Author Archives: jqb

Jackson List: DOJ Antitrust Division Jackson-Nash Address, Sept. 20, 2018

Earlier this year, the Antitrust Division in the United States Department of Justice established the Jackson-Nash Address.

According to Assistant Attorney General Makan Delrahim, the goal of this lecture series is “to recognize the contributions of former Supreme Court Justice Robert H. Jackson and Nobel Laureate economist John Nash, and to honor the speaker, recognizing and celebrating the role of economics in the mission of the [Antitrust] Division.”

Robert H. Jackson headed the Antitrust Division during 1937.  As the Division explained when it announced this new lecture series, Jackson’s leadership set the stage for the expanded role of economics in antitrust, replacing vague legal standards with the “protection of competition” as the goal of antitrust law.  And Dr. John Nash’s research provides Antitrust Division economists with analytic tools necessary to protect competition.  In particular, Division economists commonly rely on Nash’s strategic theory of games and his axiomatic bargaining model to guide investigations and to help evaluate the effects of mergers, monopolization, and collusion.

On February 28, 2018, Dr. Alvin E. Roth, the McCaw Professor of Economics at Stanford University, delivered the inaugural Jackson-Nash lecture.  Professor Roth is the 2012 winner of the Nobel Prize in Economics for the theory of stable allocations and the practice of market design.

*          *          *

I am pleased to announce here that the second Jackson-Nash program, open to the public, will occur on Thursday, September 20, 2018, at 3:00 p.m. in the Great Hall at the U.S. Department of Justice, The Robert F. Kennedy Building, 950 Pennsylvania Avenue, N.W., Washington, D.C.  The program will consist of:

  • Introductory remarks by Department of Justice leadership; 
  • my historical lecture, Competition: Robert H. Jackson as Assistant Attorney General—Antitrust (January 21, 1937–March 5, 1938); and
  • an address by Dr. George A. Akerlof, University Professor at Georgetown University.  Dr. Akerlof is the 2001 winner of the Nobel Prize in Economics for analyses of markets with asymmetric information (including his well-known article “The Market for ‘Lemons’: Quality Uncertainty and the Market Mechanism” (1970).)

A reception in the Great Hall will follow the program.

Because space is limited, anyone who is interested to attend should RSVP to ATR.AAGRSVP@USDOJ.GOVGuests should enter Main Justice at the 10th Street and Constitution Avenue entrance.

*          *          *

And some Jackson history—

Robert H. Jackson became Assistant Attorney General heading the Antitrust Division at the start of President Franklin D. Roosevelt’s second term in office.  Jackson already was an Assistant Attorney General of the United States—Roosevelt had nominated him to that office and the Senate had confirmed him a year earlier, and throughout 1936 AAG Jackson headed DOJ’s Tax Division.  In January 1937, U.S. Attorney General Homer S. Cummings announced a series of personnel moves in the Department, including Jackson’s transfer to head the Antitrust Division.  (Its leader was leaving government to become a law professor.)

By January 1937, Jackson had become a nationally prominent young New Dealer.  His transfer within DOJ from Tax to Antitrust thus was news.  And that triggered a wave of congratulatory messages to him.

One telegram that was particularly meaningful to Jackson came from a friend who was, at that time, a Wall Street lawyer.  “Let me congratulate you on your opportunity for doing a fine constructive job which I know you will do,” he wrote to Jackson.  “Looking forward to seeing you.”

In that busy time, Robert Jackson happened to see the friend in person before Jackson got around to acknowledging in writing the good wishes.  But within a few weeks, Jackson wrote back to thank the friend.

They were, in their life and professional paths, fellow western New Yorkers who each had practiced law in Buffalo.  Jackson’s friend also had served in the World War—with extraordinary valor, resulting in him receiving a number of the highest U.S. military awards and becoming a national hero.

After the War, the friend served in the federal government, in Buffalo and then in Washington.  He did this ahead of Jackson—the friend was almost ten years older, and his Republican Party controlled the White House throughout the 1920s, and, yes, he was famous long before most noticed Jackson.

Jackson wrote back to his friend on February 3, 1937:

My dear Colonel Donovan, 

I am just getting to answer congratulatory messages and, in spite of the fact that a meeting with you has intervened, I want to express appreciation of your telegram. 

I take the job with no delusion about its magnitude or its difficulty at this time.  Not the least of the difficulties is that of succeeding other western New York lawyers who have handled the office with such distinction. 

With best regards and good wishes, I am 

            Sincerely yours, 

            /s/ [Robert H. Jackson]

William J. (“Wild Bill”) Donovan, as principal assistant to U.S. Attorney General John G. Sargent, had headed the Antitrust Division, among other responsibilities, from 1925 until 1929.  Donovan  later returned to government service under President Roosevelt, including, as General Donovan, to found and run the wartime Office of Strategic Services (O.S.S.).

And in May 1945, Justice Jackson, after President Truman appointed him to be the U.S. chief of counsel in the international war crimes prosecutions of surviving Nazi German leaders, recruited his old friend General Donovan to be his deputy.

