I am deeply sad and truly sorry to report that Benjamin Ferencz died last evening, April 7, 2023, at his apartment in Boynton Beach, Florida. Ben officially was age 103—or, as he preferred to put it, he was 104, i.e., in his 104^th year.

Berrel Ferencz was born around March 11, 1920 (there is no birth certificate), in Transylvania, then part of Romania. His parents brought him as a baby to the United States.

He became Benjamin. He grew up in New York City’s “Hell’s Kitchen.” He knew poverty, rampant crime, and suffering. He became, moving quickly, a public-school student, a college graduate, a Harvard Law School graduate, a World War II U.S. Army infantryman serving in combat in Europe, a soldier investigating German war crimes at atrocity sites, a liberator of Nazi concentration camp survivors, and a civilian prosecuting Nazi mass murder.

Beginning in Spring 1946, Ben Ferencz served as a prosecutor in Nuremberg, in the U.S. occupation zone of what had been Nazi Germany.

During 1947 and 1948, Ben was chief prosecutor of the Einsatzgruppen case (United States v. Otto Ohlendorf, et al.). It was his first case as a lawyer. He charged the defendants, leaders of Nazi killing operations in Eastern Europe, with crimes against humanity (“a systematic program of genocide”), war crimes, and membership in criminal Nazi organizations.

(For details, including a link to video of Ben’s opening statement at the Einsatzgruppen trial, click here.)

Ben’s cases against those defendants, built on the documents that they sent contemporaneously from “the field” to Berlin, were brief, horrifying, and irrefutable.

More than twenty Einsatzgruppen defendants were convicted of killing almost one million people. The Einsatzgruppen case was and is the biggest murder trial in human history.

Ben Ferencz returned to the United States in the 1950s.

For the rest of his life, Ben was a lawyer for Holocaust survivors, a law teacher, a writer, a lecturer around the world, a lobbyist for and a builder of international legal institutions, a force for world progress toward peace through law, and a moral exemplar to millions.

From the first time that I met Ben, in 1999, I knew that he would be the longest-living Nuremberg podium prosecutor.

I knew this because of the math—Ben had been so young (age 26, or close enough) at Nuremberg.

I knew this because Ben, though less than tall, was physically very strong—he did rigorous calisthenics every day, including standing on his head and lots of swimming.

I knew this because Ben was so driven—“Never give up” was his main message, and he lived it.

And I knew this because Ben told me explicitly that he would not die—”I’ve got no time to die,” he said. “Luckily, I’m immortal. I’ve got too much work to do.”

*     *     *
Alas, Ben turned out to be wrong about that one small thing.

But he was oh so right about everything that he stood for and worked to address, including the value of every human life, the supreme evil of war, and the need to build law to protect people from that man-made disaster.

I will always be grateful that Ben Ferencz was my teacher and my dear, generous friend. He was great to me, and to all, in every way.

And luckily Ben Ferencz—the memory; the example; the lessons—is permanent, because there is so much work to do.

So honor him by heeding his injunction: Keep working. Never give up!

On Monday, October 5, 1941, Louis Dembitz Brandeis, who was a retired associate justice of the Supreme Court of the United States after twenty-two years (1916-1939) in active service, died in Washington, D.C., at age eighty-four.

The date was, coincidentally, the start of the Supreme Court’s October Term 1941. For new associate justices James F. Byrnes and Robert H. Jackson, it was their first day on the Court’s bench. For Chief Justice Harlan Fiske Stone, who had been “elevated” during the Court’s summer recess from an associate justiceship, it was his first day in the Court’s center chair.

A year later, the president of the American Bar Association presented to the Court a bronze portrait bust of Justice Brandeis. Sculpted by Eleanor Platt of New York City, it was and is striking, powerful, indeed beautiful. Chief Justice Stone, on behalf of the Court, accepted the bust gratefully. The Court displayed it in its Library. (In subsequent years, this bust was in the Court’s West Conference Room. Today it is opposite one of the main visitor elevators on the Court’s ground floor.)

Six months later, on Wednesday, March 17, 1943—eighty years ago today—Eleanor Roosevelt, the First Lady of the U.S. (the wife of U.S. president Franklin D. Roosevelt), viewed this bust at the Court.

