Simon Sobeloff

Simon Sobeloff  is a revered historic figure in the Baltimore Jewish community, most particularly within the legal community. The state-wide Jewish law society is even named after him.  In addition to stints in private practice, Sobeloff held a variety of significant public posts: Deputy Baltimore City Solicitor, U.S. Attorney for the District of Maryland, Chief Judge of the Maryland Court of Appeals, U.S. Solicitor General, and, ultimately, judge and then Chief Judge of the United States Court of Appeals for the Fourth Circuit.

Since he died right before I began law school, I did not have the opportunity to meet him or to hear him speak. However, I am aware of two incidents in his life which have relevance today.

The first occurred in 1930. Maryland Senator Goldsborough recommended to the U.S. Attorney General that Sobeloff be appointed as the U.S. Attorney to replace the incumbent who was leaving to become the Federal Director of Prohibition. While there was wide support for Sobeloff among the leaders of the Bar, the junior federal judge, William C. Coleman, declared his opposition. He refused to state his reasons publicly, remarking only that he opposed the candidate along “general lines.”  In a letter to the Attorney General, he stated the specific grounds for his objection. He believed it inappropriate for a Jew to hold the office of District Attorney because the “job called for a person of some social standing, otherwise he could not attract the right kind of assistants,” and besides, there were so many Jewish bootleggers in Baltimore, that he thought it “unwise to appoint a Jew.”  See here.

Coleman was saying about Sobeloff then pretty much what Donald Trump said in 2016 about Federal District Judge Gonzalo Curiel:  Curiel had “an absolute conflict” in presiding over the litigation given that he is “of Mexican heritage” and a member of a Latino lawyers’ association.  (Actually, not exactly what Trump was saying: Coleman claimed that Sobeloff would be biased in favor of his co-religionists. Trump’s position was that Curiel would be biased against him because of, well, Trump’s demagoguery directed against persons of Mexican heritage.)

In 1944, Coleman blocked the petitions for naturalization brought by five individuals who were refugees from Germany. The following facts are drawn from the opinion in the case brought in the Fourth Circuit by Sobeloff, then in private practice, on behalf of these individuals to force Coleman to grant their petitions.  See Schwab v. Coleman, 145 F.2d 672 (1944).

All five individuals were natives of Germany who left that country after Hitler came to power. Coleman:

refused to pass upon their applications and continued the hearings thereon because of a policy which he has adopted not to grant citizenship during the war to German enemy aliens who have left Germany since the beginning of the Nazi regime, except in the case of members of our armed forces.

The individuals were:

[A] Rabbi of a Hebrew Synagogue in Baltimore. Two of the others [were] a noted ophthalmologist, attached to the Wilmer Clinic of Johns Hopkins Hospital, and his wife. Another is a woman whose father [was] dead, whose mother [was] in a German concentration camp, who [had] no relatives in foreign military service, who [had] three cousins in the armed forces of the United States and who [desired] citizenship in order that she herself [could] join the Women’s Army Corps. The remaining applicant [was] a trained nurse, the wife of an officer in the United States Army.

In a written opinion, Coleman gave as a reason for refusing to allow naturalization the concept that:

unless it can be ascertained beyond all serious doubt that [their] attachment [to the United States] is complete and not divided, then, in time of war, it is best to postpone final action in cases of those who are nationals of a country with which we are at war, until the war is ended.

Needless to say, the Court of Appeals was flabbergasted. While it did not actually issue the writ of mandamus, it gave Judge Coleman a gentlemanly hint:

[W]e are of opinion that Judge Coleman should proceed forthwith to pass upon the petitions for naturalization and that petitioners are entitled to the writ of mandamus prayed. It is clear, however, that the learned judge has refused to act upon the petitions merely because of an erroneous view of the law applicable; and we assume that it will not be necessary that the writ of mandamus actually issue requiring him to act, now that this court has passed upon the questions of law involved. Order will accordingly be entered that petitioners are entitled to the writ but the writ will not issue until further order.

Judge Coleman took the hint and allowed the naturalizations to proceed.

Of course, blatant discrimination by a bigoted judge was not the only impediment faced by those seeking asylum in this country. There was also resistance in the executive branch to those seeking asylum. Just this week we learned that:

Attempts by Anne Frank’s father to escape the Nazis in Europe and travel to the United States were complicated by tight American restrictions on immigration at the time, one of a series of roadblocks that narrowed the Frank family’s options and thrust them into hiding.

Yet, today, we again have an administration imposing tight restrictions on those seeking asylum.  The Attorney General has issued a ruling making it difficult for those facing brutal domestic violence to find asylum here.  The Justice Department has announced that, in order to observe a court order limiting the period of time that minor children could be interned separately from their families, it would henceforth simply intern entire families.  And, of course, we have the President of the United States, now supported by the Supreme Court, inveighing against, well, against anyone who can be viewed, as Jews were in 1944, as “the Other.”

In 2016, Jews voted overwhelmingly against Donald Trump.  I do not doubt that their personal memories of bigotry and demagoguery directed against them, their parents, or their grandparents was a significant factor.

I would hope that a few of them, at least, may have cast their vote because they recalled the example of Simon Sobeloff.

Update

This evening, Judge Dolly M. Gee of the U.S.D.C. C.D.Cal. held that there was no basis to amend a longstanding court decision that forces the government to avoid holding migrant children for longer than 20 days, turning aside the motion made by the Justice Department and referenced above.