During their months together in that work, which became the Nuremberg trial beginning in late 1945, Jackson and Donovan discussed many things.  One topic that was at least in the background, including as they planned and debated such things as “the Economics case” against Nazi defendants and the merits of basing criminal prosecution on documentary evidence, was their shared, formative experience of heading DOJ’s Antitrust Division.

If you are interested to walk in such footsteps, and in the kind of high ideas that motivate DOJ’s best work, please join us in the Great Hall on September 20th.

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This post was emailed to the Jackson List, a private but entirely non-selective email list that reaches many thousands of subscribers around the world. I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

A Law Faculty Candidate and His Judicial Reference (1934)

Posted over on PrawfsBlawg (thanks!), a piece on U.S. Supreme Court Justice Benjamin N. Cardozo and a lawyer who was seeking in 1934 to become a law professor.

October 4, 1934:  Justice Cardozo, wearing his Phi Beta Kappa key.

Jackson List: The World Outlaws War (1928)

For the Jackson List:

On Monday, August 27, 1928—ninety years ago today—representatives of fifteen nations, meeting in Paris, signed a treaty that outlawed war as an instrument of national policy. They committed themselves to settling disputes by peaceful means.

On behalf of France, the conference host and treaty-signer was the Minister of Foreign Affairs, Aristide Briand. On behalf of the United States, the signer was Secretary of State Frank B. Kellogg. The other signatory nations represented in Paris were the United Kingdom, Ireland, Canada, Australia, New Zealand, South Africa, India, Belgium, Poland, Czechoslovakia, Germany, Italy, and Japan.

The United States Senate subsequently ratified the treaty. Over time, many more nations joined the Pact of Paris. By early 1933, sixty-five states were parties to the treaty, which in the U.S. came to be called “Kellogg-Briand.”

* * *

This global agreement did not, of course, prevent all war. A second world war started less than a decade after the treaty. From 1939 until 1945, World War II wreaked a horrific toll in Europe and in the Pacific.

The Allied powers ultimately prevailed. They then, acting together, charged surviving leaders of the Axis powers with the crime of waging aggressive war.

In the European theater, this case was tried in Nuremberg. On November 21, 1945, U.S. Supreme Justice Robert H. Jackson, the U.S. chief prosecutor of the Nazi defendants, explained aggressive war’s illegality by invoking Kellogg-Briand as a crucial development. It was, legally, the spine of the Allied prosecution of Nazi leaders for planning and then waging wars of aggression:

The first and second Counts of the Indictment [charge the] crimes … of plotting and waging wars of aggression and wars in violation of nine treaties to which Germany was a party.

There was a time—in fact, I think the time of the first World War—when it could not have been said that war-inciting or war-making was a crime in law, however reprehensible in morals.

Of course, it was, under the law of all civilized peoples, a crime for one man with his bare knuckles to assault another. How did it come that multiplying this crime by a million, and adding firearms to bare knuckles, made it a legally innocent act? The doctrine was that one could not be regarded as criminal for committing the usual violent acts in the conduct of legitimate warfare. The age of imperialistic expansion during the 18th and 19th centuries added the foul doctrine, contrary to the teachings of early Christian and international law scholars such as Grotius, that all wars are to be regarded as legitimate wars. The sum of these two doctrines was to give war-making a complete immunity from accountability to law.

This was intolerable for an age that called itself civilized. Plain people, with their earthy common sense, revolted at such fictions and legalisms so contrary to ethical principles and demanded checks on war immunities. Statesmen and international lawyers at first cautiously responded by adopting rules of warfare designed to make the conduct of war more civilized. The effort was to set legal limits to the violence that could be done to civilian populations and to combatants as well.

The common sense of men after the first World War demanded, however, that the law’s condemnation of war reach deeper, and that the law condemn not merely uncivilized ways of waging war but also the waging in any way of uncivilized wars—wars of aggression. The world’s statesmen again went only as far as they were forced to go. Their efforts were timid and cautious and often less explicit than we might have hoped. But the 1920s did outlaw aggressive war.

The reestablishment of the principle that there are unjust wars and that unjust wars are illegal is traceable in many steps. One of the most significant is the Briand-Kellogg Pact of 1928, by which Germany, Italy, and Japan, in common with practically all nations of the world, renounced war as an instrument of national policy, bound themselves to seek the settlement of disputes only by pacific means, and condemned recourse to war for the solution of international controversies. This pact altered the legal status of a war of aggression. As Mr. Stimson, the United States Secretary of State put it in 1932, such a war “is no longer to be the source and subject of rights. It is no longer to be the principle around which the duties, the conduct, and the rights of nations revolve. It is an illegal thing…. By that very act, we have made obsolete many legal precedents and have given the legal profession the task of reexamining many of its codes and treaties.”

