Jackson List: Hugo L. Black, Born February 27, 1886

This post, including a photograph of Robert Jackson and Senator Hugo Black in the 1930s, now is on the Jackson List archive site in “book look” PDF file form.

Jackson List: A Great Jurist Gone, A Great Seat Now Sadly Empty

This post, including photographs of Justice Jackson’s and Justice Scalia’s seats on the Supreme Court bench, shrouded in black following their respective deaths in 1954 and 2016, now is on the Jackson List archive site in “book look” PDF file form.

President Bush’s 1990 Appointment of Justice David Souter

A blog post by Anton Piatigorsky caught my eye.  It repeats, in part, the fairly widespread belief that when Justice William J. Brennan, a leading, long-serving liberal justice, retired from the Supreme Court in 1990, President George H.W. Bush looked to replace Brennan with a stealth arch-conservative.  Former Governor John Sununu, from New Hampshire and then Bush’s White House chief of staff, has said as much.  And, the belief continues, the eventual Bush nominee, then-Judge David Souter, also of New Hampshire, turned out to be a huge disappointment if not a traitor to how he presented himself to the president and why he (Souter) was nominated.

I don’t think that holds up.  For example, I don’t think that President Bush ever said that that’s what he sought in Souter.  I also don’t think that there is evidence that that is the vetting and assessment of Souter that occurred at the president’s level.

What Bush was seeking was, by all accounts, a problem-free, no paper trail, quality, Republican-type nominee—who, yes, as a replacement for Justice Brennan, almost by definition had the potential to shift the Supreme Court rightward.

Tinsley Yarborough describes in his biography of Justice Souter (click here) how Sen. Warren Rudman of New Hampshire, Souter’s old boss and close friend and also a friend to Sununu and President Bush, was Souter’s principal recommender and really the cause of his nomination.  Sen. Rudman was a Republican but not of the slash/burn type; in fact, in many instances he was quite moderate and non-partisan.

Bush Rudman Souter

As Yarborough recounts, Rudman suggested the Souter nomination to Sununu and Bush and it all rolled quickly from there, including that no one ever vetted Souter for or had a basis to determine that he would be the determined anti-Brennan.  Based on the historical record (such as we can see it), while many on the farther right were disappointed in the jurist that Justice Souter turned out to be, I’m skeptical that President Bush is or that the late Senator Rudman was in that group.  And I’m very skeptical that they would have a basis, given how Souter was vetted and picked, to feel that way.

In picking Justice Souter, President Bush went for huge smarts, relevant experience and no paper trail.  He wanted a problem-free nominee and he got him.  Bush never asked litmus test questions—which Souter would have refused to answer anyway.

Please get her to the polls!

Here is a CNN report on Clarina (“Mimi”) Hudon of Manchester, New Hampshire.  Born in 1905, she now is age 110.  She is believed to be the oldest person in the state.

If Mrs. Hudon had been born a little earlier, she would not have been able to vote when she reached adulthood. But when she was fifteen years old, the 19th Amendment to the U.S. Constitution, giving women the vote, was ratified.  In 1928, she voted in her first presidential election, casting her vote for the Democrat, New York governor Al Smith.

Mrs. Hudon knows of Hillary Clinton.  And now she’s heard of Bernie Sanders.

Some New Hampshire official should make it possible for her to vote next Tuesday, for one of them or for whomever.

What Did/Would Chief Justice Rehnquist Think of Ted Cruz?

Ted Cruz, after great success as a Harvard Law School student, became a law clerk to two federal judges.  During 1995-1996, Cruz was a clerk to Judge J. Michael Luttig of the United States Court of Appeals for the Fourth Circuit.  During 1996-1997, Cruz clerked at the U.S. Supreme Court for the Chief Justice, William H. Rehnquist.

rehnquisttedcruz

It’s of course Ouija Board stuff to wonder what Chief Justice Rehnquist would think today about Senator Cruz as he runs for president.  Rehnquist died in September 2005, when Cruz was the appointed Solicitor General of Texas.  He argued cases regularly, skillfully before the Rehnquist Court.  But I think that no one then was imagining Ted Cruz as a serious presidential candidate, or at least not the one that he is now in his speeches, debates and issue positions.

