"Non-Germans" Under the Third Reich (11 page)

Membership in the NSDAP, naturally, played a considerable role in this process.
⁴⁶
The material for such certification, which became part of the individual’s permanent service record (and which represents in sum a treasure trove of contemporary terminology and rating categories for the researcher),
⁴⁷
was not collected in an ad hoc fashion, from case to case, but was compiled from the beginning, and more than that: the Party offices accumulated materials on “all civil servants,” “even when the appointment and promotion of a given individual was not yet[!] at issue.”
⁴⁸

These usurped rights of approval provided the basis for massive political influence exerted by the monopoly party on government personnel policy; negative statements by the Party, even in the area of private law, could lead—without any written authority—to dismissal.
⁴⁹

This was true in any case of the top positions in the Reich Chancellery, the Reich ministries,
⁵⁰
and the
Länder
but also of the rest of the internal administration sector, within which, as the Reich minister of the interior explained in an express letter to the Reich minister and head of the Reich Chancellery dated April 21, 1939, “the plan, from the very beginning, was to make use wherever possible of those candidates who had committed themselves to the Party even before the seizure of power.”
⁵¹
Similar standards were employed in the judicial system, even if the number of judges who belonged to the NSDAP before 1933 was vanishingly small.
⁵²
The numerous extralegal influences that the NSDAP was able to exert (arrangements with, desires of, and complaints from Party leaders and Gauleiter [the regional heads of the Party]) also played a large part, particularly in the judicial sphere
⁵³
—notably in so-called difficult districts (such as the high courts in the districts of Cologne and Nuremberg), in which certain department heads had managed to preserve their sense of legal propriety and made either no concessions or insufficient ones, to the NSDAP.
⁵⁴
From this direction also came the suggestion that a special high court be created for larger or “politically difficult” districts (
Gaue
), the head of which would need to be an “unconditionally reliable presiding judge on the high court with close ties to the Party, or else a chief public prosecutor with the same qualities.”
⁵⁵
However, appointments of “people with close Party affiliations” to such positions frequently failed to prove an entirely satisfactory choice, as shown, for instance, by the reports from the high court in the district of Cologne.
⁵⁶

Nevertheless, there was no wholesale replacement of personnel, if only because of the lack of applicants acceptable to the Party.
⁵⁷
However, a far more important reason was that, as other studies have already established, the makeup and attitude of the (senior) Civil Service was in its overwhelming majority Protestant-conservative,
⁵⁸
antiparliamentarian, authoritarian, and committed to the political right,
⁵⁹
so that a large part of the staff from the Weimar period—even those in leadership positions—could for the moment be kept in place.
⁶⁰
The consequence of this “metamorphosis,” since the time of the Kaisers, of the attitude “of liberal dignitaries into the temperament of reserve officers,”
⁶¹
was that the Weimar Republic was inwardly rejected by the great majority of civil servants, who almost unanimously hailed the new government, since they thought they recognized in the promises of the new system (of “order,” “authority,” “duty,” “honor,” etc.) a return to the authoritarian order whose “decline” they had incessantly bemoaned in the Weimar period.

In the legally initiated transfer of power, therefore, they saw merely a shift in political leadership, not a change in the political system, since the existing laws and other legal foundations remained in force and the previous officeholders, as we have seen, largely retained their positions. Thus—according to the exclusive orientation to written law then prevailing—there was no reason to assume that any significant changes had taken place in the judicial-administrative sector itself.
⁶²
As for the new regime’s demands, programs, and desires, these were smoothly integrated into the existing legal and administrative system. Plainly illegal plans and actions on the part of the leadership (for instance, the abolition of the principle of
nulla poena sine lege
) were resolved by compromise—concessions granted in individual cases for the sake of salvaging jurisdiction as such. This, however, as will be confirmed further on, actually accomplished the opposite, ending in the forfeiture of the constitutions foundations of administration and justice. That is to say, the best possible preconditions for ideological
Gleichschaltung
were already in place in 1933.

d. Coordination (
Gleichschaltung
) of the Reich Administration: The Example of the Judiciary

Examples of the domination of an administrative branch by the monopoly party without extensive changes in personnel are to be found, for instance, in the finance and economic administrations, the foreign service, and above all in the judiciary, which was the “first sovereign apparatus in the Third Reich” to carry out “the principle of the unity of Movement, people, and state in its personnel policy” (that is, transferring the professional judicial organizations to the corresponding corporative organizations of the Party, purging the personnel sector).
⁶³
To be sure, the justice ministers of the
Länder
were replaced at the time of the Nazi seizure of power.
⁶⁴
By contrast, the top-level positions in the Reich judicial administration (including the Reich minister of justice himself) show considerable continuity,
⁶⁵
which was not interrupted until 1942–43 when there was a decisive changing of the guard at the head of the Reich Ministry of Justice.
⁶⁶
Yet in this sector the initial lack of National Socialist leadership personnel is particularly obvious.
⁶⁷

As regards jurisdiction, too, a certain continuity was maintained, in that the presiding judge of the Reich Supreme Court, Dr. Erwin Bumke, who had held this office since 1929 and was highly regarded, remained at the head of the highest German court.
⁶⁸
By contrast, a certain reshuffling at the top of the high court districts took place in 1933, inasmuch as this can be determined from existing documents.