The Geneva Protocol of 1924 for the Pacific Settlement of International Disputes, signed by the representatives of 48 governments, declared that “a war of aggression constitutes…an international crime.” The Eighth Assembly of the League of Nations in 1927, on unanimous resolution of the representatives of 48 member nations, including Germany, declared that a war of aggression constitutes an international crime. At the Sixth Pan-American Conference of 1928, the 21 American Republics unanimously adopted a resolution stating that “war of aggression constitutes an international crime against the human species.”

A failure of these Nazis to heed or to understand the force and meaning of this evolution in the legal thought of the world is not a defense or a mitigation. If anything, it aggravates their offense and makes it the more mandatory that the law they have flouted be vindicated by juridical application to their lawless conduct. Indeed, by their own law—had they heeded any law—these principles were binding on these defendants. Article 4 of the Weimar constitution provided that: “The generally accepted rules of international law are to be considered as binding integral parts of the law of the German Reich.” Can there be any doubt that the outlawry of aggressive war was one of the “generally accepted rules of international law” in 1939?

Any resort to war—to any kind of a war—is a resort to means that are inherently criminal. War inevitably is a course of killings, assaults, deprivations of liberty, and destruction of property. An honestly defensive war is, of course, legal and saves those lawfully conducting it from criminality. But inherently criminal acts cannot be defended by showing that those who committed them were engaged in a war, when war itself is illegal. The very minimum legal consequence of the treaties making aggressive wars illegal is to strip those who incite or wage them of every defense the law ever gave, and to leave war-makers subject to judgment by the usually accepted principles of the law of crimes.

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This post was emailed to the Jackson List, a private but entirely non-selective email list that reaches many thousands of subscribers around the world. I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

Jackson List: Executive Director search, Robert H. Jackson Center

This post is a brief, very important advertisement.

The Robert H. Jackson Center (www.roberthjackson.org), located in Jamestown, New York, is searching for its next leader.  The position description is below.  Please consider applying if you are a strong prospect, and please share this in your networks with others who should be interested in this opportunity.  Applicants should contact the Jackson Center by email, at info@roberthjackson.org.

Thank you very much for your interest and assistance.  We know that teaching, ever better and more widely, the life, work, and legacies of Robert H. Jackson truly matters.


The Robert H. Jackson Center

Executive Director Position Description

Position Summary

The Executive Director is the senior executive and public face of the Robert H Jackson Center (Center) and must be able to articulate the Center’s mission, enduring relevance, values, and work. The Executive Director must inspire, guide, and support the Center’s staff, while marshaling its resources to preserve, promote, and advance the legacy of Robert H. Jackson through education, exhibits, and archives.  Reporting to the Board of Directors (Board), the Executive Director will have overall strategic and operational responsibility for the Center’s staff, programs, fiscal management, fundraising, and execution of its mission.

Duties and Responsibilities

Fundraising & Communications

Spearhead revenue generating and fundraising activities to support high quality programs, facility, and staff expenses. The Executive Director shall lead these efforts with staff and Board support.

  • Articulate the Center’s mission, importance, goals and impact to various stakeholders including: donors, foundations, partner organizations, Board members, staff, volunteers, and general audiences.
  • Identify, cultivate and solicit prospective donors.
  • Identify organizations and foundations with the potential to provide significant financial support, cultivate the relationships, and oversee proposal submissions.
  • Foster partnerships with academic, legal, government, business, and other non-profit institutions.
  • Work with staff, Board, volunteers, and stakeholders to develop and implement fundraising activities.

Leadership & Management

Ensure, by effective leadership and management, that the day-to-day operations and activities of the Center are efficiently administered and that the organization is fiscally responsible with balanced budgets, attainable revenue projections, and financial stability. Advance the Center’s programmatic excellence. Protect and develop the archives. The Executive Director shall lead these efforts with support from all staff.

  • Establish goals and ensure effective systems to accomplish key objectives in the strategic plan. Track progress, regularly evaluate program components, recommend timelines and resources needed to achieve the strategic goals, and report on these quarterly to the Board.
  • Serve as a trusted steward of all Center finances and assets. Prepare the annual operating and capital budget for approval by the Board. Report quarterly on the operating budget.
  • Oversee all activities associated with the Board, including staffing for all Board and committee meetings, meeting schedules, locations, development of agenda, and meeting materials. Identify, assess, and inform the Board of internal and external issues that affect the Center.
  • Work closely with staff and  Board to ensure that the Center has the necessary human resources to support ongoing and planned programs and fiscal growth plans as they are developed. Establish and maintain open lines of communication with the staff and ensure a level of professionalism and teamwork across the organization.  Supervise, motivate, empower, and delegate appropriate responsibility among staff members.
  • Oversee the development and implementation of educational programs for the general public, academic programs for area educators and schools, and scholarly use of the archives.