As a starting point, what did Chief Justice Rehnquist think about Ted Cruz as a person, in his clerkship year and thereafter?

Some might have direct knowledge, but that has not been shared.

Some indications might exist on paper or other media, but they have not surfaced.

Some who knew Rehnquist well could venture their educated guesses, but I don’t know that any has.

I knew Chief Justice Rehnquist only a little bit.  I interviewed and interacted with the Chief Justice a couple of times in 2003, when he generously met with me to discuss Justice Robert H. Jackson, whom Rehnquist had served as a Supreme Court law clerk during 1952-1953.

My guess is that the Chief Justice Rehnquist I met would not have thought well of the Ted Cruz now running for president.  Rehnquist in 2003 was too many things that Cruz seems not to be.  Rehnquist was mellow, relaxed and not judgmental.  He was reflective, including about himself as a law clerk and later.  He had some strong views, of course, but he laughed at extreme partisanship and made fun people who demonized others.  He was kindly.

I suspect that Ted Cruz knows that his candidate persona today is not the late-life Rehnquist type (and maybe that he was not a beloved Rehnquist law clerk).  The evidence is Cruz’s understanding of the Chief he does not resemble—Rehnquist was, Cruz wrote in his memoir last year (click here for an excerpt on his Rehnquist clerkship), “very much a Midwesterner.  He was polite, low-key and modest.”

Chief Justice Rehnquist loved to make small bets, including on politics.  I bet that Rehnquist wouldn’t hesitate to vote against Ted Cruz in a 2016 Republican primary.  I think that Rehnquist would agonize a bit about Jeb Bush, and then he’d vote for John Kasich.

Jackson List: Four Freedoms, Newly Alive at Seventy-Five

Today marks the 75th anniversary of President Franklin D. Roosevelt’s January 6, 1941, State of the Union address—the “Four Freedoms” speech.

In a Jackson List post five years ago (click here), I described the occasion and the speech—and the presence, in the first row of the House chamber, of Attorney General Robert H. Jackson.

I continue to recommend the following resource links, all on the Franklin D. Roosevelt Presidential Library and Museum website:

In addition, or first, please watch this newly enhanced, audio-synced, High Definition video of that key passage in the speech:  https://www.youtube.com/watch?v=qrNDwyj4u1w.

In this post, Paul M. Sparrow, Director of the FDR Library, describes the creation of this new treasure:   http://fdr.blogs.archives.gov/2016/01/06/four_freedoms/.

Jackson List: Holidays & Memories

Thank you all, the past year’s many newcomers and all of the past years’ veterans.  I truly appreciate your interest in the Jackson List, your “forwards,” your recruitments of new subscribers, and your comments.

For your reading in this season, here are some previous Jackson List posts that relate to the holidays:

  • “Heartfelt Words, Good Will & Wishes True (1913) (click here)
  • “Christmas Cards from Nuremberg (November 1945)” (click here)
  • “Lighting the First Candle:  Holocaust Film and Chanukah at Nuremberg, 1945” (click here)
  • “Holiday Note, Chief to Staff (December 1945)” (click here)
  • “Jackson in the Holiday Season” (click here)
  • “Christmas Celebration, Nuremberg, 1945” (click here)
  • “Jackson on Holiday in Athens, December 22, 1945” (click here)
  • “Supreme Court at Christmastime (1951)” (click here)

These and many more posts are on the Jackson List archive site, which is word- and phrase-searchable:  http://thejacksonlist.com/.   (Thank you, Michael Zhang.)

Lindenstrasse Christmas party

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On this date in 1945, Justice Jackson, as United States chief of counsel in Nuremberg, was one month into trial work before the International Military Tribunal (IMT), prosecuting the principal Nazi war criminals.

Last month, on the 70th anniversary of the trial’s commencement, I had the honor of participating in the City of Nuremberg’s commemoration event, held in Palace of Justice Courtroom 600, the trial site.  After delivering an introductory lecture, I moderated a conversation with three men who worked in the IMT trial process:

  • Yves Beigbeder, then an assistant to the French judge;
  • Father Moritz Fuchs, then the bodyguard of Justice Jackson; and
  • George Sakheim, then a U.S. interpreter and translator.

