Silverman: A federal judge warns how partisan affiliations can threaten democracy 

Boulder hosted a provocative speech last week. Judge Stephen Higginson of the 5th U.S. Circuit Court of Appeals warned about the grotesque repercussions of affiliating with fascism at his John Paul Stevens Lecture, hosted by the Byron White Center for the Study of American Constitutional Law at the University of Colorado School of Law.

Higginson’s insights carried extra weight as a former law clerk to Colorado’s native-born CU football star, Associate Justice White. Emphasizing the need for inclusivity in legal and social spheres, Higginson urged attorneys and judges to reflect on exclusionary affiliations and their impact on society.

“Justice White was allergic to affiliations,” Higginson explained, “even to his own past when he was known nationally as ‘Wizzer’ from his football days.” On Halloween 2011, the U.S. Senate voted unanimously (88-0) for former DOJ prosecutor Higginson’s appellate court nomination.

Higginson praised Justices White and Stevens for their independence and egalitarianism, attributes he linked to their World War II military service. He noted that many of our most outstanding judges, who steered America away from racial discrimination and religious domination, went to war to fight fascism.

Higginson cast shade on the Federalist Society, which has produced attorneys and judges with political and religious entanglements. My friend and fellow columnist, Judge J. Michael Luttig, told me he’s conservative but never affiliated with the Federalist Society. His brilliant New York Times column eloquently urges attorneys to cast off exclusionary affiliations.

At Harvard in 1963, Higginson studied the Nuremberg war trial transcripts. Now the powerful Presiding Judge of the United States Foreign Intelligence Surveillance Court of Review, Higginson’s lecture focused on the Allies’ prosecution of Nazi lawyers and doctors.

Now a federal judge assigned to New Orleans, Higginson analogized to 1960s Louisiana lawyers who opposed desegregation and vilified heroic 5th Circuit District Judge Skelly Wright. Higginson spoke of Southern attorneys being “inhibited and constrained by their professional circumstance.” 

Higginson had us consider German lawyers a century ago who chose to affiliate with “a charismatic strongman who promised to make Germany great again. Every defendant at Nuremberg made that choice.”  

Having studied the Nuremberg trials, Higginson concluded, “They didn’t make that choice out of ignorance or indifference. They largely made it out of ambition, the consequence of which two decades later put them on trial and led many to execution.”

Higginson further explained, “Allegiance to National Socialism gave the Nuremberg defendants brutal professional advantage, specifically the elimination of competition. Jewish doctors and lawyers were delicensed, giving non-Jews professional advantage.”

We were reminded how the Third Reich “revised Germany’s Oath of Office so that state officials no longer swore loyalty to the German constitution, but instead swore loyalty to Hitler.”

Higginson’s warning extended to medical professionals. He said he was horrified by the Nazi Physicians League. “Think about that as an affiliation! A parallel medical society networked into the Nazi party. Can you think of anything more destructive of a profession or a religion than that type of political entanglement and control?”

He continued, “As glaring as the Nazi Physicians League, there was a National Socialist League of Law Guardians. It emerged yet again as a parallel professional society. And it became a Nazi organization with over 100,000 members affiliating with it. I hope you see the parallel. Both professions collapse when parallel societies emerge that are entangled with politics.”

Higginson explained his motivation. “My focus is on cruelty inflicted by judges inside Germany against persons that judges labeled as different or as enemies of the state.” 

Higginson described “harsh summary judgment rulings from what were called people’s courts, which had been set up with expedited procedures and rules of evidence with limited or sometimes no right of appeal. And even then, when the people’s courts weren’t harsh enough, the executive branch had authority to nullify sentences that were seen as too lenient and to execute defendants. In other words, cruel judges could be overruled when they weren’t cruel enough.”

Higginson’s warning was unequivocal: “Never pursue ambition, affiliating with factions and groups that demean others as different, as less patriotic, as less worshipful. or because they don’t adhere to the correct philosophy.” 

Higginson emphasized that our rule of law and Constitution largely depend on the good faith of American leaders. Despite being drafted in a revolutionary context, President George Washington recognized that the Constitution’s endurance relied on a “spirit of amity and mutual deference.” Higginson also cited President Lincoln, who “refused to sacrifice equality for advantage.”  

The judge’s message underscores the critical importance of professional integrity and the perils of political entanglement in legal and medical fields. All citizens should consider the perils of exclusionary affiliations.

Beware leaders demanding personal loyalty over allegiance to the Constitution or the people. It’s crucial to scrutinize affiliations that seek to exclude or demean others based on race, philosophy, patriotism or worship differences.

Higginson’s historical lessons are timely. We must elect candidates who embody the principles of inclusivity, integrity and adherence to constitutional values. We must heed all the lessons of Nuremberg.

The choice is ours. Professionals must make good choices when voting and affiliating.

Craig Silverman is a former Denver chief deputy DA. Craig is columnist at large for The Colorado Sun and an active Colorado trial lawyer with Craig Silverman Law, LLC. He also hosts The Craig Silverman Show podcast.

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