The Executive Director’s near-term (12-18 month) priorities include:

  • Develop a deep knowledge of current fundraising, core programs, staff responsibilities, operations, and business plans.
  • Become the face and voice of the Center. Learn about Robert H. Jackson and be able to effectively promote his legacy as well as the Center’s programs and objectives.
  • Develop a multi-year operating budget, including additional staff positions.
  • Develop a multi-year fundraising plan.
  • Develop a strategic plan in partnership with the Board.
  • Lead, manage, and strengthen organizational and program growth.
  • Plan, along with the Board Chair, a Board retreat.
  • Administer the execution of the facility renovations resulting from the New York State Downtown Revitalization Initiative (DRI) grant

Qualifications and Experience

All candidates should have proven leadership, coaching and relationship management experience. Concrete demonstrable experience and other qualifications include:

  • Ideally an advanced degree with at least 5 years of senior management and non-profit experience.
  • Track record as an enthusiastic and entrepreneurial fundraiser with measurable results in identifying, cultivating, and soliciting major donors, foundation, government and corporate support, and generating other sources of revenue, and success in launching and completing a capital campaign or similar fundraising initiative.
  • Track record of effectively leading and scaling an organization and staff, including examples of having taken an organization to the next stage of growth.
  • Solid, hands-on budget management skills, including budget preparation, analysis, decision-making and reporting.
  • Strong organizational abilities including planning, delegating, program development and task facilitation, and demonstrated ability to oversee and collaborate with staff.
  • Ability to convey a vision of the Center’s strategic future to staff, Board, volunteers and donors.
  • Ability to assess situations to determine importance, urgency and risks, and to make clear decisions which are timely and in the best interests of the organization.
  • Skills to collaborate with and motivate Board members and other volunteers.
  • Strong writing and public speaking skills.

Compensation

  • Base compensation based on professional experience and current market rates.
  • Reasonable salary increases based on performance.
  • Potential for bonus based on exceeding fundraising goals.

This post was emailed to the Jackson List, a private but entirely non-selective email list that reaches many thousands of subscribers around the world. I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

Jackson List: Hospital Birth (1919)

In 1911, Robert H. Jackson, a law student, met Irene A. Gerhardt, a state government secretary, in Albany, New York.  They dated during that academic year while Robert, a senior at Albany Law School, completed its program.

In summer 1912, Robert returned to Jamestown in western New York State, the city where he had already begun to establish himself.  After he became a lawyer in 1913, he built his law practice there.  He saved money to buy a house and courted Irene by letter and occasional visits.

In 1916, Robert and Irene Jackson married in Albany and then made Jamestown their home.  Within months, however, he was recruited to practice law with a prominent law firm in Buffalo.  So they moved to an apartment and lived there for the next two years.

It seems that while Robert practiced law in Jamestown and in Buffalo, Irene assisted him a bit but was not employed outside the home.  Although she was a quiet person and new to western New York, she made friends and got involved in community activities.

In Fall 1918, Robert Jackson was recruited back to Jamestown to serve as corporation counsel (the city’s attorney).  At about that same time, Irene became pregnant.

That brings us to today, July 19th.  On this date in 1919, the Jacksons became parents.  Their son William Eldred Jackson, named for Robert’s late father, was born on Saturday, July 19, 1919, in Jamestown’s WCA Hospital.

More than three decades later, Robert—by then Justice Jackson—recorded these thoughts, which are focused quite a bit on finances, about the July 1919 passage in his life:

When Bill was born I had a sense of getting a great deal more credit for it than I had earned and a certain sense of the vastness of new obligations.  I took out additional insurance.  I felt an interest in the public schools and the future of the community that I hadn’t quite so keenly felt before.  Generally I behaved as one, I suppose, who had given hostages to fortune.  I also felt that my wife was more helpless.  Up to that time I had felt that if anything happened to me, she could take care of herself quite readily, but encumbered by a child I felt that she was entitled to added protection, which I tried to provide by way of insurance.  I don’t know that I analyzed my feelings too deeply because I was pretty busy practicing law and taking care of my responsibilities.

Having a family, I suppose, was a new kind of burden for me, but I can’t say that I ever was really burdened.  I didn’t have much money, but never in my professional life was there a time when I had any problem about meeting my office rent or any obligations.  I was careful about not incurring them if I couldn’t meet them.  Somehow or other I always managed to be ahead of my obligations.  That was one of the things that my father taught me and made very emphatic.  My credit rating was always first-class in the local stores and banks.  I never had any difficulty with financial matters.

My son was not born at home.  That was a departure from anything that ever happened in my family.  My two sisters and a brother who didn’t live had all been born at home.  That was the accepted thing as far as I knew.  But the doctor said my wife should go to the hospital, so hospital it was.

Bill Jackson, whom I had the great fortune to know, became a gifted writer and lawyer.  He was, as a U.S. Navy officer, his father’s executive assistant in the prosecution of Nazi war criminals at Nuremberg during 1945-1946.  He spent his career practicing law at a leading international law firm, Milbank, Tweed, Hadley & McCloy.  And he was, proudly, a father.

In this photograph, taken when Bill was about one year old, he sits in his father’s lap.