For streaming video of the event, click here.  After welcoming remarks (in German) from Nuremberg’s Lord Mayor and then the Vice President of the Nuremberg Higher Regional Court, my lecture (in English) begins at 16:45, followed by the group conversation (in English) beginning at 30:40.

The conversation was and is, thanks to these great men and their memories, quite wonderful and very powerful.  I encourage you, in a quiet time during your (I hope) holiday break, to view it.  It shines new light on the enduring importance of the international decision to conduct a Nuremberg trial as the decision makers and participants of 1945 and 1946 did; on the principles that they followed and advanced; on the evidentiary proof that they gathered and presented, for the case and for history; and on how all of that is a young, growing, hopeful part of our time and the years ahead.

Jackson List: The Nuremberg Trial Begins (1945)

This post now is on the Jackson List archive site in “book look” PDF file form.

Jackson List: James B. Donovan, Before the “Bridge of Spies”

This post now is on the Jackson List archive site in “book look” PDF file form.

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New Bibliography on the Nuremberg Trials

Congratulations and thanks to Professor Kevin Jon Heller and his colleague Catherine E. Gascoigne for producing, just in time for the 70th anniversary of the commencement of the International Military Tribunal (IMT) proceedings at Nuremberg, a new bibliography on the Nuremberg Trials of Nazi war criminals.

Yes, that’s plural—trials.  The IMT, commencing in Fall 1945 and concluding in Fall 1946, was the one and only international Nuremberg trial.  Thereafter, the United States, with Nuremberg in the center of its military occupation zone in what had been Nazi Germany, conducted twelve additional trials there, before Nuremberg Military Tribunals (NMTs), between Fall 1946 and Spring 1949.

A great virtue of the Heller/Gascoigne bibliography is that it lists and also describes in narrative, in fifteen concise pages, leading book-length publications (i.e., books and long articles) on both the IMT and the under-studied NMTs.

The IMT adjudicated the guilt of twenty-two surviving Nazi leaders plus six organizations.  It was the four-nation trial, prosecuted and judged jointly by U.S., U.K., U.S.S.R. and French representatives.  U.S. Supreme Court Justice Robert H. Jackson served as U.S. chief prosecutor.  The defendants included, to name one handful of the nineteen who were convicted, Hermann Goering, Rudolf Hess, Joachim von Ribbentrop, Albert Speer and Julius Streicher.

The U.S.-only NMTs, often called the “subsequent proceedings” because they followed the IMT, adjudicated the criminal guilt of 177 additional individuals.  General Telford Taylor, previously a senior member of Jackson’s U.S. team before the IMT, served as chief prosecutor.  Each case concerned persons who had worked together in an important sector of the Third Reich.  These cases came to be known by short names of either a leading defendant or the occupational sector:  The Medical Case; The Milch Case; The Justice Case; The Pohl Case; The Flick Case; The I.G. Farben Case; The Hostage Case; The Reich Main Security Office (RuSHA) Case; The Einsatzgruppen Case; The Krupp Case; The Ministries Case; and The High Command Case.

(Unlike that list, which I arranged by the numbers (1-12) that Taylor and team assigned to the cases, Heller and Gascoigne organize NMT case-specific scholarship in alphabetized case-name order.  Neither listing method fully captures the sequence and the various overlaps of the twelve trials; for that, the best book, listed modestly in the new bibliography, is Heller’s own The Nuremberg Military Tribunals and the Origins of International Criminal Law (2011).)

This new bibliography is published in the Oxford Bibliographies online series.  That means it is only a click away but, alas, it isn’t free/it is behind a paywall.  I expect that leading libraries subscribe to the Oxford series, so teachers, researchers and students should have relatively easy access.  And anyone else can buy in, of course.

Access to this bibliography, however obtained, is a good development.  It is a fine guide to important resources on cases that are permanently significant, for how they occurred and what they uncovered, and as models and lessons for our time and the future.

(Hat tip:  Kevin Heller himself, here on Opinio Juris.)