Mrs. Roosevelt came to the Court at 1:00 p.m., at the invitation of Justice Felix Frankfurter, for a private, relaxed luncheon with most of the justices. Frankfurter, Stone, Jackson, Owen J. Roberts, Hugo L. Black, Stanley Reed, and Wiley Rutledge were present. William O. Douglas and Frank Murphy were absent. Byrnes also was absent—he recently had resigned, leaving the Court after only one year to assist President Roosevelt in administering the economy during World War II.

Following the lunch, Stone and Frankfurter escorted Mrs. Roosevelt to the Court’s Library to see the Brandeis bust. She admired it, greatly. They also showed her painted portraits of some former justices. By 3:00 p.m., she was back at the White House.

That day, March 17, 1943, was the Roosevelts’ 38^th wedding anniversary.

At 7:30 that evening, Eleanor and Franklin Roosevelt celebrated the occasion at a private White House dinner with a small number of friends, including Treasury secretary Henry Morgenthau, Jr., his wife Elinor, and their son U.S. Army Lieutenant Henry Morgenthau, III; presidential adviser (and White House resident) Harry Hopkins and his wife Louise; and Eleanor Roosevelt’s personal secretary and aide Malvina “Tommy” Thompson.

Here are some relevant images—

• From the Supreme Court’s Journal, American Bar Association president George Maurice Morris’s October 5, 1942, remarks, presenting the Brandeis bust to the Court:

• Chief Justice Stone’s remarks in response:

• Excerpts from Eleanor Roosevelt’s March 18, 1943, “My Day” column, syndicated daily in newspapers across the nation, describing her visit the previous day to the Supreme Court:

• Eleanor (knitting) and Franklin (reading) Roosevelt:

So have a very Happy March 17.

Remember to look up, at least metaphorically, at Louis Brandeis, at Eleanor Roosevelt, at Franklin Roosevelt, and, yes, at St. Patrick.

Tomorrow, March 11, 2023, will mark more or less the 103rd birthday of Benjamin B. Ferencz. He is the last living Nuremberg podium prosecutor, i.e., one who had a speaking role in court. He is most recently, among his many honors, recipient of the Congressional Gold Medal.

I write “more or less” about Ben’s birth date because when he (then Berrel) was born in Transylvania (then part of Romania) around March 1920, no one made a precise record (or at least none has survived) of the event.

Berrel became an emigrant baby, an American, “Benjamin,” a Hell’s Kitchen boy, a New York City schoolboy, a college student and then graduate, a Harvard Law School student and then graduate, and a World War II soldier and war crimes investigator in France and Germany.

Following Nazi Germany’s surrender, Ben Ferencz returned to civilian life. Then in 1946 he was hired to be a prosecutor at Nuremberg of Nazi war crimes. During 1947 and 1948, he was chief prosecutor in the Einsatzgruppen case (United States v. Otto Ohlendorf, et al.). He charged the defendants, leaders of Nazi killing operations in Eastern Europe, with crimes against humanity (“a systematic program of genocide”), war crimes, and membership in criminal Nazi organizations.

Ben’s cases against those defendants, built on their contemporaneous killing reports, were brief, horrifying, and irrefutable. More than twenty men were convicted. The Einsatzgruppen case was and is the biggest murder trial in human history.

In the 1950s, Ben returned to the United States. He became a prominent champion of global justice, a builder of international legal institutions, a guide to and a teacher of peace through law, and a moral exemplar to millions.

Ben has been heard to say that he is already 104 years old. Maybe. He at least is cracking the start of his 104th year.

But really, beyond being astounded, who cares about the number? What matters, now and always, is Ben’s life, his work, his ideas, his teaching, and his example.

Thank you deeply, Ben, for being humanity’s lawyer and its—our—dear, indefatigable friend.

For more information, I refer you to these sources, including many that are Ben’s voice—

• video excerpts of his 1947 opening statement at Nuremberg in the Einsatzgruppen case: https://www.youtube.com/watch?v=b67B-MoKG_o;
• a November 2005 interview of Ben: https://www.youtube.com/watch?v=e-8m5YHt__4;
• a Ben TED talk from 2017: https://www.youtube.com/watch?v=Zwa4zRWDsvI;
• the trailer of the 2018 documentary, Prosecuting Evil: The Extraordinary World of Ben Ferencz: https://www.youtube.com/watch?v=meDbZemxuK4; and
• Ben’s website, a treasure house of his stories, writings, and speeches: https://benferencz.org/.

