Densho Digital Archive
Densho Visual History Collection
Title: Mary Schroeder Interview
Narrator: Mary Schroeder
Interviewer: Tom Ikeda
Location: Seattle, Washington
Date: February 8, 2012
Densho ID: denshovh-smary_2-01

<Begin Segment 1>

TI: So today is Wednesday, February 8, 2012. We're in Seattle in the Densho studios. Our narrator today is Judge Mary Murphy Schroeder. The purpose of this interview is actually twofold. One is to get your perspective of -- as a key player -- an important legal case pertaining to the World War II Japanese American exclusion from the West Coast, and the second purpose is to really try to highlight or discuss some of the broader issues and themes that we can derive from the Hirabayashi case. That would, in some ways, think about in terms of adding to a discussion in a high school civics class. So that's the purpose. Why don't we get started, and so Judge Schroeder, why don't I just start with, to get it on the record, can you tell me when you were born and where?

MS: I was born December 4, 1940. I was born just before, the year before Pearl Harbor, and I was born in Boulder, Colorado.

TI: And what was the name given to you at birth?

MS: My name was Mary Barbara Murphy.

TI: Any significance to that name?

MS: No. By absolute coincidence, I was born on St. Barbara's Day, which is December 4th, but my parents had no idea.

TI: And just tell me a little bit about your parents. What did they do, where were they from?

MS: Well, my parents were both academics. They met at the University of Pittsburg, they both were debaters, debate coaches there. And my mother was Jewish and my father was not Jewish. His father had been a Catholic who bolted the church to marry a non-Catholic. So I came from a religious background that was very mixed, and I think that may have given me a little sensitivity. I think my parents tried to implant into me some sensitivity to racial and religious prejudices and how they can impact people's lives.

TI: So growing up, what religion were you raised?

MS: I was raised in no religion.

TI: Okay. Growing up, did you learn about or know much about the Holocaust?

MS: Yes, I did know about the Holocaust because of my mother's Jewish heritage and because my father thought it was such a dreadful chapter. I was much aware when I was very young of World War II because there was a Japanese language school in Boulder, Colorado. And my father was a member of something called the Stretcher Bearers, because everyone in the United States at the time thought that they were living in a possible target for Japanese attack. And for some very strange reason, people in Boulder, Colorado, thought that they might be subject to a Japanese attack. My father thought it was absolutely ridiculous, but he enjoyed mountain climbing, and carrying stretchers up and down the mountains was great fun for him.

TI: And what time period was your father a Stretcher Bearer?

MS: Oh, this was 1942 to 1945.

TI: Okay, so during the war.

MS: During the war. It was a wartime...

TI: So they thought there might be some kind of attack...

MS: Everyone thought, apparently, that there might -- there was great fear, I think. My sense is, although I was very, very young, but my sense is that there was great fear throughout the country of Japanese attack.

TI: And you mentioned the Japanese language school.

MS: Yes.

TI: And so did you have any connection with Japanese or Japanese Americans?

MS: No, except that there was Japanese spoken all around me. I don't remember any personal connection, but young children developed imaginary friends, and my imaginary friend was a Mrs. Hayakawa.

TI: And so you said your imaginary friend would speak Japanese?

MS: Yes, we would speak imaginary Japanese, and imaginary English to my imaginary friend.

TI: Going back to the Holocaust, was there any family connection to the Holocaust?

MS: No, no. My family left Europe in the 19th century.

TI: Growing up, is there any -- before I jump to the Japanese American experience in World War II in terms of your involvement with case work, I just wanted to ask, are there any stories or highlights about growing up that paint a, had a great deal of influence in terms of who you are as a person? Anything you can think of?

MS: Oh, my goodness. Well, of course, everything growing up affects how you are as a person. In terms of how it would affect my outlook on the law, I think that my parents, because of their religious diversity, were very sensitive to injustice. My father was a professor who was always very active in the American Association of University Professors and I think he was very involved in their Academic Freedom Committee. So that the importance of free speech and of being able to express your views freely, and not having your occupation or your life jeopardized by your views was something that I grew up with because of my family's concern with academic freedom.

TI: With that kind of outlook, did your father ever have difficulties during the '50s when, oftentimes when people were striving for academic freedom, came to, when I think of the McCarthyism, and was there ever a period where your father had difficulties with that?

MS: No. My father never had any difficulties during the '50s. It was a family kind of a legend that there had been some difficulties during the '30s. That was rather pretextual because there weren't enough jobs to go around. He had some problems because of some associations he had with newspaper reporters who had friends who worked for the Daily Worker. It was all a very association-linked story, but I don't think it ever lasted beyond the '30s. We never had any problems in our family. Although I was very aware of the McCarthy era and what was happening. And my family was greatly outraged by Senator McCarthy's antics.

<End Segment 1> - Copyright &copy; 2012 Densho. All Rights Reserved.

<Begin Segment 2>

TI: So I'm going to now jump to the Japanese American experience. And wanted to ask you, when did you first learn about what happened to Japanese Americans during World War II, the mass removal from the West Coast and then the incarceration?

MS: Well, I never learned the full story, actually, until I became involved in Gordon Hirabayashi's case as a judge. But I knew that there had been an internment because I had an absolutely wonderful teacher who was a physical education teacher when I was about eleven, and her name was Miss Fujita. And I heard that she had been "locked up." That was the word that was used during World War II, and I couldn't understand why that was and I was always afraid to ask her. And I think I've always regretted that I never did ask her about it and what had happened and her experiences.

TI: And when you were eleven, where were you living?

MS: I was living in Illinois. By that time, my father was teaching at the University of Illinois, I was living Urbana, Illinois.

TI: Did you ever talk to your parents about this growing up? Did they ever mention or did you ever ask them about...

