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Ninth Circuit Conference Focus on Internment Reverberates Today

Monday's opening day of the Ninth Circuit's judicial conference did not flinch at political subjects, with judges hearing an historical overview of three Supreme Court cases arising from the mass incarceration by executive order of 120,000 Japanese-Americans during World War II.

SAN FRANCISCO (CN) – U.S. Supreme Court Associate Justice Neil Gorsuch urged a crowd of judges, justices and new citizens to “tolerate the cacophony of democracy” at an immigration swearing-in ceremony Monday evening, marking the end of the first day of the Ninth Circuit Judicial Conference.

“Democracy depends on every one of us to hear and respect even those we disagree with strongly,” Gorsuch told the group of new citizens, who immigrated from nations including Brazil, Argentina, Ireland and India.

“In a government by and for the people, we have to remember that those with whom we disagree even vehemently still have the best interests of the country at heart,” he continued. “We have to remember that democracy depends on our ability to reason and work with those who hold very different convictions and beliefs than our own. We have to learn not only to tolerate different points of view but to cherish them. To cherish the cacophony of democracy.”

As Gorsuch’s remarks seemed in answer to deep political divisions running through the United States, the Ninth Circuit’s annual conference – held in San Francisco since for the first time since 1973 – features an agenda that could be considered a riposte to some of the policies of President Donald Trump, whose executive orders on immigration have landed him in conflict with the powerful circuit that has jurisdiction over much of the western United States.

Later in the week, judges are scheduled to hear programs on fake news, distrust in the election process, the balance between privacy and technological advances in the law.

The conference’s opening day did not flinch at political subjects, as earlier in the afternoon judges heard an historical overview of three Supreme Court cases arising from the mass incarceration by executive order of 120,000 Japanese-Americans during World War II.

Three Japanese-Americans – Fred Korematsu, Gordon Hirabayashi and Minoru Yasui – defied their detention orders, and their legal challenges were rejected by the Supreme Court. It wasn’t until the cases were reopened in 1983 and the convictions set aside by writ of coram nobis, or writ of error, that the three men found vindication.

Dale Minami, a partner at the San Francisco firm Minami Tamaki, criticized the Supreme Court’s Korematsu decision for deferring to the executive branch and the military and using national security as justification. A discredited report submitted by Gen. John DeWitt to the high court said Japanese-Americans were committing espionage in droves.

“The court gave almost complete deference to the military, and they refused to look at any underlying facts in the justification for the incarceration,” Minami said. “The duty of the courts is to judge any decision by any person on constitutional law – nobody is above the constitution. Those issues are still relevant today, as we well know.”

In a video address, Ninth Circuit Judge Wallace Tashima called the Korematsu case one of the 10 worst decisions of the Supreme Court.

Tashima and his family were interned during World War II in Arizona, when he was only eight years old.

“The problem is if it happens once, it can happen again,” he said. “What all of us should do, particularly judges, is guard against those kinds of things. It’s the main reason I think I wanted to be a judge.”


U.S. District Judge Marilyn Hall Patel, who vacated Korematsu’s conviction in 1983, said the case was particularly unsettling because the three men were actually U.S. citizens from birth.

“It wasn’t as if they were naturalized citizens or somehow got citizenship some other way, so that really sat hard with a lot of people, including myself, as to how something like this could happen to someone born in the United States,” Patel said – noting that she cried when the quiet and unassuming Korematsu spoke before the court.

“I don’t think there were any dry eyes in the courtroom, including yours truly,” she said. “It was hard to choke back the emotions because it was so palpable in the audience, that finally justice had happened.”

Karen Korematsu, who founded the Fred T. Korematsu Institute in honor of her father, said she heard about what had happened to her father as a high school student. A friend of hers delivered a book report on the internment camps that mentioned her father’s case. Karen said her father was reticent to talk about his experience when she asked him about it.

“He said to me it happened a long time ago, and what he did he thought was right and the government was wrong,” she said. “I could see this hurt going over his face.”

Ninth Circuit Judge Mary Schroeder, who wrote the opinion overturning Hirabayashi’s conviction in 1987, said she believed the case was purposefully designed to reach the appellate level when U.S. District Judge Don Voorhees strategically overturned Hirabyashi’s conviction for failing to report for internment – but upheld his conviction for dishonoring a government-imposed curfew on Japanese-Americans.

“I’ve always believed he did that deliberately in order to ensure an appeal, because he wanted the case to get to a higher level,” Schroeder said.

Schroeder, who wrote the opinion reversing Voorhees’s ruling, said the Ninth Circuit panel that heard the case was a special one comprising herself and Circuit Judge Jerome Farris and Chief Circuit Judge Ted Goodwin.

“Judge Goodwin had actually fought in World War II. He was on the invasion force that was to invade Japan when the atomic bomb was dropped. The opinion should have been assigned to him, but I don’t think he ever felt comfortable writing that opinion and I volunteered,” Schroeder said.

“Jerry Farris, like me, was an appointee of Jimmy Carter. He was one of the first African-Americans on the court, I was one of the first women on the court, so you had a panel consisting of a veteran from World War II, a white woman and an African-American man, and two of us had had personal experiences with discrimination and bias,” she added. “So I think that made a difference. I don’t think that case, if there had been a different panel, I’m not sure it would have had the same tone to it.”

Schroeder said the most memorable moment during oral argument occurred when the government’s attorney said they had known about the factual inaccuracies relied upon by the Supreme Court at the time.

“I said, ‘Why didn’t you do something about it?’ and his answer was ‘We didn’t think anyone cared,’” Schroeder said. “I think at that point there was a huge gasp in the courtroom. At that point, the result in the case was pretty well known to everyone in the courtroom. It’s been the most memorable case I’ve ever sat on, and I’ve been sitting on cases for a very long time.”

Patel said she was touched by the opportunity to address a matter of civil rights that still resonates today.

“If you’re a lawyer you’ve sworn to uphold the Constitution. And you love the Constitution. I mean, that’s our Bible,” she said. “And I’m concerned about what’s happening right now with the derogation of the Constitution in so many quarters, because that is the glue that holds this heterogenous society together.”

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