"Non-Germans" Under the Third Reich (135 page)

68.
Bumke was not thought to be vulnerable with regard to Party-political affiliations. It was not known that he was a member of the Deutschnationale Volkspartei from 1919 until at least 1929, and he was therefore able to prevail against the candidates of the “dominant parties,” Radbruch (SPD), Landsberg (SPD), Marx (Center) and Koch-Weser (DVP). The right-wing press in particular had stirred up public opinion against these candidates and demanded that all “Party-political influences” be eliminated (cf.
Das Deutsche Tageblatt
, January 30, 1929;
Kreuzzeitung
, January 31, 1929), sources and quotes from Kolbe,
Reichsgerichtspräsident Dr. Erwin Bumke
, 57 ff.

69.
Of the State Superior Court presiding judges and chief public prosecutors in office on November 1, 1931, only the chief public prosecutors in Marienwerder and Naumberg and the presiding judge of State Superior Court, Celle, were still in office by the end of 1933 (
Taschenkalender für Verwaltungsbeamte
[1932], 521, 92 and 1934, 766 ff.), but no grounds are given for their leaving; cf. also
Handbuch der Justizverwaltung
(status on January 1, 1942) and lists of State Superior Court presiding judges and chief public prosecutors in BA R 22/1462 (status in 1938) and 4402 (status in 1942), which show that immediately after the seizure of power in 1933, the following were removed from their posts either by pensioning off or temporary retirement: the
Kammergericht
(Prussian Supreme Court [KG]) presiding judge of Berlin; the State Superior Court presiding judges of Naumburg, Kassel, Kiel, Cologne, Düsseldorf, Stettin, and Hamm; and the chief public prosecutors at the Prussian Supreme Court and State Courts of Appeals of Berlin, Breslau, Königsberg, Kassel, Cologne, and Hamm. In Prussia, too, State Superior Court presiding judges, chief public prosecutors, and departmental civil servants were transferred to other departments (in some cases to lower-ranking posts); cf. statistics in
Handbuch der Justizverwaltung
.

70.
Handbuch der Justizverwaltung
.

71.
Although the
Handbuch der Justizverwaltung
states that, of the State Superior Court presiding judges and chief public prosecutors in office on January 1, 1942, only two judges and four prosecutors were pre-1933 appointees, this does not carry much weight since there are no details about the officials who were replaced in 1933 or later or about the reasons for their replacement (such as political grounds, death, retirement age). Nor do the personnel files contain details of the reasons for retirement (other than the attainment of the age limit). With the exception of Prussia, reference books for the judiciary or the administration covering the period up to 1933 giving information about personnel in the
Land
Justice Administration (cf. note 69 above) have not been tracked down.

72.
Johe,
Die gleichgeschaltete Justiz
, 65.

73.
Handbuch der Justizverwaltung
; personnel lists for 1938 and 1942 (BA R 22/1462, 4402).

74.
Already before 1933, Oldenburg, Thuringia, Brunswick, Anhalt, Lippe, Mecklenburg-Schwerin, and Mecklenburg-Strelitz had Nazi-led governments (Diehl-Thiele,
Partei und Staat im Dritten Reich
, 37 f.).

75.
Apart from the purges following the so-called Professional Civil Service Code of April 7, 1933. Similar intolerance was apparently shown toward civil servants who had business connections with Jews (circular from Reich Ministry of Justice of January 7, 1936, Allgemeine Erlaßsammlung, BA, with the instruction to indicate which officials had business connections with Jews and when such ties could be broken). As a rule women were excluded from the judiciary from 1936 onward (circulars from the Reich Ministry of Justice on January 10 and 16, 1936 [ibid.]).

76.
Kolbe,
Reichsgerichtspräsident Dr. Erwin Bumke
, 219 ff.; news item in
DJ
(1943): 127, 157, with detailed report about the new officials. For more about the changes in personnel in the State Superior Court district of Cologne, see Wolfram and Klein,
Recht und Rechtspflege in den Rheinlanden
, 231 ff., 243 f.; see also above, note 66.