In October 1948, Justice Robert H. Jackson read a Washington newspaper story about the then-ongoing project to build a new United States Courthouse in the District of Columbia, on the site of a parking lot south of the District’s Municipal Center.

Justice Jackson thought immediately of a courthouse-building project that he had been part of—in an official sense, he had led it—seven years earlier. In summer 1945, Jackson, serving as U.S. Chief of Counsel for the Prosecution of Axis War Criminals in the European Theater, had negotiated with allied nation representatives to create the world’s first international criminal court. One of the many issues that Jackson worked on was where this court—this forum for an international trial of Nazi war criminals—should be located. At the recommendation of the U.S. Army, Jackson favored the city of Nuremberg, located in the U.S. occupation zone of what had been Nazi Germany.

Jackson visited Nuremberg in early July 1945. He inspected its courthouse, the Palace of Justice, which was connected to a large prison. The buildings were war-damaged but repairable. Jackson decided that this should be the trial venue.

A couple of weeks later, Jackson showed the Palace of Justice to his British and French counterparts. They agreed that it should be the trial site. And their Russian allies soon made the agreement unanimous—the four-nation trial of the principal surviving Nazi leaders would occur in Nuremberg’s Palace of Justice.

The ensuing project of repairing and preparing the Palace of Justice for trial was managed by U.S. Army Captain Daniel Urban Kiley, a thirty-three-year-old architect from Boston who had served during World War II in the U.S. Office of Strategic Services.

Dan Kiley redesigned the Palace of Justice’s largest courtroom, Courtroom 600. In consultation with Justice Jackson and others, Kiley planned a courtroom that would center on the witness box, located in the front-center of the room. The defendants’ box and their lawyers’ tables would be in front of the witness, to the right. The judicial bench and tables for court staff would be in front of the witness, to the left. The witness would face the questioner’s podium and, behind that, five tables of prosecutors. Behind them and in a balcony would be seats for spectators, including a large press corps. The front corner of the courtroom would have a soundproof box for interpreters. Boxes for cameramen would be built into the walls of the courtroom.

As part of planning these modifications, Kiley’s team built an architectural model showing how Courtroom 600 would look.

They then, assisted by German prisoner of war labor, did the construction work.

The courtroom was completed in time for the trial to commence on November 20, 1945. It all worked well enough during the ten-month trial that followed.

Justice Jackson returned to the U.S. and his job as a Supreme Court associate justice in October 1946.

Other U.S. lawyers, led by Jackson’s former deputy Telford Taylor, who had been promoted to the rank of Army brigadier general and appointed by President Truman to succeed Jackson as U.S. chief of counsel, remained in Nuremberg. During the next two-plus years, from Fall 1946 until Spring 1949, Taylor and his team prosecuted in Courtroom 600 twelve additional cases against Nazi war criminals—the U.S. “subsequent proceedings.”

In late 1946, it seems, Telford Taylor in Nuremberg informed his office in the Pentagon that he soon would be shipping to Justice Jackson the architectural model of Courtroom 600. The Pentagon office director telephoned that message to Jackson’s secretary at the Court. She typed up the message and gave it to him.

It seems that Justice Jackson was pleased to get this message. In due course, the Nuremberg courtroom model arrived in Washington. It was delivered to Jackson. He kept it in his Supreme Court chambers.

And then, in October 1948, Justice Jackson read of the plans to build Washington, D.C.’s new federal courthouse.

Jackson, thinking of and probably looking at his Nuremberg model, wrote on October 16 to his friend Chief Justice Bolitha Laws of the District Court of the U.S. for the District of Columbia. Justice Jackson told Chief Justice Laws of the Nuremberg model and the unusual features that Dan Kiley and team had built into Courtroom 600 in 1945. Jackson invited Laws to come to his chambers to see the model.

Chief Justice Laws promptly accepted the invitation.

Chief Justice Laws visited Justice Jackson at the Supreme Court on October 26, 1948. They met in Jackson’s chambers. Laws looked with interest at Jackson’s model of Nuremberg Courtroom 600…

The trail from there is cold.