This is in any case true of Prussia, which had been governed since 1919 (with brief interruptions) by the parties of the so-called Weimar coalition (the German Social Democratic Party [SPD], Zentrum, the Deutsche Demokratische Partei) and to which fully thirteen of the then twenty-six high court districts belonged; there, the greater part of the presiding judges on the high courts and the chief public prosecutors were eliminated.
⁶⁹
Of the members of the Prussian Justice Examination Office, not one remained in office.
⁷⁰
Whether decisive changes in personnel took place in 1933 in the non-Prussian
Länder
as well cannot be stated with certainty.
⁷¹
In any case, a change in officeholders can be shown to have happened only in the presiding judgeships of the high courts of Hamburg
⁷²
and Zweibrücken, as well as in the offices of the chief public prosecutor for Hamburg and Darmstadt;
⁷³
in all likelihood, such replacements hardly occurred in other high court districts or, if they did, then to a much lesser extent than in Prussia, since the other
Länder
had been governed before 1933 by majorities of the so-called right-wing parties. In some, such as Thüringen, Oldenburg, and Brunswick, the National Socialists already sat in the government,
⁷⁴
so that presumably before 1933 NSDAP-loyal forces occupied the top positions, making any major reshuffling appear unnecessary.

Taken as a whole, then, the presumption seems justified that a significant, though not comprehensive, reshuffling of top positions in the high court districts took place in 1933; this was most likely true of judgeships to an even greater degree.
⁷⁵
Profound restructuring did not occur until the power transition at the head of the Reich Ministry of Justice occurred, in 1942, when the chief positions in the high court districts were almost all occupied by jurists possessing long experience as frontline soldiers and so-called leadership characteristics (“the judge as soldier of the Führer”),
⁷⁶
and numerous unpopular judges were dismissed.
⁷⁷
In the remaining court hierarchy, as well, the
Gleichschaltung
of 1933 affected mainly department heads; the greater number of judges and public prosecutors remained in office.
⁷⁸

This partial retention of old personnel and partial reshuffling of leading positions meant that the judiciary was integrated relatively smoothly into the new system and was generally able to display a loyal, if not altogether approving, attitude toward the National Socialist government.

Interesting in this connection is the high degree of social homogeneity among leading judicial officials. The group was defined by a strong esprit de corps, which presumably also contributed to the largely conformist behavior of the judicial administration. Thus, the majority of presiding judges on the high courts and chief public prosecutors came from the so-called upper middle class, more precisely from academic families (see table 1).
⁷⁹

From this perspective it would seem less baffling that there were almost no known protests against the countless arbitrary measures by the Party and the police—neither against the purges of Jewish colleagues from judiciary and administration by SA terror groups in March and April 1933, nor against the murders of June 30 and July 1 and 2, 1934 (so-called Röhm Putsch), and the law promulgated in this connection, the Law on State Self-Defense (
Gesetz über Staatsnotwehr
) of July 3, 1934,
⁸⁰
which declared the murders to be a matter of lawful “state self-defense”; neither against the abolition of the principle of
nulla poena sine lege
in connection with the Reichstag Fire trial, nor against the open attacks of the NSDAP on the corresponding December 23, 1933, ruling of the fourth high criminal court of the Supreme Court, which acquitted the defendant Torgler and his three Bulgarian Communist codefendants (“a plain miscarriage of justice”).
⁸¹
All of this revealed the attitude toward the Hitler regime that was already characteristic of the judiciary: acceptance of, and compromise with, illegal practices in individual cases for the sake of preserving formal jurisdiction—an approach that, however, played right into the hands of National Socialism,
⁸²
since it meant the piecemeal forfeiture of constitutional principles.

TABLE 1

Professions of the Fathers of Presiding Judges on the High Courts and Chief Public Prosecutors (and, in Parentheses, of Their Wives’ Fathers, Where Information Was Available)

In addition, it was precisely those judges of the older “generation of jurists” not seen as being National Socialists by conviction who frequently made particularly persuasive attempts to prove their loyalty and willingness to collaborate, both by means of professions of political loyalty
⁸³
and by administering justice in a way that managed to combine such loyalty with the traditional principles that codified the responsibility of the judge to the law (sec. 1, Judicature Code).
⁸⁴