Insurance Coverage attorney Dan D. Kohane spoke on his experiences as a first-generation American and important legal policy issues while attending the 80th Association of Defense Trial Attorneys (ADTA) annual meeting in Ashville, North Carolina on August 12, 2021. You can read the transcript of his speech below.
Protecting Lives through the Rule of Law
Dan D. Kohane
Hurwitz & Fine, P.C.
As presented to the Association of Defense Trial Attorneys
August 12, 2021.
I am a first-generation American. I am the first of my family to be born in the United States of America. I am here because of the collapse of the rule of law and the subsequent victory over that collapse.
When we talk about the rule of law, it is worth defining.
What is it? The World Justice Project describes it this way: It is a durable system of laws, institutions, norms, and community commitment that delivers accountability, just laws, open government, and accessible and impartial justice.
As a young boy, I had no idea how it happened that I grew up in the United States. Over my life and over my career, I learned that I am here because of the rule of law, and it is because of my respect for the rule of law for an independent judiciary, my love and admiration for our justice system and because of my affection for lawyers, that I am before you today.
I had the honor and privilege of serving as the president of the National Foundation for Judicial Excellence (NFJE) from July 2019 to July 2020, and just completed my term as Board Chair.
When I assumed the presidency, at the conclusion of the 2019 Symposium, I had the opportunity to speak to 140+ appellate judges from about 38 states, as the nation was divided, as it is now, on so many issues, including immigration. I took the opportunity to share my observations about the importance of the rule of law. I was asked to reprise those remarks here and I am happy to do so, with some slight modifications and perhaps some additional reflections.
I stand before you, my friends, as a 40+ year lawyer, speaking to brothers and sisters who respect the need for the preservation of the rule of law and the need for an independent judiciary.
Indeed, I was the first of my family born in the United States. My story may not be very different than that of your grandparents or great-grandparents. It reflects the challenges facing oppressed people in foreign countries and the blessings of this great nation.
My parents, both children of a Jewish family, were born in the second decade of the last century in Germany. They were Germans, their parents were Germans, and they were Jews, and they were citizens. Like all citizens, they were to be protected, or they should have been protected by the rule of law. You know the truth from that time. For Jews and others, it was not to be.
As a teenager, my father was an agitator as anti-Jewish laws started to become the norm and at the urging of people who “knew,” ended up fleeing the country, by himself, in 1936, to Palestine at age 18. He did not see his parents again for almost 12 years, until 1948.
My father’s parents were able to escape the destruction of the rule of law and fled to Italy where they were protected by wonderful Italian Catholics in a detention camp for four years. They left behind their family, almost none of them survived. Both my maternal and paternal grandparents lost virtually every member of their families, brother and sisters, parents, uncles and aunts, all German citizens, all of whom were promised the protection of the rule of law.
While the United States committed itself to freeing Europe from the German onslaught, here, the U.S. government, stood silent, and in many ways, closed its borders to immigrants, men, women, and children who were fleeing oppression.
On November 25, 1942, many American newspapers published reports that two million Jews has already been murdered. When the US State Department was notified, officials there claimed that the planned murder of European Jews was merely a “war rumor” — what some today would call “fake news” — yet after investigation, even the US government confirmed the atrocities.
Despite the confirmation, despite the allied government releasing a “Declaration on Atrocities” in December 1942, the allies promised only to punish the criminals after the fighting stopped; they made no promise to initiate rescue efforts.
There is compelling evidence that a fear of antisemitic backlash coupled with antisemitism in the highest levels of the US government helped seal the borders. In many ways, the chants we have heard – and still here -- about wide-open borders and undesirable immigrants are echoes of the voices heard in the 1940’s.
Pressure was mounting on FDR to open the borders, to allow the Rule of Law to protect the oppressed.
The Nazi Blitzkrieg was creating refugees by the millions as it raced across Europe. Jews, because they were Jewish, and any others who ran afoul of the Nazi regime were killed outright or sent by rail to prison camps like Auschwitz to be killed or worked to death.
Finally, with the encouragement of Eleanor Roosevelt, in 1944, with the tide of the war turning the Allies’ way, President Franklin Roosevelt made a symbolic gesture. His Secretary of the Interior, Harold Ickes, sent Special Assistant Ruth Gruber to Italy to bring back nearly 1,000 war refugees to America. The project was known as Operation Safe Haven.
The 982 men, women and children had been specially selected for the trip — they were admitted not as refugees but as political internees. Said Gruber, “The government officials making the selection chose families and survivors with skills that could help run a camp in America. The first priority was refugees who had been in concentration camps and escaped.” This small band of 982 had no legal right to be in America – except for President Roosevelt’s invitation. He promised a skeptical and somewhat hostile Congress that they would go back home when the war was over. In fact, the refugees had to sign a document to that effect.
It took the group two weeks to cross the ocean aboard the USS Henry Gibbins, a troop transport ship, fighting limited space conditions, seasickness, and extreme heat.
My father’s parents, Moses and Helena Kohane, were on that ship and that was how my family came to these United States. The SS Gibbons landed in New York harbor — it being a political event, was reported by The NY Times — and then taken by bus to upstate New York.
For a year, my paternal grandparents were quarantined in the only European refugee camp during WWII, Operation Safe Haven in Oswego, New York, north of Syracuse. When the War ended, in 1945, instead of being sent back to Europe, Congress succumbed to pressure and passed a law that permitted those that had family in the US to become naturalized Americans. My father’s younger brother, my Uncle Henry, by this time had left a children’s camp in England and he and his young wife had made it to Brooklyn. My grandparents were taken out of Oswego, crossed the border into Canada at Niagara Falls, and then immediately re-crossed into New York and that was how my father’s parents, supported by the rule of law, were processed. By the way, in Oswego, New York, the Operation Safe Haven Museum commemorates those interned there and my paternal grandparents’ name are engraved on a plaque there.