The new D.C. federal courthouse got built. It today is the E. Barrett Prettyman U.S. Courthouse. Its courtrooms are U.S.-traditional, featuring the judicial bench in the center-front of the room. They do not match Jackson’s and Kiley’s 1945 Nuremberg Courtroom 600.

Yes, Nuremberg today is a powerful law and government model–our world continues, sadly, to see military aggression, war crimes, crimes against humanity, and genocide, and Nuremberg is a leading model for our work to hold perpetrators legally accountable for those crimes.

But Nuremberg also was, physically, in Justice Robert Jackson’s chambers in October 1948, an architectural model for study and learning

I hope that this model of Nuremberg’s Palace of Justice Courtroom 600 still exists. It is not, so far as I have found, at the U.S. Supreme Court or in the possession of a Jackson descendant.

So this Jackson List post is, in the end, a crowd-sourced request: If you find what once was Justice Jackson’s Nuremberg model, please let me know.

I then will do what I can to get it preserved, conserved, and displayed properly.

Today marks the 131^st anniversary of Robert Houghwout Jackson’s birth. He was born on Saturday, February 13, 1892, in the Jackson family farmhouse in Spring Creek Township, Warren County, Pennsylvania (where it was a very snowy day). Robert was born on the second floor of this house, in the same room where his father William Eldred Jackson had been born thirty years earlier.

For Jackson birthday reading, here from the Jackson List archive are some previous RHJ birthday-related posts:

• “Birthday” (click here);
• “Birthday Reading (1938)” (click here);
• “Jackson Birthdays 2006, 1946 & 1892” (click here);
• “Birthday Bonds, Appreciation, Treasure” (click here);
• “Birthday Wishes from Home (1946)” (click here);
• “Turning 54 at Nuremberg” (click here);
• “Birthday Cake in Chambers (1952)” (click here); and
• “February Birthday Carnival” (click here).

The Jackson List archive site, which is word-searchable and, using quotation marks, phrase-searchable, is here: http://thejacksonlist.com/.

Thanks to the many new subscribers who have joined the Jackson List since RHJ was only 130 years old. And to all, happy “RHJ Day.”

The 1945-1946 International Military Tribunal (IMT) that adjudicated the guilt of accused Nazi war criminals was a temporary entity. After holding a nine-month-long trial in Nuremberg, it delivered its international law and factual judgments in fall 1946 on the defendants’ conduct. The IMT convicted eighteen men and three organizations as international criminals. It imposed sentences on the eighteen. It acquitted three other men. It then adjourned—it went out of business.

Although very little of the international Nuremberg trial was filmed, it all—a trial conducted in four languages—was audio-recorded.

Chief U.S. prosecutor Justice Robert H. Jackson at the podium microphone,
connected to the recording system, in the Nuremberg courtroom.After the IMT concluded, those recordings were shipped from Nuremberg to the world’s only permanent court: The International Court of Justice (ICJ), located in the Peace Palace in The Hague, in the Netherlands.

Across the next decades, the IMT recordings were stored at the ICJ but they were inaccessible.

They were unknown in public memory.

It is history’s great fortune that the IMT recordings survived. In recent years, they have been digitized. They now are available for listening online, including here, in an organized fashion, on the Robert H. Jackson Center’s website:

https://www.roberthjackson.org/nuremberg-trial-audio-video-2/

These Nuremberg trial recordings are the basis of a new National Geographic documentary film, “Nazis at Nuremberg: The Lost Testimony.” The film premiered in the United Kingdom last month. It will be shown in the U.S. for the first time this week.

Here is the film’s trailer:

https://www.nationalgeographic.co.uk/video/tv/nazis-at-nuremberg-the-lost-testimony#vpcp

Here is National Geographic TV’s U.S. schedule; the film will be on this Thursday, January 26, 2023, at 1:00 p.m. (1300 hours) EST:

https://www.nationalgeographic.com/tv/watch-live/natgeo-east

I am honored to be one of the expert “talking heads” in the film.

Please watch, set your TiVo/DVR, and spread the word.

In Spring 1952, United States President Harry S. Truman directed Secretary of Commerce Charles W. Sawyer to seize the nation’s steel mills and keep them operating.