77.
According to the statement by Schlegelberger to American Military Court no. 3 in Nuremberg on June 27, 1947 (protocol d, 4315 ff., 4355, in BA All. Proz. 1, XVII A 58), after Thierack’s appointment the whole top echelon of the ministry, with the exception of the Budget Department, was replaced. Of 22 State Superior Court presiding judges, 11 were replaced, along with 4 chief public prosecutors; also dismissed were all judges and public prosecutors who were not totally Aryan, as well as all non-Party members who worked in the ministry. According to a list sent by Thierack to the Reich minister and head of the Reich Chancellery in a letter dated October 20, 1942, 75 judges and public prosecutors were to be pensioned off because of non-Aryan descent, mixed marriages, lack of cooperation with the Party, failure to join the party, or “pro-Jewish or pro-Polish” behavior. Bormann and Lammers assented in a letter of November 3, 1942 (quoted in Steiniger and Leszczy
ski,
Das Urteil im Juristenprozeß
[1969], 164).

78.
Johe,
Die gleichgeschaltete Justiz
, 65 ff.

79.
Details from personnel files and documents on 25 State Superior Court presiding judges and 19 chief public prosecutors held in 35 State Superior Court districts, Federal Ministry of Justice.

80.
RGBl.
I 529.

81.
An official Party publication of the NSDAP on the verdict of the Reich Supreme Court of December 23, 1933,
DR
(1934): 19;
JW
(1934): 24; reproduced also in Schorn,
Der Richter im Dritten Reich
, 868.

82.
On this and the foregoing, see Kolbe,
Reichsgerichtspräsident Dr. Erwin Bumke
, 212 ff., 219 ff., with examples.

83.
More details in Johe,
Die gleichgeschaltete Justiz
, 68 ff., especially 70 n. 35, regarding the presiding judge of State Superior Court Dr. A. Engel, who took up his office on September 16, 1933; he was regarded as a “representative of the older generation of lawyers” and precisely for this reason appeared to be the right man for the job, since he conveyed the impression that the program of the NSDAP “was more a return to national tradition than a revolution” (69); cf. also Kolbe,
Reichsgerichtspräsident Dr. Erwin Bumke
, 222, with regard to the behavior of members of the Reich Supreme Court and its presiding judge Dr. E. Bumke.

84.
Kübler, “
Der deutsche Richter und das demokratische Gesetz
,” 104 ff.; Schorn,
Der Richter im Dritten Reich
, 6 ff.; cf. also Federal Supreme Court of April 30, 1968,
NJW
(1968): 1339 (Rehse verdict).

85.
Cf. a decree issued November 10, 1934, by the Baden Ministry of Justice on the conditions of employment of judicial officials, according to which the minister was to get information through the Party on the political attititudes of judicial officials. Key posts, particularly those dealing with personnel matters, could be filled only by the politically reliable, who were members of the NSDAP (see Weinkauff and Wagner,
Die deutsche Justiz
, 99). He would deal ruthlessly with civil servants who tried to disrupt the “work of construction … while hiding behind a pretence of cooperation” and, if necessary, remove them from office (99). According to a decree of the Reich Ministry of the Interior issued on August 1, 1940, the higher Reich legal authorities were instructed to promote in particular the careers of those who held the highest decorations for service in the war and to the Movement and also holders of rescue medals (cf. Secretary of State Freisler at a discussion in Berlin, minutes, undated—probably May 1942—BA R 22/4162, sheet 91). But to gain promotion to higher-ranking posts, mere membership in the Party was sufficient. Cf. the list of promotion candidates sent by the Reich Ministry of Justice to the Reich Ministry of the Interior on February 7, 1939, which proposed the elevation of 4 chief public prosecutors, 2
Kammergericht
officials, 1
Oberregierungsrat
(senior executive officer) and 2
Landgericht
directors—all of them working in the Reich Ministry of Justice—to
Ministerialräte
(departmental principals) in violation of the regulations, because they were old Party members (usually since 1932) or high-ranking officers in the SA or Freikorps volunteers (BA All. Proz. 1, XVII B 6, 147 ff.). For more details on the reform of personnel policy, see Freisler, “Personalpolitik im höheren Justizdienst” (1939), who fulminates against promotion for reasons of religious affiliation, against the “unpolitical attitude” of the officials, against “parochialism” and the “cult of seniority”; see also Kennert, “Der Einsatz deutschen Verwaltungspersonals in den eingegliederten und besetzten Gebieten und seine zentrale Lenkung,”
DVerW
(1940): 113 ff. For an account of the disciplining of antagonistic judges, see
Führerinformationen
no. 116, September 2, 1942 (BA R 22/4089); Schorn,
Der Richter im Dritten Reich
, documentary section.