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This post was emailed to the Jackson List, a private but entirely non-selective email list that reaches many thousands of subscribers around the world. I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

Jackson List: Justice Rosalie Silberman Abella’s Jackson Lecture, Chautauqua Institution, July 25th

I am very pleased to report that the Honourable Rosalie Silberman Abella, Justice of the Supreme Court of Canada, will deliver Chautauqua Institution’s 14th annual Robert H. Jackson Lecture on the Supreme Court of the United States, on Wednesday, July 25, 2018, at 4:00 p.m. in Chautauqua’s Hall of Philosophy.

Justice Abella is a giant of Canada’s judiciary, and in law and judging worldwide.  She was born in 1946 in a Displaced Persons camp in Allied-occupied Germany (about 200 kilometers from where Justice Jackson then was serving, in Nuremberg, as U.S. chief prosecutor of Nazi war criminals).  She was a young child when her family came to Canada as refugees.  In 1964, she graduated from the Royal Conservatory of Music in classical piano.  She then attended the University of Toronto, earning a B.A. in 1967 and an LL.B. in 1970.  She was called to the Ontario Bar in 1972 and practiced civil and criminal litigation.  In 1976, she was appointed to the Ontario Family Court, becoming the youngest person (age 29), the first pregnant person, and the first refugee appointed to the bench in Canada’s history.  In 1984, as the sole Commissioner of the federal Royal Commission on Equality in Employment, Judge Abella created the term and concept of “employment equity” and developed theories of “equality” and “discrimination” that subsequently were adopted by the Supreme Court of Canada.  In 1992, she was appointed to the Ontario Court of Appeal, and in 2004 she was appointed to Canada’s Supreme Court, becoming its first Jewish woman justice.

Among many honors, Justice Abella is a Senior Fellow of Massey College, a Fellow of the Royal Society of Canada, and a Fellow of the American Academy of Arts and Sciences.  She has given, among others, the Harlan Lecture at Princeton, the Ryan Lecture at Georgetown, the Winchester Lecture at Oxford, the Anderson Lecture at Yale, and, in 2016, Yale Law School’s graduation address, and she has been the Bullock Chair at Hebrew University and the Mackenzie King Distinguished Visiting Professor at Harvard.  (For her Court biography page, click here.)

The Jackson Lecture will bring Justice Abella to Chautauqua Institution, a special venue of arts, education, and recreation in western New York State.  Chautauqua was a very significant part of Robert H. Jackson’s life, his broad and self-directed education, his public speaking training and experiences, and his thinking.  (For an earlier Jackson List post on Chautauqua Institution, click here.  To view a 2011 documentary, “An American Narrative,” on Chautauqua, click here.  And click here for its website.)

The Jackson Lecture at Chautauqua Institution is a leading annual consideration of the Supreme Court of the United States, on which Justice Robert H. Jackson served from 1941-1954, in the weeks following the completion of the Supreme Court’s annual Term (and, this year, the announcement of a Justice’s retirement and, expected soon, a presidential nomination to fill that seat).

In past years, Chautauqua’s Jackson Lecturers have been:

  • 2005:  Geoffrey R. Stone, University of Chicago professor;
  • 2006:  Linda Greenhouse, New York Times writer and Yale Law School professor;
  • 2007:  Seth P. Waxman, WilmerHale partner and former Solicitor General of the United States;
  • 2008:  Jeffrey Toobin, staff writer at The New Yorker and CNN senior legal analyst;
  • 2009:  Paul D. Clement, Kirkland & Ellis LLP partner and former Solicitor General of the United States;
  • 2010:  Jeff Shesol, historian, communications strategist, and former White House speechwriter;
  • 2011:  Dahlia Lithwick, senior editor at Slate and Amicus podcast host;
  • 2012:  Pamela Karlan, Stanford University professor;
  • 2013:  Charles Fried, Harvard University professor and former Solicitor General of the United States;
  • 2014:  Akhil Reed Amar, Yale University professor;
  • 2015:  Laurence H. Tribe, Harvard University professor;
  • 2016:  Tracey L. Meares, Yale University professor; and
  • 2017:  Judge Jon O. Newman, of the U.S. Court of Appeals for the Second Circuit.

For a video library of these Jackson Lectures, and also video of interviews with the lecturers during their visits to Chautauqua Institution, click here.

For further information on Justice Abella’s upcoming lecture, which will bring an interesting comparative perspective to the U.S. Supreme Court at this important time, click here.

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This post was emailed to the Jackson List, a private but entirely non-selective email list that reaches many thousands of subscribers around the world. I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

Jackson List: Father Moritz Fuchs (1925-2018), Nuremberg’s Bodyguard, Nuremberg’s Spiritual Guard

My friend Father Moritz Fuchs, Jr., truly one of the best people I have ever met, died yesterday in Syracuse, New York.  He succumbed to cancer, to a systemic infection, to being just short of age 93, and maybe also, a little bit, to Nazi shrapnel.

This moment is deeply sad for all who knew or knew of Father Fuchs.  On the other hand, today he is exactly where he, a man of immense religious faith, worked his whole life to be, and that thought should comfort each of us.

