Legal Docket: The courtroom artist and the pursuit of justice

NICK EICHER, HOST: It’s The World and Everything in It for this 16th day of

December. We’re so glad you’ve joined us today. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time for Legal Docket.

In a moment we will analyze a case that arises, out of the Holocaust.

But first:

JENNY ROUGH: Mary, I am so sad about Bill.

REICHARD: A conversation with my legal-affairs colleague Jenny Rough…

EICHER: We all got together on Friday after we heard the news.

REICHARD: Very sad news: the death of William Hennessey Junior.

You may not know his voice or his face or even his name. But you’d probably recognize his sketches.

If you think of Legal Docket as your ears at the Supreme Court, Bill Hennessey would’ve been your eyes.

Cameras aren’t allowed at the court, but Hennessey was there as the courtroom sketch artist.

EICHER: Hennessey had a massive heart attack last week, and died on his 67th birthday.

Mary and Jenny interviewed Bill Hennessey two years ago, and if you missed the replay of their lengthy special report we ran over the weekend, you might want to go back and listen. It should be in your podcast feed.

Let’s jump back into our conversation.

ROUGH: I was at the court the other day just last week and I saw his chair with his name on it and it was empty. And he’s always at the court, and I remember thinking: I wonder where he is? And then the news came out that afternoon.

EICHER: Ever since you all met him and we did that piece, I pay closer attention to courtroom sketches, and his were so strong. I could always pick his stuff out from others. Like, oh, there’s a Bill Hennessy.

REICHARD: He truly was an original and we saw him in his art studio there in Virginia. We had such a pleasant time. We’d driven over there together and he was so pleasant and so kind and so welcoming. So , Jenny, what’s something that you remember from our time with him?

ROUGH: Yeah, when you say kind, I mean, that is the word that just immediately comes to mind, but he lived out in Ashburn, Virginia, in this gorgeous house on Goose Creek, you know, the Virginia countryside and his art studio had all these huge windows and he had everything organized, you know, he had his Supreme Court sketches and his arraignment sketches and trials and sentences. And he would just pull them out and he would start talking about the case. 
I mean, he remembered everything….

REICHARD: One of the things that I remember, it was some time after we had visited him in his art studio. You and I, Jenny, were at the Supreme Court. Oral arguments hadn’t started yet, and I was seated next to Bill, so I was fascinated.
I was kind of looking over his shoulder. I said hi, but he barely looked up and he didn’t acknowledge us because he was so intent on sketching the courtrooms, you know, the curtains, the furniture, all that stuff before the justices even took their seats and I realized that I had interrupted him so I just went about my business. But here’s something about Bill that I think says something about him and his personality. Later after the arguments had concluded, he came up to us in the lobby and he said to me, “Oh my goodness, it’s you and Jenny. Of course I remember who you are. I was just, you know, so focused on my sketch.” I said “Hey, no apology needed. I interrupted you.” So that’s the kind of man Bill Hennessy was. He was concerned about the seeming little things. Relationship things.

ROUGH: Well, when you say, when you talk about sitting next to him at the Supreme Court, so I will never forget the first time I met him. It was 2019 and it was the first Monday in October, so it’s opening day of the Supreme Court’s new term. And in the press gallery, you know, you don’t get to pick your seat.
 You’re basically told where to sit, and that day I was placed right next to Bill Hennessy, the way that you were placed next to him when you were there. And I, it was the same thing, I was looking over his shoulder and peppering him with questions about his work and he patiently answered all of them. 
And I just, I knew from the moment I met him I’m like we have to interview this guy. And then three years later we did! (laughs)

REICHARD: So glad about that! And it wasn’t only his kindness; I was struck by his adherence to the truth in his artwork. I want to play a clip from him, from our interview. Listen to what he says about that:

HENNESSY: I try to stay out of the politics of it. I really do. Including the way I draw and what I draw. I just try to be objective. That’s my goal. So it’s a challenge to try to capture the moment and be accurate. Accuracy is one thing I’ve, certainly been drilled into me over the years is, you know, there’s this etiquette, this ethical responsibility as an artist is just like a journalist: you gotta get it right and don’t embellish and don’t get it wrong. And if you didn’t see it, don’t draw it.

I have to add…there’s a photo I have with him standing together. When I looked at it the other day, I couldn’t help but think: Here are two people who would both have heart attacks two years later. One of us would make it through and the other would not. I’m so grateful to be here, for to live is Christ. Sad for Bill, of course, but to die is gain.

Well, we carry on now to the argument heard two weeks ago in the case Republic of Hungary versus Simon. It’s similar to previous cases we’ve covered over the years…

This case arises from the Holocaust in Hungary.