Truman was acting ahead of an impending steelworkers’ strike that would have shut the mills down, stopping steel production in the U.S. Truman concluded that it was vital for national security to prevent that, because steel was central, obviously, to arming U.S. forces then fighting in the Korean War, and to staying ahead of the Soviet Union in the nuclear arms race.

The steel companies responded to the seizure by filing a federal lawsuit. They argued that the president had neither constitutional nor statutory authority to seize their private property.

The case soon moved, expedited, to the U.S. Supreme Court.

The Court heard oral arguments in the “Steel Seizure Cases” (as they were nicknamed then) on Monday, May 12, and Tuesday, May 13, 1952.

At the end of that week, on Friday, May 16, Chief Justice Fred M. Vinson sent a memorandum to each of the eight associate justices.

The Chief Justice expressed hope that no information concerning the justices’ deciding would leak out of the Court. He asked, implicitly, each justice to do what he could to prevent leaking: “May I suggest that we should take extra precaution to prevent any leak in respect of our deliberations in [these] cases.”

An archived document shows that when one of the eight, Justice Harold H. Burton, received and read this memorandum, he sent it on, perhaps immediately, to his two law clerks, Charles H. Hileman and John W. Douglas. Justice Burton penciled a note on the memorandum, asking the clerks to “Please note + return.”

They did—Hileman and Douglas each initialed the memorandum and then returned it to Justice Burton.

On that Friday afternoon, the Justices met in their private conference. They discussed the steel cases and each voted. They decided, by a 6-3 vote, that Truman had acted illegally.

After the conference, Justice Robert H. Jackson returned to his chambers. His law clerks George Niebank and Bill Rehnquist were waiting for him, eager to hear how the Court would be deciding the momentous case. “Well, boys,” Jackson told them, “the President got licked.”

I feel confident, having met and interviewed Hileman, Douglas, Niebank, and Rehnquist when they were accomplished senior lawyers, about the Steel Seizure Cases and other topics, that in 1952 they were not leakers.

Indeed, based on having known and/or interviewed many former Supreme Court law clerks, I find it hard to imagine that any of them, in 1952 or in 2022 for that matter, would make an unauthorized leak of information, at least beyond telling their spouses, about a case while it was pending.

I think that none would do it because each is a person of high integrity, including about obeying the Court’s nondisclosure rules. (These days, among other measures and warnings, each law clerk signs a non-disclosure agreement at the start of her employment.) And I think that any law clerk who was tempted, somehow, to leak about a pending cases would pull back because of concerns about getting caught and destroying an anointed legal career just as it was getting started.

That’s still my bet today.

On Tuesday, December 4, 1951—this date seventy-one years ago—United States Justice Robert H. Jackson wrote to William Rehnquist, a twenty-seven year old law student at Stanford University.

A few months earlier, Justice Jackson had met Rehnquist at Stanford. Jackson had been visiting his former law clerk Phil Neal, a Stanford Law School professor, at his home. Professor Neal asked Jackson if he wished, while there, to interview Neal’s top student as a clerkship candidate.

That person was Rehnquist. He was around because he was taking summer classes.

Jackson said sure. He met with Rehnquist in Neal’s faculty office

Jackson liked Rehnquist. They spoke for a while, including about Rehnquist’s Swedish ancestry and Jackson’s Jamestown, New York, neighbors and friends who were of Swedish ancestry.

Rehnquist reported that he would be graduating from Stanford in December. Jackson said that Rehnquist should take the bar examination thereafter, as soon as he could. Jackson told Rehnquist that he had an excellent law clerk and no immediate need for a second one. But Jackson added that he might have enough work to take on a second clerk in early 1952 and that he would be in touch with Rehnquist then.

By late November or early December, Rehnquist, about to finish law school, had heard nothing from Jackson. So he wrote him a gently nudging letter. Rehnquist told Jackson that he had California law firm job offers and did not want to let them based on the mere possibility that Jackson would offer him a clerkship.

Jackson, a practical, direct person, responded immediately. He wrote to Rehnquist on December 4, 1951, offering him the job.

*     *     *

Rehnquist clerked for Justice Jackson from late January 1952 until June 1953.

