At the same time, Roland Freisler left the Justice Ministry to become president of the People’s Court, and the defendant Rothenberger took Freisler’s old job as under secretary. Earlier in the year, Rothenberger, previously president of the district court of appeals at Hamburg, had attracted the Fuehrer’s attention by submitting to him a long thesis on “judicial reform.” This thesis is a curious document; it speaks at length of the honor and dignity of the judges’ function and of the need for justice as the foundation of the Third Reich, but the reason it won the Fuehrer’s approval can perhaps be more clearly inferred from the two following quotations (NG-075, Pros. Ex. 27):
“The present crisis in the administration of justice today is close to such a climax. A totally new conception of the administration of justice must be created, particularly a National Socialist judiciary, and for this the druggist’s salve is not sufficient; only the knife of the surgeon, as will later be shown, can bring about the solution.
“The criterion, however, for the functions of justice, and particularly of the judge in the National Socialist Reich, must be a justice which meets the demands of national socialism.
“He who is striding gigantically toward a new world order cannot move in the limitation of an orderly administration of justice. To accomplish such a far-reaching revolution in domestic and foreign policy is only possible if, on the one hand, all outmoded institutions, concepts, and habits have been done away with—if need be, in a brutal manner—and if, on the other hand, institutions that are in themselves necessary but are not directly instrumental in the achievement of a great goal and which, in fact, impede it, are temporarily thrust to the background. All clamor about lawlessness, despotism, injustice, etc., is at present nothing but a lack of insight into the political situation * * *.”
At the time he was appointed Minister, Thierack also became the president of the German Academy of Law, and of the National Socialist Association of Jurists. The temper of the new administration of justice was reflected in Thierack’s announcement to the German Academy of Law as follows:
“The formulation of law is not a matter of science and a goal in itself, but rather a matter of political leadership and organization. Therefore, the activities of the Academy relating to the formulation of law must be coordinated with the aims of political leadership.”[37]
At the time of their appointments, Thierack and Rothenberger envisaged an ambitious program for simplifying the hierarchy of German courts, drastically reducing the number of judges, and “modernizing” the education and training of judges in accordance with prevailing political thought. Much of this program was never realized, but Thierack and Rothenberger did succeed in developing new devices for direct control of judicial decisions by the government. This has been also foreshadowed in Rothenberger’s thesis submitted to Hitler:
“* * * a judge who is in direct relation of fealty to the Fuehrer must judge ‘like the Fuehrer.’ In order to guarantee this, a direct liaison officer without any intermediate agency must be established between the Fuehrer and the German judge, that is, also in the form of a judge, the supreme judge in Germany, the ‘Judge of the Fuehrer.’ He is to convey to the German judge the will of the Fuehrer by authentic explanation of the laws and regulations. At the same time he must, upon the request of the judge, give binding information in current trials concerning fundamental political, economic, or legal problems which cannot be surveyed by the individual judge.”
In part, this executive control was accomplished by conferences between the prosecutors and the judges, in which the prosecutor advised the judge what measure of sentence the Ministry of Justice thought fitting in a particular case. But an even more effective device was a series of confidential circulars to the judges known as Judges’ Letters (Richterbriefe) which Thierack dispatched, under his own signature as Minister of Justice, to the judges and prosecutors throughout the German judicial system. Thierack announced this forthcoming series in September 1942 in the following letter:
“To aid the judge in fulfilling his high duty in the life of our people, I decided to publish the Judges’ Letters. They shall be distributed to all German judges and prosecutors. These Judges’ Letters will contain decisions that seem to be especially worthwhile mentioning, on account of result or argumentation. On these decisions, I will show how a better decision might or should have been found; on the other hand, good, and for the national community, important decisions shall be cited as examples.