Fighting Antisemitism: The Duty of the Organized Bar
12.13.2023
In the wake of Hamas’ horrific Oct. 7 attack against Israel, there has been an unprecedented number of antisemitic incidents in the U.S. This alarming spike comes amid already historic levels of anti-Jewish harassment and assault. Antisemitism is rapidly mutating into a societal cancer, especially in New York State – the home to the largest population of Jews anywhere in the world outside Israel.
How should lawyers respond to this lethal threat? History provides a cautionary tale of what can happen when lawyers turn a blind eye to antisemitism and lawyer organizations are not just passive but on the wrong side of this perpetual evil.
Consider, for example, the plight of Jewish lawyers in Germany during the rise of the Third Reich. Although Jews were less than 1% of the population of Weimar, Germany, they made up 25% to 30% of the legal profession. On Jan. 1, 1933, in Berlin, the capital city, 43% of the 3,400 lawyers were Jews or of Jewish origin. But the fate of German Jewry was sealed later that month when the Nazi Party assumed control of the German state with Adolph Hitler’s appointment as chancellor.
On April 7, 1933, the Nazi-run government took one of its first steps to destroy the rule of law, by promulgating the Law for the Restoration of the Professional Civil Service. It expelled all Jewish judges and “non-Aryan” attorneys, save a few exceptions that were subsequently eliminated. Ultimately, in 1938, the Nazis banned Jews from practicing law.
Shamefully, most non-Jewish German lawyers offered no resistance and made no effort to help their colleagues. Lawyer organizations did nothing, too, except expel Jews from their ranks. Half of the members of the Berlin Bar Association in 1933 who were Jewish, including those who converted to Christianity, emigrated from Germany and a fifth were murdered.
Fast forward to the present. Hamas is a U.S. State Department-designated Foreign Terrorist Organization under Section 219 of the Immigration and Nationality Act. Notwithstanding that it is a crime to provide material support to such an organization, all too many lawyers, organizations that represent lawyers, and law students have defended Hamas’ attack against Israel.
For example, on Oct.7, as Hamas slaughtered and kidnapped Israeli civilians, an Albany Law School professor appeared to celebrate what happened on social media. In a post on X, formerly known as Twitter, accompanied by a photo of a breached border fence, the professor wrote: “Long live the Palestinian resistance & people of Gaza, tearing down the walls of colonialism and apartheid.” She added, “As the Biden admin builds more walls at U.S. borders, the people of the world are rising up and tearing walls down. The Palestinians are a beacon to us all.”
In a similar vein, the day after the Oct. 7 massacres, the National Lawyers Guild praised Hamas’ conduct as entirely justified “military actions.” And on Oct. 10, a Student Bar Association president at NYU Law School blamed Israel for the Hamas attacks in an online student newsletter, stating that “Israel bears full responsibility” for Hamas’ deadly attack. Some five weeks later, 60% of the school’s students voted to remove the president from office.
On Dec. 5, University of Pennsylvania President Liz Magill, along with the presidents of Harvard University and the Massachusetts Institute of Technology, appeared before a congressional committee to answer questions about the rise of antisemitism on their respective campuses. Magill, a former law school dean, was asked whether the call for genocide of Jewish people on campus constituted bullying or harassment violative of Penn’s rules or code of conduct. She declined to give a definitive answer, saying that a call for Jewish genocide could be harassment if it turned into conduct. This response was immediately and widely condemned. Pennsylvania’s governor described it as “shameful, and a White House spokesperson observed that “[a]ny statements that advocate for the systematic murder of Jews are dangerous and revolting.” Magill resigned from her position as president four days later following an outpouring of criticism regarding her testimony.
Manifestly, lawyers (and aspiring lawyers) should not glorify, condone, or rationalize genocidal mass murder fueled by hatred of Jews. Of course, lawyers have a right under the First Amendment to criticize Israel’s policies – past, present, and future. But lawyers can be disciplined to the extent they counsel or assist others in illegal and criminal conduct. So, too, lawyers are not free to advocate hate crimes or incite violence against others.
America’s foundational principles abhor intolerance. Equal justice under law is a core principle of the rule of law. Pluralism and diversity are our national heritage: the source of our strength. The promise of our country lies in government’s ability to protect citizens of all religions, races and ethnicities.
Antisemitism threatens the nation’s bedrock principles of equality and freedom from persecution. It also undermines the government’s obligation to safeguard its residents from bigotry and violence.