Moritz Fuchs was a farm boy from upstate New York.  He learned German from his parents, immigrants from Switzerland.  After graduating from high school, he began college, studying engineering, but he soon left for military service.

By November 1944, Private Moritz Fuchs, age 19, was serving as a replacement in the 1st Army Division (the Big Red 1) in Germany’s Hürtgen Forest.  On November 19, he was wounded by shrapnel from German artillery fire.  He was evacuated to England and recovered there.

Private Fuchs, while recovering, quite luckily missed additional weeks of Hürtgen Forest fighting and then the Battle of the Bulge.  He then rejoined his unit, fighting on in Germany and into Czechoslovakia.

After Nazi Germany’s surrender in May 1945, Private Fuchs was assigned to Nuremberg.  He was ordered to supervise former SS men, now U.S. prisoners, working to clean up the bomb-damaged city.

That summer, Private Fuchs’s commanding officer gave Fuchs a new and wholly unexpected assignment.  He was to guard U.S. Supreme Court Justice Robert H. Jackson, who would be moving imminently to Nuremberg to serve as U.S. chief prosecutor, before the International Military Tribunal, of Nazi war criminals.

Private Fuchs served as Justice Jackson’s bodyguard for the entirety of the international Nuremberg trial.  During that year, Fuchs lived with Jackson, his son and executive assistant William E. Jackson, and the Justice’s secretary Mrs. Elsie Douglas in a requisitioned private home outside of Nuremberg.  Fuchs was armed at all times.  He slept in the front vestibule of the house.  He rode with Justice Jackson to and from the Palace of Justice (the courthouse), the Grand Hotel, and other locations in the area.  When Jackson worked in his courthouse office, Fuchs sat nearby.  When Jackson was in court, so was Fuchs, listening to the proceedings, watching everyone in the room, and carrying the only authorized gun in Courtroom 600.

By assignment, Staff Sergeant (following his promotion) Fuchs was proximate to Justice Jackson.  Through their shared work and compatible personalities and interests, they became friends.  They particularly enjoyed weekend walks and hunting trips in the woods outside Nuremberg—which was where Jackson observed, with relief, that his bodyguard was a good shot.

After Justice Jackson made his closing statement to the International Military Tribunal in late July 1946, he returned home to Washington while the proceedings concluded and the IMT deliberated and wrote its judgment.  Jackson brought Fuchs home on his plane, and then brought him to his house, Hickory Hill, in McLean, Virginia, for a weekend stop on his way to Fort Dix, New Jersey, and discharge from the Army.

And then Fuchs embarked on his vocation.  He pursued the religious calling that had become clear to him during the Nuremberg trial.  He became a Roman Catholic seminarian in Washington, D.C., studying for years in preparation for the priesthood.  He stayed in contact with Justice Jackson, visiting him regularly at the Supreme Court.  As Fuchs’s ordination date approached, Jackson made plans to attend.  Sadly, he died shortly before he would have seen his “dear Moritz” become a priest.  But Mrs. Douglas was present at Father Fuch’s ordination, a moment that spoke to one of Nuremberg’s most personal and hopeful results.

Father Fuchs became a Catholic parish priest in New York State.  Across six decades, he ministered to and was loved by many.

Sergeant Fuchs (retired) was a proud and tough U.S. Army veteran.  Last month, although his health was weak, he proudly participated in the Memorial Day ceremonies in his hometown, Fulton, New York.

Father Moritz Fuchs was an up-close witness to and friend of Robert Jackson and a powerful teacher of Nuremberg in all of its dimensions.  That’s how I came to meet Father Fuchs.  It’s what we discussed over many hours, including when we were together almost every year in Jamestown, New York, at the Robert H. Jackson Center.

We also were together on special trips back to Nuremberg.  The final one—he knew, and said, and was completely at peace with the fact, that it was his final one—occurred in November 2015, the 70th anniversary of the trial’s commencement.  I had the honor to moderate, in Courtroom 600, a conversation of recollections by Father Fuchs and two former colleagues who also had worked there as young men.  As he surveyed the room carefully at the start of that evening, I could see that his eyes saw back clearly to 1945.  He shared those memories with a rapt audience.

Private, then Sergeant Fuchs guarded Justice Robert Jackson—well done.

Father Fuchs also, across decades, as priest and friend, guarded humanity and morality.  I think of that as him guarding, among other things, Nuremberg’s core meaning—even better done.

Rest in peace, Father Fuchs, and thank you.

Some links—

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This post was emailed to the Jackson List, a private but entirely non-selective email list that reaches many thousands of subscribers around the world. I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

Barnette at 75

Thursday, June 14, 2018, will mark the 75th anniversary of the decision by the Supreme Court of the United States, embodied in Justice Robert H. Jackson’s opinion for the Court, in West Virginia State Board of Education v. Barnette.

