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As I heard Judge Neil Gorsuch last week during the hearings on his suitability for the Supreme Court, repeatedly assert that a judge must only “interpret the law” I couldn’t stop the banging echo of memory that the Final Solution in Germany was “legal” from top to bottom.

Yes, legal.

There was extra-legal harassment, beatings and murders, but the expulsions, imprisonment, forced labor, gassing and cremation of millions were all legal.

April 7, 1933 —Law for the Restoration of the Professional Civil Service

“Civil servants who were not of Aryan descent were to retire. Non Aryans were defined as someone descended from non Aryans, especially those descended from Jewish parents, or grandparents.[2] Members of the Communist Party, or any related or associated organisation were to be dismissed.[3] This meant that Jews, other non Aryans, and political opponents could not serve as teachers, professors, judges, or other government positions. Shortly afterward, a similar law was passed concerning lawyers, doctors, tax consultants, musicians, and notaries.”

1935, September The Nuremberg Laws, included

“… the Law for the Protection of German Blood and German Honour, which forbade marriages and extramarital intercourse between Jews and Germans and the employment of German females under 45 in Jewish households, and

“…the Reich Citizenship Law, which declared that only those of German or related blood were eligible to be Reich citizens; the remainder were classed as state subjects, without citizenship rights. A supplementary decree outlining the definition of who was Jewish was passed on 14 November, and the Reich Citizenship Law officially came into force on that date.”

and many many more, uncountable, laws from 1933 through 1939, and beyond.

As Hitler broke his pact with Stalin in June of 1941 and headed for the gates of Moscow, the 5 million Jews in the soon-to-be-conquered Russia worried the war planners.  The already overwhelming problem of the “storage of Jews” was going to divert men and materiel from the war.  New methods, new laws, and rewrites of old laws were required to solve the problem. That summer Hermann Göring gave written authority to  SS General Richard Heydrich, “The Butcher of Prague,” to compel cooperation of all branches of government, national, state and local, with planning and carrying out the solution. Heydrich summoned leading SS, army and governmental figures to a meeting in a sumptuous mansion in Wannsee, a suburb of Berlin, January, 1942.

It is hard to imagine Kenneth Branagh, the acclaimed Shakespearean actor, as this man, but convince us, he does.  Frank Pierson‘s 2001, Conspiracy, a TV-film, puts him as the perfectly groomed, blond, meticulous, dominant head of the conference table of fifteen high German officials.  To his right is Adolf Eichmann (Stanley Tucci).  Around the table are Freidrich Kritzinger (David Threlfall), who offers some opposition to the plan, but only because it intrudes on his prerogatives, Wilhem Stuckart (Colin Firth), a lawyer, (in fact, when asked for a show of hands at the table, half are lawyers), who takes pride in his careful crafting of the Nuremberg Laws and wants to be sure any new activity is reflected in law; defending himself from accusations that his laws will save Jews, he fiercely declares that he will take second place to no one in his hatred of Jews.

The phrase “banality of  evil” has become controversial since Hannah Arendt coined the term to describe Eichmann’s bureaucratic day-to-day administration of genocide.  Whatever its usefulness today, it is absolutely stunning to see a filmed recreation of an actual event in which fifteen men, some in uniform, some not, engage in jocular banter, get up for  food breaks, comment on the fine wine while considering mass murder.  Except for the content, the discussion is the stuff of millions of board rooms round the world — serious business at hand with light conviviality as a social lubricant, helping to bond and push through the alpha-male’s desires.

It is a war picture, but not of the usual kind. No tanks, no metal helmets, no bombs, blood or bodies launched into the air.  For anyone whose mental images, and fears, of Nazis are of jackbooted, whip bearing thugs, stern-faced and implacable, this is  movie to disturb you more by calming you down. Branaghs’ Heydrich is socially skilled, charming and threatening by turns, a man of sensitivity who is moved by the Adagio of Schubert’s String Quintet in C Major, the kind of man whose cover does not reveal the book.

The closing moments of the film reprise the lives of the men involved, after the war:  released for lack of evidence, six years in prison, suicide, hanged, lived to old age…  Heydrich, himself, was assassinated four month later in Prague, for which the villages of Lidice and Ležáky paid.  Some 13,000 people were arrested, deported, and imprisoned. All males over the age of 16 in were murdered. All the women in Ležáky were murdered.

The Final Solution went on, as planned.  Legally.

So yes, it is fitting and proper that when jurists are being considered for high office in this land of  “Rule of Law,” they be questioned as to their view of the proper connections between the law and the people for whom or against whom it is to operate.

When Gorsuch writes, in Transam Trucking v. Administrative Review Board, that

“It might be fair to ask whether TransAm’s decision was a wise or kind one. But it’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one.”

it is time to ask hard questions, of the man,  but also of our understanding of the rule of law.  Is our faith in it misplaced?  Should we be asking “Who rules the law? or For whom does the law rule?”


The Wannsee mansion is now the House of the Wannsee Conference: Memorial and Educational Site.