Rehnquist’s clerkship was interesting, challenging work, and it turned out to be very consequential in the path of his life. It was a powerful credential and valuable experience that helped him when, starting in 1953, he practiced law in Arizona. (He never made it to California.) It also made him interesting, at least, as he worked in Arizona and then national Republican party politics.

In 1969, President Nixon and the Senate appointed Arizona lawyer Richard Kleindienst to serve in the U.S. Department of Justice as deputy attorney general. Kleindienst then recommended, and Nixon nominated, his friend William Rehnquist to serve as assistant attorney general heading DOJ’s office of legal counsel. Rehnquist was qualified to lead its work providing constitutional advice to the executive branch because, among other experiences, he had been a Supreme Court law clerk.

Two years later, as President Nixon struggled to choose persons to nominate to two Supreme Court seats that had become vacant simultaneously, Assistant Attorney General Rehnquist’s name became part of the discussion.

Nixon’s early reactions, captured on tape, were not enthusiastic.

Then advisers informed Nixon that Rehnquist had clerked for Jackson.

That, in an instant, clinched a nomination for Rehnquist.

Richard Nixon had, since his 1930s law student days, admired Robert H. Jackson greatly. Good enough to clerk for Jackson was, to Nixon, good enough to serve on the Supreme Court.

I am very saddened that Eleanor Jackson Piel, a great New York City lawyer, has died at age 102.

Mrs. Piel, as some called her, was a trailblazer, including as a brave civil rights lawyer. She also was extraordinarily wonderful as a person. I was lucky to know her a bit, including from her generous visits to speak to law students at St. John’s University. She always was “blow-the-crowd-away” awesome—she was the lawyer and the person we all wanted to be.

I recall speaking to Eleanor about Justice Robert H. Jackson. She admired him, including for his dissenting opinion in United States v. Korematsu and for his work as a post-World War II war crimes prosecutor (as she had been too, in Tokyo).

I did ask her the obvious question.

She answered no—they were not related.

Margalit Fox’s great New York Times obituary today confirms that Eleanor’s Jacksons were not Robert’s Jacksons.

His Jacksons were 18^th century Scottish-Irish immigrants to the U.S.

Her Jacksons were made in America. Sometime before Eleanor was born in 1920, her father Louis Koussevitzky emigrated from Lithuania to the U.S. Upon arrival, he changed his surname to Jackson. Eleanor explained that Louis picked “Jackson” because it was the most American surname that he could conceive.

Maybe that was true at the time.

I hope that today this idea is more amusing than true.

I know that if the U.S. today is closer to its egalitarian ideals, that progress is due to the work of heroes like Eleanor Jackson Piel.

* * *
Some links—

• Today’s New York Times obituary:

https://www.nytimes.com/2022/11/28/us/eleanor-jackson-piel-dead.html;

• Video of a 2013 television interview:

https://www.youtube.com/watch?v=KTQ6zZd5iZQ

• A 2009 Berkeley Law profile:

https://www.law.berkeley.edu/article/one-tough-case/; and

• Audio of Eleanor Jackson Piel’s oral argument to the U.S. Supreme Court in Adickes v. S.H. Kress & Co. (she won):

https://www.oyez.org/cases/1969/79

At the United States Supreme Court, today is “First Monday,” the start of the Court’s new term.

Justice Ketanji Brown Jackson, the Court’s newest member, has been an associate justice since summertime—after receiving her commission from President Biden on April 8, Justice Jackson took the Supreme Court oath and began to serve as a justice on June 30. She worked through the rest of the summer in preparation for the coming term. Justice Jackson’s investiture ceremony was last Friday. This morning, she, with colleagues, took the bench for the first time to hear oral arguments.

In conjunction with Justice Jackson’s investiture, people who visited the Supreme Court took photographs of her chambers (office) door, and specifically her “JUSTICE JACKSON” nameplate, and then shared their photographs widely. Here is one example—

In reaction to seeing “JUSTICE JACKSON” on the door of a U.S. Supreme Court justice’s chambers, some people then asked, I know not entirely seriously, whether this shiny, new-looking nameplate is that same one that was on the door of Justice Robert H. Jackson’s chambers during his Court service (1941-1954).

It is not. Justice Ketanji Brown Jackson’s chambers door nameplate does not include stray letters—“MR.”—that were on Justice Robert Jackson’s door, and that have nothing to do with being a Supreme Court justice.