Skip to Navigation
University of Pittsburgh
Print This Page Print this pages

November 7, 1996

KEYNOTE ADDRESS FOR THE 1996 DAY OF REMEMBRANCE

The law of the United States sets aside today, Yom Hashoah, as a Day of Remembrance–of the Holocaust. On Yom Hashoah 1996, we recall that 50 years ago another member of the Court on which I sit, Justice Robert Jackson, joined representatives of other nations, as a prosecutor, at Nuremberg….

Justice Jackson described the Nuremberg trial as "the most important trial that could be imagined." He described his own work there as the most important "experience of my life," "infinitely more important than my work on the Supreme Court, or …anything that I did as Attorney General." This afternoon, speaking to you as an American Jew, a judge, a Member of the Supreme Court, I should like briefly to explain why I think that he was right.

First, as a lawyer, Robert Jackson understood the importance of collecting evidence. Collecting evidence? one might respond. What need to collect evidence in a city where, only 20 years before, the law itself, in the form of Nuremberg Decrees, had segregated Jews into ghettos, placed them in forced labor, expelled them from their professions, expropriated their property, and forbid them all cultural life, press, theatre and schools. What need to collect evidence with the death camps that followed themselves opened to a world, which finally might see. "Evidence," one might then have exclaimed. "Just open your eyes and look around you." …The prosecutors decided not to ask any defendant to testify against another defendant, lest anyone believe that one defendant's hope for leniency led him to exaggerate another's crimes. But they permitted each defendant to call witnesses, to testify in his own behalf, to make an additional statement not under oath, and to present documentary evidence. The very point was to say to these defendants: What have you to say when faced with our case–a case that you, not we, have made, resting on your own words and confessed deeds? What is your response? The answer, after more than 10 months and 17,000 transcript pages, was, in respect to 19 of the defendants, that there was no answer. There was no response. There was nothing to say. The evidence is there, in Jackson's words, "with such authenticity and in such detail that there can be no responsible denial of these crimes in the future and no tradition of martyrdom of the Nazi leaders can arise among informed people." Future generations need only open their eyes and read.

Second, as a judge, Robert Jackson understood the value of precedent–what Cardozo called "the power of the beaten path." He hoped to…forge from the victorious nations' several different legal systems a single workable system that, in this instance, would serve as the voice of human decency. He hoped to create a "model of forensic fairness" that even a defeated nation would perceive as fair.

Did he succeed? At the least, three-quarters of the German nation at the time said they found the trial "fair" and "just." More importantly, there is cause for optimism about the larger objectives. Consider how concern for the protection of basic human liberties grew dramatically in the United States, in Europe, and then further abroad, in the half century after World War II. Consider the development of what is now a near consensus that legal institutions — written constitutions, bills of rights, fair procedures, an independent judiciary — should play a role, sometimes an important role, in the protection of human liberty. Consider that, today, a half century after Nuremberg (and history does not count 50 years as long), nations feel that they cannot simply ignore the most barbarous acts of other nations; nor, for that matter, as recent events show, can those who commit those acts ignore the ever more real possibility that they will be held accountable and brought to justice under law. We are drawn to follow a path once beaten.

…And if I emphasize the role of Nuremberg in a story of the Holocaust, that is not simply because Justice Jackson himself hoped that the trial "would commend itself to posterity." Rather, it is because our role–the role of almost all of us–today in relation to the Holocaust is not simply to learn from it, but also to tell it and to retell it, ourselves, to our children and to future generations. Those who were lost said, "Remember us." To do that, to remember and to repeat the story is to preserve the past, it is to learn from the past, it is to instruct and to warn the future. It is to help that future, by leading them to understand the very worst of which human nature is capable. But, it is also to tell that small part of the story that will also remind them of one human virtue — humanity's "aspiration to do justice."

Filed under: Feature,Volume 29 Issue 6

Leave a Reply