's watershed events, the signing of the Magna Carta 800 years ago in Great Britain. In commemoration, President Barack Obama, a lawyer himself, proclaimed Law Day USA on May 1. His proclamation reminded us that America “is and always has been a nation of laws.”
Not celebrated is a law-related anniversary of another kind. Next month marks the 80th anniversary of Germany’s proclamation of the Nuremberg Laws of September 1935. These laws (and later decrees) stripped Jews of citizenship.
They proscribed new marriages and extramarital sexual relations between Jews and non-Jews. In the end, Germany promulgated almost 2,000 laws and administrative regulations that degraded and immiserated the country’s Jews. They paved the way for the Holocaust.
A depressing fact about Germany’s legal war on Jews beginning in the 1930s is the prominent role played by members of our own profession. Daniel Goldhagen, in his landmark book “Hitler’s Willing Executioners,” writes that judges and lawyers were “so eager to purge their institutions and their country of Jewish influence that they … often outran the legal mandates that the regime promulgated.” The Holocaust could not have happened without them.
For American lawyers sitting at a safe distance, it’s easy to condemn these German lawyers and judges. Honestly, however, anyone looking for disgraceful work done by American lawyers and judges down the years will find ample material, much of it in the last 100 years. One need look no further than California.
After the U.S. Supreme Court’s outlawing of racially restrictive residential zoning in 1917, California lawyers wrote grant deeds containing restrictive racial covenants that barred African-Americans and other racial minorities from owning or occupying houses in vast subdivisions of the state, particularly in Los Angeles County.
These covenants allowed homeowners to sue other neighbors who sold their homes to black families and the black families themselves for damages.
Racially restrictive covenants played a large role in contributing to residential segregation in California. Judges strictly enforced these covenants, which read like this one from a home built in 1939 in the La Jolla Hermosa development in San Diego.
“No part of said property, or any buildings thereon, shall be used or occupied by any person not belonging to the Caucasian race, either as owner, lessee, licensee, tenant, or in any other capacity than that of servant or employee.”
We don’t know the lawyer who wrote these words; his name has been forgotten. But the curt precision of his words bespeaks the same sort of training we all had in law school.
The men who enforced these laws were not monsters, but well-respected members of the bench and bar. Flowery eulogies accompanied their passings. Here is an example, from a session of the California Supreme Court held April 4, 1939, in honor of the recently departed Justice Warren Olney Jr.
“He inherited an abiding devotion to the American ideal of life and the American ideal of government … of all the qualities that made up Warren Olney’s character … the greatest was his moral courage.” He was not deterred, it was said, “by previous opinions of the court which he deemed erroneous and prejudicial to the administration of justice.”
The man of whom these lovely things were said was the same Justice Olney who ruled against a black family who challenged a racially restrictive covenant contained in the deed to their Los Angeles home, in Los Angeles Investment Co. v. Gary. (181 Cal. 680 (1919).)
Similar tribute was paid to Charles Fahy, a D.C. circuit judge whose obituary (written in 1979 by Meg Greenfield of the Washington Post) extolled his great compassion. Greenfield was describing the same Fahy who, as solicitor general, was later found to have deliberately concealed evidence from the Supreme Court in the Korematsu case, in which the court upheld the federal government’s forcible internment of over 100,000 Japanese-Americans after the attack on Pearl Harbor.
Lawyers and judges like Olney and Fahy never personally killed or injured anyone. Yet, when thinking of them, I am reminded of C.S. Lewis’ words about the sort of evil that is “conceived and ordered (moved, seconded, carried and minuted) in clean, carpeted, warmed and well-lighted offices, by quiet men with white collars and cut fingernails and smooth-shaven cheeks who do not need to raise their voices.”
I don’t mean to be such a downer. After all, for every lawyer and judge who has lent his service to the cause of violating someone’s human rights, there is at least one more who has fought on the other side, sometimes successfully. The names of Nelson Mandela, Johnnie Cochran and Morris Dees come to mind most quickly. And there are many others.
In 1995 I visited Northern Ireland with a team of lawyers investigating the case of our client Kevin Artt, an Irish refugee. I interviewed a lawyer named Rosemary Nelson. Rosemary was a young Irish solicitor. Her clients included defendants accused of violent crimes in the service of the Irish Republican Army during the Troubles.
Rosemary greeted me warmly in her office in Lurgan, a small town in Armagh, southwest of Belfast. We spent an hour or so together. I noticed the framed photographs of Rosemary’s young sons. She showed me a taunting anonymous note received by one of her incarcerated clients from anonymous Loyalists. The note menacingly threatened harm to the man's "wee brother." Rosemary herself had received death threats for her work.
Four years later, I read a news story of how Rosemary had started her car in her driveway early one afternoon. Loyalist thugs had planted a bomb in the car the night before. The bomb detonated. Rosemary died of her injuries later that evening, after being cut out of her car by first responders and suffering hours of great pain.
It is not exaggerating to say that she sacrificed her life for the legal work she did for her clients — work that she knew put her life at risk, work that she didn’t have to do.
Sometimes I think about how lawyers and judges have so often slowed, rather than advanced, the evolution of human rights. When I do, I try to remember Rosemary Nelson. She reminds me that there are some diamonds in the rough of our profession.