Thus, lawyers and the organized bar have a special responsibility to fight injustice caused by all forms of prejudice, including antisemitism, the oldest prejudice of them all. Just as they have long condemned racism, their response to antisemitism, Islamophobia and anti-Asian hate must be equally vigorous and emphatic. Law schools must also recognize their mission is to produce graduates that understand a lawyer’s duty is to the rule of law – not the law of tooth and claw.
Thankfully, most of the New York bar is meeting the moment. On Oct. 9, NYSBA issued a statement strongly condemning Hamas’ “premeditated invasion of Israel and its brutal murders of hundreds of Israeli and Arab citizens in their homes and communities. The attacks are abhorrent and unforgivable and flagrantly violate the United Nations Charter, Helsinki Accords, and established norms and principles of international law.”
On Nov.1, more than two dozen of the state and nation’s leading law firms sent a letter to more than 100 law school deans, threatening not to hire their students if they failed to take antisemitism more seriously. The law firms wrote that, “[o]ver the last several weeks, we have been alarmed at reports of antisemitic harassment, vandalism and assaults on college campuses, including rallies calling for the death of Jews and the elimination of the State of Israel. Such antisemitic activities would not be tolerated at any of our firms.”
The law firms made clear that they would not “tolerate outside groups engaging in acts of harassment and threats of violence, as has also been occurring on many of your campuses.” Accordingly, the letter continued, “[a]s employers who recruit from each of your law schools, we look to you to ensure your students who hope to join our firms after graduation are prepared to be an active part of workplace communities that have zero tolerance policies for any form of discrimination or harassment, much less the kind that has been taking place on some law school campuses.”
On Nov. 4, NYSBA’s governing body, the House of Delegates, condemned Hamas’ vicious and unprovoked attack on Israel, defended Israel’s right to defend itself and called for all hostages to be released. A few weeks later, NYSBA issued another statement, decrying the chants and slogans of the supporters of Hamas as “no different from the words of the Ku Klux Klan or the Nazis,” explaining that “[t]hey are a deviation from our American values, and protecting our citizens is part of preserving our democracy.” In addition, after the Hamas attacks, the mission of NYSBA’s Task Force on Combating Antisemitism and Anti-Asian Hate, which was launched in June to deal with a rise in hate incidents, took on more urgency as incidents of antisemitism skyrocketed.
Such actions are in keeping with NYSBA’s tradition of responding aggressively to antisemitic incidents. In January 2020, NYSBA formed an emergency task force to study 14 antisemitic attacks in New York that occurred the preceding month. The task force rapidly completed its work and produced a comprehensive set of recommendations for the governor and Legislature to help rid the state of the scourge of hate crimes.
From the early days of the war, NYSBA has been in continuous communication with the Israel Bar Association. Over the course of several Zoom meetings with the Israel Bar Association’s leadership, NYSBA has freely shared expertise it acquired standing-up an emergency statewide pro bono network during the COVID-19 pandemic. In partnership with the justice tech company Paladin, NYSBA and the Israel Bar Association launched a pro bono portal that allows Israeli lawyers and law firms to expeditiously find pro bono work with war victims. This technology is facilitating the provision of free legal assistance to the survivors of the Oct. 7 attack, the families of hostages and evacuees from the southern and northern borders of Israel.
In short, no state bar association in the nation has been more proactive or forceful than NYSBA in denouncing antisemitism and supporting Israel in its time of agony and need.
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At the end of Albert Camus’ novel, “The Plague,” an allegory of the Nazi occupation of France, the narrator, Dr. Rieux, explains why he told his story:
It is because the bacillus de la peste, the plague germ, never dies; it never entirely disappears; it simply goes into remission, perhaps for decades, but all the while lurking: in the furniture, in linen cupboards, in bedrooms, in cellars, in trunks, in handkerchiefs, in file folders, perhaps one day to reawaken its rats, and then, to the misfortune or for the education, of mankind, to send them forth once again to die in some once-happy city.
Antisemitism, like the plague germ, has reawakened. While lawyers alone cannot eradicate such hatred and evil, the organized bar must be unrelenting in the fight against it. The concerted action of the most impactful, consequential, and influential profession in the history of the world can make a difference. All of us together must do everything in our power to make sure that New York’s Jewish community feels and is safe. This is a basic human right, and the legal profession has a duty to defend it.
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