86.
See, for example, the corresponding appeal of the Prussian Judicial Association of April 21, 1933, and the appeal of the Law Association of Württemberg of April 27, 1933, to those “who sensed a deeply felt affinity with the new ‘Germany and its Führer’ ” (quoted in Weinkauff and Wagner,
Die deutsche Justiz
, 109). Cf. circular from Reich Ministry of Justice of December 19, 1937 (121), with the demand to all officials to commit themselves to the Movement and its goals; also, decrees of February 14, 1935 (the introduction of the Hitler salute “by raising the right arm” and simultaneously clearly uttering the words “Heil Hitler”), of March 28, 1936 (the creation of personal files recording the racial origins and past and present political affiliations and membership in groups and associations of higher judicial officials), and of August 22, 1938 (120 f.); cf. also Schorn,
Der Richter im Dritten Reich
, 23 and 37.

87.
Weinkauff and Wagner,
Die deutsche Justiz
, 112, with examples.

88.
Speech by Thierack on August 29, 1942, in Berlin (notes in BA R 22/4199).

89.
Cf. H. Boberach, ed.,
Richterbriefe, Dokumente zur Beinflussung der deutschen Rechtsprechung 1942–1944
(1975) (reviewed by Majer,
ZRP
[1977]: 115 ff.).

90.
For details, see Johe,
Die gleichgeschaltete Justiz
, 119 ff.

91.
Letters from the Reich Ministry of Justice to the head of the SIPO and the SD on August 10 and 17, 1943; report by Dr. Drescher to the Reich Ministry of Justice on August 10, 1943 (BA R 22/4204), report of the presiding judge of State Superior Court, Hamburg, to the Reich Ministry of Justice on April 12, 1944 (BA R 22/3366).

92.
The State Superior Court presiding judges and chief public prosecutors (like most of the judges and public prosecutors) were all members or officials of the Nationalsozialistischer Rechtswahrerbund (NSRB) (e.g.,
Gauführer, Gaugruppenwalter, Gaurechtsamtsleiter
) and of other National Socialist organizations (e.g., Reichsbund Deutscher Beamter [RDB]) and in some cases held high office in the Party jurisdiction (SA judges, etc.) (details from sources cited in note 79); for more about the leading judicial officials of the State Superior Court districts of Danzig, Leitmeritz, and Hamburg, see also Johe,
Die gleichgeschaltete Justiz
, 230.

93.
Details from sources cited in note 79.

94.
Cf. Weinkauff and Wagner,
Die deutsche Justiz
, 109.

Introduction. III. 3. The Principle of
Völkisch
Inequality

1.
For an account of the origins and nature of the term
Volksgemeinschaft
(national community) in the National Socialist doctrine, see Stolleis, “Gemeinschaft und Volksgemeinschaft” (1972); Stolleis,
Gemeinwohlformeln im nationalsozialistischen Recht
(1974) (in each case with detailed examples); Stolleis emphasizes particularly that behind the idea of the community lay the belief in a supposed prehistoric harmony and the will to reestablish this harmony in history (
Gemeinwohlformeln im nationalsozialistischen Recht
, 27 f.).

2.
Schmitt,
Staat, Bewegung, Volk
(1939), 42; summarized in Stolleis,
Gemeinwohlformeln im nationalsozialistischen Recht
, 229 ff.

3.
Scheuner, “Der Gleichheitsgedanke” (1939), 255 f.

4.
“Führung als Rechtsprinzip” (1934).

5.
For further details see Fraenkel,
Der Doppelstaat
(1974), 221 ff., with examples; cf. Tönnies,
Gemeinschaft und Gesellschaft
(1926); H. Marr,
Die Massenwelt im Kampf um ihre Reform
(1934), 549 ff.