The Barnette decision, rendered amid the commendable patriotism that characterized the United States home front during that dark middle period of World War II, invalidated a West Virginia board of education resolution requiring all public school teachers and students to participate in a salute to the American flag and a recitation of the Pledge of Allegiance.

The case was brought on behalf of students who were Jehovah’s Witnesses.  In deference to their belief that the Bible forbade them to bow down to graven images, they refused to salute the flag.  For that refusal, they were expelled from school.  Expulsion had the effect of making the children unlawfully absent, which subjected them to delinquency proceedings and their parents to criminal prosecution.

In Barnette, the Supreme Court held, by a vote of 6-3, that the flag salute and pledge requirements violated the children’s First Amendment rights, which exist to strengthen “individual freedom of mind in preference to officially disciplined uniformity…”

A leading hero of the Barnette case, in addition to the children, their parents and their lawyer, was the Chief Justice of the United States, Harlan Fiske Stone.  In June 1940, when Stone was an Associate Justice and U.S. involvement in the war in Europe was impending, he had dissented powerfully but alone from the Court’s decision to uphold Pennsylvania’s flag salute requirement.  (At that time, Robert Jackson, who was U.S. Attorney General and a Supreme Court nominee, reported to President Roosevelt and the Cabinet on the anti-alien, anti-“fifth column” hysteria that was sweeping the country.  Jackson criticized the Supreme Court for joining in that hysteria by ruling against Jehovah’s Witnesses in the Pennsylvania case.)

By June 1943, Stone had been appointed Chief Justice; new Associate Justices, including Jackson, had joined the Court; and a majority of the Justices was prepared to revisit and rectify what they saw as the Court’s earlier mistake.

Chief Justice Stone assigned Justice Jackson, the junior justice, to write the Court’s opinion in Barnette.  Although all of it bears reading (and regular rereading), some words to consider particularly closely are Jackson’s summary paragraphs:

The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own.  Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization.  To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds.  We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great.  But freedom to differ is not limited to things that do not matter much.  That would be a mere shadow of freedom.  The test of its substance is the right to differ as to things that touch the heart of the existing order.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.  If there are any circumstances which permit an exception, they do not now occur to us.

We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.

In the views of many, Barnette is a high point in U.S. Supreme Court history and one of Justice Robert Jackson’s very finest judicial opinions.

It was, in the United States in 1943, just a coincidence that the Supreme Court decided Barnette on “Flag Day.”  In history, that coincidence is an added dimension of the decision’s teaching power.

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Some links—

  • West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)—click here;
  • a 2006 roundtable discussion featuring sisters Gathie and Marie Barnett (whose surname got misspelled at some point in the litigation) and related commentary—click here;
  • a 2012 Jackson List post, “Arguing Barnette”—click here; and
  • a 2010 Jackson List post, “The Newest Barnette Sister”—click here.

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This post was emailed to the Jackson List, a private but entirely non-selective email list that reaches many thousands of subscribers around the world. I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

 

TLP in PHL

The Longstreth Principle (TLP) holds that every time you watch a baseball game, you will see something you’ve never seen before.  This event/occurrence, sometimes just improbable and odd, sometimes also amazing, is thus called a “TLP.”

At yesterday’s game in Philadelphia (final score: Milwaukee Brewers 12, Phillies 3), I saw Brewers catcher Erik Kratz [Who, right?] double in the second inning.  The Brewers then were leading 2-0 (runs scored in the first).  But the second inning ended with Kratz stranded on second and no runs scored—his double meant nothing.

In the bottom of the third, the Phillies scored 3 times to take the lead, 3-2.  That still was the score when Kratz next came up, in the 4th, with one out and no one on.  Phillies pitcher Jake Arrieta promptly hit him in the shoulder.  Next batter:  double play, end of inning.  So Kratz’s at-bat again meant nothing.

He next came up in the 6th.  The score was still 3-2, Phillies.  But the Brewers were threatening (see more on that below)—2 men on, only one out.

Arrieta again hit Kratz with a pitch.  So there’s a TLP, at a couple of levels:  one pitcher hits one batter with pitches twice in one game.  (And it was Jake Arrieta, a big name/star/former Cy Young award-winner, hitting Erik Kratz, who is, um, not yet a household name.)

But that was not the best TLP that I saw yesterday.  It came in the top of the 6th inning, just mentioned.  The Brewers were trailing 3-2.  Travis Shaw (3B), leading off, bounced to pitcher Arrieta, who made a horrible throw to first that pulled the 1B way off the bag, but he still had time to make the catch and get back and touch first before Shaw arrived because he did not run it out hard—bad mistake, one out.

And then the TLP began:  Ryan Braun (LF) was awarded first base on catcher interference.  Then Jonathan Villar (2B) walked.  Then the much-noted (well, noted above) Erik Kratz was hit by a pitch—bases loaded.  That was it for Arrieta—the Phillies pulled him after 5.1 innings, leading 3-2, leaving the bases loaded.  They brought in a pitcher named Luis Garcia.  He promptly got Brewers SS Orlando Arcilla to strike out, badly.  So bases loaded, two outs.  And the Brewers pitcher was coming to bat.  So they replaced him with a pinch hitter, Ji-Man Choi.  He fell behind in the count, and then got back to 3-2.  And then he, a lefty, lined a homer down the left field line, just inside the foul pole.

