This past year has seen a staggering number of attacks against law firms and state and federal judges across the nation, with a sharp rise in death threats against judges and their families, and actual attempts on their lives. These attacks are influencing the national dialogue on judicial independence and judicial integrity.

Most of us find these attacks and the violent rhetoric to be disturbing, to say the least. Alaska is home to some extraordinary judges who are deeply committed to the law and the community. Of great significance, these attacks are reminiscent of efforts made by the Nazi party to delegitimize judges and the courts in Germany during Hitler’s reign. He threatened sitting judges who did not agree with him, sent dissenting attorneys to their deaths in camps and in very short order decimated nation-state employees. Hitler eliminated the German Constitution, dismantled many remaining laws, and set up an entirely new legal system that at its core required allegiance and loyalty to Hitler.

With this history in mind, Judge Elaine Andrews (retired), recently made a presentation about the swiftness with which the Nazis destroyed Germany’s courts and the rule of law when Hitler took control, and its current relevance to Alaskans at this moment in time. This portion of Judge Andrews’ presentation relies upon a presentation in Anchorage made by the United States Holocaust Museum, as well as a publication from the Museum. Her presentation included a component about the differing processes used to appoint state vs. federal judges. Due to the length of her presentation and the importance of the details, we have divided her entire presentation into two newsletters. Following is the first of the two installments.

Judge Andrews began her presentation noting her fully retired status, explaining “I decided to fully retire because I felt the need to speak out freely, as sitting judges cannot speak up freely about political matters.” In her presentation, she pointed out the unmistakable parallels between the Nazi takeover and what is happening in our own country today.

She reviewed seven critical enactments that formed the foundational structure of the Nazi takeover of Germany. This newsletter will review those enactments. The Reichstag Fire Decree was the first, an executive order based on an emergency – the burning of the Reichstag, Germany’s Parliament building. The “Decree of the Reich President for the Protection of the People and State” suspended most of the basic rights established by the Weimar Constitution and tightened the Reich’s control over state governments. It became a permanent feature of the Nazi regime that permitted restrictions on assembly, free speech, and freedom of the press, and removed restraints on police investigations. Importantly, it stated “If measures necessary for the restoration of public security and order were not taken, the Reich government was authorized to temporarily take over the powers of the highest state authority.”

Judge Andrews commented, “As we are all aware, in this country many executive orders have been issued this past year based on allegations of national ‘emergencies’ – e.g. a fentanyl crisis, an immigrant invasion, voter fraud, and claims of uncontrolled crime in several large cities. These orders authorized military and other law enforcement interventions that have never previously been seen in our country.”

The second enactment was the Preventative Police Action law, which authorized arrests without warrants or judicial review. Nazi leadership dramatically redefined and expanded the role of the police, giving them broad powers independent of judicial review to search, arrest, and incarcerate real or perceived enemies and others that Nazis considered to be criminal. It is notable that the Supreme Court in Germany failed to challenge or protest its loss of authority under this law. In pointing out the parallels, Judge Andrews referenced the U.S. deportations of immigrants without court hearings, arrests without warrants leading to the illegal/improper arrest and deportation of U.S. citizens, and U.S. Supreme Court rulings permitting law enforcement to stop and question people based on nothing more than skin color, language and/or location.

The third enactment was the Enabling Act, intended to “Remedy the “Distress of the People.” This became the cornerstone of the Nazi regime. It was not an executive action – rather, it was a law, and as such was required to be passed by two-thirds of the German Parliament. Hitler made sure that members of the Parliament who were not going to support this law were taken into “protective custody.” Those who remained were intimidated and threatened – in order to garner their vote. The German Supreme Court did not challenge this act when it became law. In fact, the German Supreme Court allowed Hitler to enact additional laws without the agreement of the Parliament. Many German judges viewed Hitler’s government as legitimate and viewed themselves as public servants who owed allegiance to support the government.

The fourth law established the death penalty. At the time that the Reichstag burned, the crimes of arson and treason were punishable only by life imprisonment. When the Nazis took the alleged perpetrators of the Reichstag fire to trial, they changed the law and made it retroactive with a new punishment for the crime: the death penalty. There was a political show trial regarding the Reichstag arsonists – one defendant was convicted and the co-defendants were acquitted. Hitler was so outraged about the acquittals that he removed from the jurisdiction of the German Supreme Court all political crimes and established a new People’s Court, appointing Nazi judges to this court.

The fifth law aligned civil service to Nazi aims. It removed from civil service Jews and anyone else consider to be not aligned with Hitler and forced the retirement of civil servants. This was the first law to specifically target Jews, and any Jewish person in the justice system was removed.

We are all aware of the focused removal or forced resignation of those in the highest levels of the military, the U.S. Department of Justice, the CDC and Department of Education and other high-level posts who are “not aligned” with the Trump agenda. This includes the removal of virtually all inspectors general (who review the ethics and the actions of various state departments).

The sixth law consolidated a single party dictatorship in Germany. While the U.S. does not have a law of this nature yet, the U.S. Supreme Court has permitted partisan gerrymandering. While race-based gerrymandering is still impermissible, the Supreme Court concluded that partisan gerrymandering is permissible.

The seventh law required an oath of loyalty for all state officials. The longstanding oath to swear loyalty to the German Constitution was changed to swear loyalty to Hitler as the head of state. Judge Andrews noted that loyalty is paramount in the current situation.

Thus, within only a few months (February – August 1933) these seven laws facilitated implementation of the Nazi agenda.

One final important note: in 1942, the head of the justice system sent a letter to all judges, to be kept secret, that threatened the removal of any judge who did not follow the harsh principles of these laws and apply the harshest sentences possible under the law. This dictate was kept secret because the Nazi regime wanted to preserve the perception that the judges were acting independently, rather than being directed by the Nazi regime.

Our thanks to John McKay and the folks at the Anchorage Unitarian Universalist Fellowship Forum for offering Judge Andrews an opportunity to present.

To be continued in our next newsletter – Stay tuned!

– Alaskans For Fair Courts