Tuesday, December 08, 2009

First Annual Justice Gabbert Oral Argument Series

Korematsu v. United States -- Oral Argument Reenactment
Riverside Lawyer, Oct. 2009, at 24.

On August 12, 2009, to mark the 65th anniversary of Korematsu v. United States, 323 U.S. 214 (1944), the Fourth Appellate District, Division Two, of the Court of Appeal (in Riverside) hosted a reenactment of the oral argument in that infamous case followed by the reading of the decision by the Justices of the same court. The event marked the “Inaugural Justice John C. Gabbert Historic Oral Argument Series.”

Representing Fred Korematsu was Dean Erwin Chemerinsky of the UC Irvine School of Law. And Dean John C. Eastman of Chapman University School of Law represented the United States.

As the two learned counsel were entering the courtroom, as told by Presiding Justice Manuel Ramirez, Chemerinsky told Eastman “I think you are going to win this one.” Eastman agreed. However, without missing a beat Chemerinsky observed “[then again] maybe they’ll get it right this time.” Unfortunately the script had already been written.

Korematsu, of course, deals with one of the most shameful episodes in our history where thousands of Japanese-Americans were rounded up and sent to interment camps out of fear that their loyalty to the Emperor of Japan may lead to acts of sabotage on the west coast of the United States. Fred Korematsu refused to report to his assigned relocation camp and was subsequently convicted for violating that order. Represented by the ACLU, he fought the conviction all the way up to the United States Supreme Court. In a 6-3 decision the Justices affirmed his conviction.

Appropriately, before starting his “opening argument,” Chemerinsky started by paying homage to Judge Robert Takasugi who passed away recently after a long battle with cancer. Coincidently, his memorial service was being held on the same afternoon as this event in Los Angeles. A 35 year veteran of the Federal bench, Takagugi at the age of 11, along with the rest of his family, had been relocated to Tule Lake. According to news reports, his father actually died there. I was hoping Takasugi would at least be mentioned, and Chemerinsky (a fixture of the Los Angeles legal community himself) did a great job in the small amount of time he was given.

The arguments were apparently a summary of those made at the Supreme Court. Both Chemerinsky and Eastman presented their cases with a degree of levity and a very live bench (the Justices were joined by retired Justice John C. Gabbert who had just turned 100) made for an interesting afternoon.

One amusing occasion had Presiding Justice Ramirez asking how the case can be reconciled with Ex Parte Endo, 323 U.S. 283 (1944). Chemerinsky, a giant of Constitutional Law jurisprudence, without a pause, distinguished the case “assuming we had a time machine.” Ramirez’s faux pas (and Chemerinsky’s quick catch) was that he had forgotten that Korematsu and Endo were argued on the same date and that, as you can see by the pagination of the opinions, Endo was actually decided after Korematsu.

The reading of the decisions (including Justice Robert Jackson’s famous dissent) was followed by some personal histories from the daughter of Fred Korematsu – Karen Korematsu-Haigh— and Judge Ben T. Kayashima of the San Bernardino Superior Court who had been interned near Parker, Arizona, in 1942. It was interesting to learn that Karen Korematsu did not know of his father’s legacy until a civics course in High School.

Chemerinsky and Eastman took to the podium again towards the end of the program in a section captioned “Korematsu to Hamdi – Historical Perspective.” Chemerinsky, of course, had to take the opportunity to once again use his soap box to rail against all of the policies of George Bush including Guantanamo Bay and its detainees; he represents one such detainee. I more than most, especially being an Iranian-American living in post-9/11 United States, fear that we may not have learned from our past mistakes (Korematsu is technically still good law!). Nevertheless, I cannot disagree with Eastman’s concluding remarks that our “Constitution is not a suicide pact” and that although our laws don’t change during wartime our definition of “reasonableness” does (hence affecting civil liberties).

In his final remarks, Justice Ramirez likewise paid his respects to Judge Takasugi – the “first Japanese-American named to the Federal Bench” – and thanked him for his 35 years of judicial service to the United States. In short, this was a great event and I cannot wait to see what the “Second Justice John G. Gabbert Historic Oral Argument Series” has in store for us.

[This is a longer unedited version. For the edited published version, please click here).