So that was, for me, yesterday’s TLP:  three batters got on base, none by getting a hit, each in a different way, followed by a grand slam home run.

Oh, and Erik Kratz?  He’s age 37.  He played many years in the minors before making it to the majors in 2010.  Since then, he’s had a fine, journey-man, but not starring career.  And, okay, he’s not had so many at-bats this year.  But he was hitting .500 when the game started yesterday.  And after his opening double and then two HBPs, he flied out, and then, on a poorly-fielded hit to the pitcher, got to second base when the pitcher threw the ball away.  So Kratz went 1-for-3.  The game dropped his average a little bit.  But unless you get all picky about him having only 19 at-bats, his .474 makes him one of the very leading hitters in the National League.

#thebestgame

At Hickory Hill (June 1968)

For the Jackson List:

In late 1952, Justice Robert H. Jackson hired E. Barrett Prettyman, Jr., to be his law clerk.  Prettyman then was a third year law student at the University of Virginia.  He also was the son of Barrett Sr., who Jackson first met when he came to Washington in 1934.

The senior Prettymans (Barrett Sr. and his wife Lucy) and the Jacksons (Bob and his wife Irene) became friends, sometimes socializing together.  The men also were in the same line of work—they were lawyers, sometimes government lawyers, and ultimately federal judges, Jackson on the Supreme Court of the United States and Prettyman Sr. on the U.S. Court of Appeals for the District of Columbia.

“Young Barrett” began his clerkship with Jackson in July 1953.  Prettyman did excellent work and Jackson enjoyed his company.  In early 1954, he asked Prettyman to stay on for a second year and he accepted.

During Prettyman’s clerkship, he had the experience of visiting Jackson at his home, Hickory Hill, in McLean, Virginia.  Prettyman would deliver law books, legal briefs, and other materials to Jackson at home on weekends.  When Prettyman arrived, he typically would find Jackson working on the screen porch off the kitchen.  They would talk a bit, Prettyman would hand over his deliveries, and then he would leave Jackson to his work.

Justice Jackson’s health failed during Prettyman’s clerkship.  After a major heart attack in spring 1954, Jackson recovered enough to resume work that summer.  In the fall, only a week into the Court’s new term, Jackson suffered a fatal heart attack.  Barrett Prettyman thus was Jackson’s law clerk for a little over a year.  In what would have been the remainder of Prettyman’s second clerkship year with Jackson, Justice Felix Frankfurter and then, following his appointment as Jackson’s successor, Justice John M. Harlan, each employed Prettyman as a law clerk.  He thus had the distinction of clerking for three Supreme Court justices during a two-year period.

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During his Jackson clerkship, Barrett Prettyman passed the District of Columbia bar examination and was admitted to law practice.

After some years in private practice, Prettyman became a special assistant to U.S. Attorney General Robert F. Kennedy.  As Attorney General, Kennedy was serving in the Cabinet office that had been Robert Jackson’s during 1940-41.

Some years earlier, Robert Kennedy, his wife Ethel, and their growing family also had become occupants of Bob and Irene Jackson’s former home, Hickory Hill.  It was Robert Kennedy’s home, and famously so, for the rest of his life.

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On June 4, 1968, after winning California’s Democratic presidential primary, Senator Robert F. Kennedy was shot at the Ambassador Hotel in Los Angeles.  Gravely wounded, he was taken to a hospital where doctors worked to save his life.  It soon was clear that the prognosis was bleak.

Barrett Prettyman was in the Midwest when he learned that Senator Kennedy had been shot.  Prettyman contacted a colleague in Los Angeles and asked how he could help.  He was told to join former astronaut John Glenn, a close Kennedy friend, and others at Hickory Hill, where they were caring for the younger Kennedy children and preparing for horrible news.

Prettyman arrived at Hickory Hill on the evening of Wednesday, June 5, 1968.  He talked to Glenn and others.  Glenn announced that he was going upstairs to get some sleep, and that Prettyman should wake him when the call came from Los Angeles.  Prettyman wandered the ground floor of the house.  He walked back into the kitchen, turned right, looked out onto the screen porch, recalled happy visits to that place.…

Prettyman laid down on the living room sofa and tried to sleep.  It did not come.  He was awake when the call came, sometime around midnight local time.  He then went upstairs, woke John Glenn, and reported that Senator Kennedy was gone.

My friend Barrett Prettyman, who lived on for almost fifty more years after June 1968, shared these memories with me and others many times.  One of his tellings, captured on video:

I saw Barrett choke up every time he recalled and tried to speak about the loss of Robert F. Kennedy.  That is, still, the only proper reaction.

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This post was emailed to the Jackson List, a private but entirely non-selective email list that reaches many thousands of subscribers around the world. I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.