The other side of my family, my mother’s parents, and also escaped into Palestine. My mother was 12 years old at the time. An “A” student before the Nazi’s took control, she suddenly failed all of her courses simply because she was a Jew. None of her friends would talk to her, a change that haunted her throughout her life, until she passed at 95 years young. The family they left behind in Germany succumbed to the collapse of the rule of law and were caught up in the horror of the holocaust. My maternal grandparents came to Palestine with their children, including my mother, her bother and sister. My parents met and married in British-run Palestine, my older sister was born in Israel and then my parents, as immigrants, moved to the United States in August of 1952. My mother smuggled me into the country in-utero. My parents and sister became naturalized citizens. By fate, since I was born in the United States, I was born a citizen.
But for honor and respect of the rule of law, I would not be standing here before you. Perhaps I would not be standing anywhere.
The rule of law had collapsed in Germany, starting in the late 1920’s and the Nazi government, wrapping its arms around that collapse, tried to create a new society, new Reich, with a government recognizing that to flourish and survive, it had to continue to reject the rule of law that protected its citizens.
Eventually, with many millions of deaths as a backdrop, that government was defeated, and the rejection of the rule of law was crushed.
The lesson is clear, the protection and preservation of the rule of law is paramount to freedom.
I told the appellate judges and justices, that they are the guardians and protectors of the rule of law and fight that battle every day. As lawyers, we have the same role, to remember that the rule of law is paramount and we have an obligation to respect it, to honor it and to maintain it. We cannot allow partisan politics, from either side of the aisle, to cloud our dedication to the rule of law.
As Dwight Eisenhower said, the “[c]learest way to show what the rule of law means to us in every day life is to recall what has happened when there is no rule of law.” Another put it this way, the “bedrock of democracy is the rule of law and that means we have to have an independent judiciary who can make decisions independent of the political winds are blowing.”
When I started out as a lawyer, I did not consider how important it was to preserve and protect the independence of the judiciary and rule of law. Forty years of practice has taught me what is now so very clear. As I started trying cases, handling appeals, and getting involved with local and state bar associations, the ADTA and its sister organizations, did I finally comprehend the connection between what my parents and grandparents suffered and what goes on today.
As a trial lawyer and an appellate lawyer, and an active participant in the quest for civil justice, I learned the role of independent appellate courts and the lawyers who serve those courts, in preserving the rule of law, in making certain that the political winds blowing, the passion of public discourse, the biases and prejudices that often lead to the rule of law being abrogated, cannot and will not rule the day.
We must protect our citizens from those who want to reject the rule of law. We must fight for civil justice and refuse to allow those who might encourage a different approach to democracy and democratic principles to win.
The courts can do this because of their independence from the legislature and from the executive and outside influences.
Alexander Hamilton, in Federalist 78, spoke so eloquently about the critical nature of judicial independence, after he described the powers of the executive and the legislative branches:
“The general liberty of the people can never be endangered by the judiciary; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. There is no liberty, if the power of judging be not separated from the legislative and executive powers."
“And it proves, in the last place, that as liberty can have nothing to fear from the alone but would have everything to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter. An independent judiciary is the citadel of public justice and public security.”
The NFJE exists – as does the ADTA and its sister organizations, to address the important legal policy issues affecting the law and civil justice by proving meaningful support and education for an independent judiciary to protect the rule of law.
Before I sit down, I want to take one moment to speak to you about how the NFJE keeps its lights on and how it can bring 150 state appellate judges, all expenses paid by the NFJE, to Chicago once a year for education.
Over 75% of the donations that support the NFJE are funded by contributions from lawyers, state and local defense organizations, foundations, and not-for-profit organizations. Think about that: lawyers and law firms, who dig deeply into their pockets to support the NFJE, are not even invited to its judicial symposium. You may not know who they are, they don’t secure business or referrals for their participation, and they do not receive any financial benefit contributing
So why do they contribute the many thousands of dollars to fund the NFJE?
They do so because they know the return on investment is an educated and enlightened judiciary. For 17 years, the NFJE has sounded the clarion trumpet in its fight to provide meaningful support and education to support an independent judiciary, the defenders of the rule of law. We, as lawyers, as citizens, as Americans, understand and embrace how important this cause is to the legal profession and to the lawyers who defend litigants in civil lawsuits. We need a judiciary, independent, enlightened, educated, to assure even-handed justice and who will, at the end of the day, assure the rule of law is never compromised.
For those who may not know the NFJE, an organization supported by the ADTA, FDCC, IADC and DRI, established in 2004, it is a charitable and educational organization that has at its goal, the education of state court appellate judges and justices and to offer a defense perspective to the rhetoric offered by the plaintiff’s bar in the Roscoe Pound Institute. We just completed our 17th annual judicial symposium, live, in Chicago. Last year’s was virtual but quite well attended.
Take a moment and point your browser to NFJE.net. On the top right-hand corner of the home page, you will see a DONATE button. If you can afford $100 to help protect the rule of law, the NFJE would use those resources well.
I thank you listening, for being here, for doing what you do, for loving and honoring our Constitution and for protecting the rule of law.
Dan D. Kohane
Hurwitz & Fine, P.C.
As presented to the Association of Defense Trial Attorneys
August 12, 2021.