First a brief history

EICHER: During three months in 1944, Hungary murdered more than half a million Jews. The Hungarian government collaborated with the Nazis, and declared that valuables owned by Jews were now property of the government.

Officials went house to house confiscating property.

REICHARD: When it became clear that the Allies would win the war, Hungarian officials with brutal efficiency put thousands of Jews into cattle cars destined for death camps. The numbers are mind-boggling: four times per day, the government put 3,000-5,000 Jews into cattle cars, where 90% were murdered upon arrival at the camps.

EICHER: In all, two-thirds of the Jewish population of Hungary were wiped out. The one-third that survived and the heirs of some of them want to recover what rightly belongs to them—and that led them to the U.S. Supreme Court.

Lead plaintiff is Rosalie Simon, now age 93. She and the others sued Hungary and the national railway MAV. They did so under an exception to the general rule that foreign nations are immune from lawsuits in American courts.

Their lawyer Shay Dvoretzky:

DVORETSKY: When Hungary and MAV liquidated respondents’ property, they exchanged that property for money. And when money is commingled, a withdrawal from commingled funds is in exchange for earlier deposits. So, when Hungary used commingled funds to pay interest and buy equipment in the United States, it put into the United States property that had been exchanged for the expropriated property.

Think of it as depositing a $100 bill in the bank and withdrawing it a year later. It’s not going to be the exact same physical bill, and that’s completely unimportant, but it’s the exact same amount.

Dvoretzky argued the passage of time cannot erase what Hungary did during the Holocaust.

What it did with the confiscated property is a sufficient commercial connection to the US. And thus it still fits under the exception to the general rule that you can’t sue a foreign country.

So his clients should be permitted to move ahead with the lawsuit.

REICHARD: Hungary, of course, disagrees. Lawyer Joshua Glasgow representing:

GLASGOW: Simply showing that funds entered into the general revenues of an entire nation that contained billions of dollars followed by untold numbers of transactions following that deposit simply isn’t consistent” with the plain text.

…the plain text of the Foreign Sovereign Immunities Act, the federal law in question.

Hungary insists that there is no way to trace assets seized nearly 80 years ago and connect those to anything today.

Lawyer Glasgow argued it’d be foolish to expand a narrow exception.

Justice Elena Kagan pushed back, worrying that nations would just insulate themselves:

KAGAN: Doesn’t this provide a roadmap to any country that wants to expropriate property? Other words, just sell the property, put it in your national treasury, and insulate yourself from all claims for all time?

EICHER: Chief Justice John Roberts continued that line of questioning with Dvoretzky for the survivors, worried about throwing the door open to lots of lawsuits:

ROBERTS: At the end of the day you’re really just asking us to throw out the general rule that sovereigns can’t be sued for appropriations of this sort. I mean, once you say commingling counts, well, then, everything’s pretty much fair game.

REICHARD: The question flashing around the court was whether there had to be a direct exchange of expropriated property for assets, or just a commingling of those expropriated assets with general funds.

Justice Brett Kavanaugh also seemed to lean in Hungary’s direction, worrying about diplomatic consequences of allowing the case to proceed:

KAVANAUGH: No other country in the world has an expropriation exception to begin with, right? ……It’s a big deal to hail a foreign country into U.S. court.

EICHER: Justice Samuel Alito was concerned about the notion of reciprocal lawsuits—and a bit surprised. He’s questioning Sopan Joshi, the Biden administration lawyer supporting Hungary’s argument.

ALITO: –I don’t understand your argument about retaliation. You think that if lawsuits are brought in the United States based on the expropriation, let’s say, of the property of U.S. nationals abroad, then foreign countries are going to entertain suits based on the expropriation in this country of the property of their nationals? Is the United States going around expropriating the property of foreign nationals?

JOSHI: I –I hope we’re not.

To be clear, Joshi wasn’t arguing Hungary did nothing wrong. He’s arguing that American courts aren’t the right place to pursue this particular stolen property and see it returned to the rightful owners.

This case has bounced around for years, and even made it to the high court once already. The justices sent it back to the lower courts for more review. But when a federal appeals court ruled for the families, Hungary appealed to the Supreme Court.

REICHARD: The justices’ questions showed they are concerned about the broader implications however they decide. Implications for international diplomacy, for principles of sovereign immunity, and for the pursuit of justice for Holocaust survivors.

However the court resolves the question of whether the survivors can proceed with their case, it won’t settle the issue over the stolen goods.

A broad ruling risks global relations, while a narrower one could allow nations to evade responsibility.

And that’s this week’s Legal Docket!

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