MS: Not that I can recall, no.

TI: So did it seem interesting or odd that it wasn't until much later in your life that you learned about what happened to Japanese Americans on the West Coast?

MS: Well, I don't want to be misleading. I knew that there had been an internment. I learned about it in high school and in college, but it was never brought home to me as to exactly who was taken away from their homes, where they were sent and why until much later.

TI: Okay. Now going to your legal training, did you learn about the Korematsu or Hirabayashi case as you went through law school?

MS: Yes.

TI: And what were your thoughts when you learned about that?

MS: Well, simply that this is terrible. This is a terrible thing that our country did this. And I think that was the general view of the students, and the kind of incomprehension about how this could have happened.

TI: Good, okay.

<End Segment 2> - Copyright &copy; 2012 Densho. All Rights Reserved.

<Begin Segment 3>

TI: So let's go to the coram nobis petition. Can you describe how the Hirabayashi coram nobis petition came to be heard in front of you and I guess the panel?

MS: Well, a coram nobis petition is a very unusual animal. There are what are called in our law extraordinary writs, that's kind a generic name for them. The most common is a writ of habeas corpus, which is a case that is filed in federal court in seeking to challenge the reason why someone is in jail. These are extremely common; almost every prisoner files for writ of habeas corpus and most of them are most unsuccessful. But it's known as the "great writ" because it's the protector that the individual has against arbitrary action by the state that confines them against their will and takes away liberties. The limitation on the writ of habeas corpus is that in order to qualify to file for a writ of habeas corpus you have to be in prison. You have to have your liberty under some kind restraint. And the difficulty that Korematsu and Hirabayashi had in the 1980s was that their prison terms had long since expired, and they had been fruitful, contributing members of society. And so they had to look to a much rarer kind of a writ called the writ of coram nobis, which is very unusual and is reserved for situations in which while the original judgment that caused a restraint to liberty has expired and there are no consequences being felt, material consequences being felt now, the person who has been convicted has suffered a conviction that had some really serious flaw in fairness. And in very rare situations, the writ of coram nobis can be used to attack a conviction that has long since had no actual consequences for the person.

TI: And so you mentioned this was kind of an unusual writ. Was it something that you had seen before?

MS: No, I'd never seen it before. I'd read about it in the law books, but I'd never actually seen a case. Of course, one of the main arguments that the government had by the time Gordon Hirabayashi's case came to us was the whole thing was moot because there was nothing left of the conviction. That he'd served his sentence in the '40s and '50s, it was just over, and we shouldn't pay any attention to it.

TI: So let's go in terms of... so when it got to you it was actually on appeal.

MS: That's correct.

TI: So it already had gone through the district court in Seattle with Judge Voorhees.

MS: Yes.

TI: And so explain to me why it was on appeal.

MS: Well, it was an unusual situation because Gordon Hirabayashi had been convicted both of violating the curfew and of violating the order for evacuation. And when he challenged both of those convictions, Judge Voorhees took the view that coram nobis was appropriate for violating the order of evacuation because the evacuation had resulted in a very serious curtailment of liberties of Japanese Americans, but that the curfew was not a very serious infringement of liberty, and therefore he couldn't use the writ to challenge that. And so both the government and Hirabayashi were unhappy because the government had thought that the writ should not have been granted for either conviction, and Hirabayashi thought that it should have been granted for both, so there had to be an appeal. And in the Korematsu case, which had been challenged a couple of years before in San Francisco where Korematsu was convicted, the only conviction involved was the internment. And the judge in that case, a good friend of mine, Judge Marilyn Patel, granted the writ in that case and the government did not appeal.

TI: And so why was the government proceeding differently? I mean, in the early Korematsu --

MS: Well, I think Hirabayashi was one who -- I think, if I remember correctly -- was probably the motivating force to appeal. And once he appealed, the government had to appeal, too. I think that probably if Judge Voorhees had granted both the petitions, one can speculate that the government may not have appealed. But since Judge Voorhees in essence "split the baby," there had to be an appeal.

TI: Having known Gordon and interviewed him, I can almost hear him say, I can hear his thinking in terms of both convictions were race based.

MS: That's right.

TI: His defiance of the exclusion order was race based in terms of it being targeted to Japanese Americans, and the same thing with the curfew. And so when I think of Voorhees' decision, I'm trying to understand his distinction. They're both race based, and was he saying in some ways that the curfew -- I guess the question is, when is perhaps a race based decision okay?

MS: Well, I don't think he was thinking of it that way. I don't know what he was thinking, but in reading it, I had the feeling that he was looking at it in terms of what is appropriate, what kind of a punishment, what kind of infringement on liberties was involved that would be appropriate for this extraordinary relief. And I think his thinking was that the curfew just didn't amount to enough, curfew violation didn't amount to enough to justify, forty years later, going back and reaching in and overturning it. Whereas the actual order forcing people to leave their homes and go to prison camps was much more serious.

Now, when the case came to our court, that was one of the issues we had to decide was whether or not both should be considered serious enough, and the injury to the individual serious enough to justify a writ for both convictions, and I believe the sentence that I used in the appeal, we concluded that because it was race based, that they both should be treated the same. And I believe the sentence that I wrote was, "When someone has been convicted of a crime on account of their race, they are lastingly aggrieved." The harm never goes away when it's race based.

TI: The other thing, as I was thinking about Voorhees' decision, would there be a reluctance to also vacate a U.S. Supreme Court decision?

MS: Yes. Well, we never vacated the Supreme Court --

TI: Or the conviction.

MS: The Supreme Court opinion is there. We couldn't overturn the Supreme Court opinion based on the record in that case. But what we could do is vacate the conviction on account of newly found evidence that showed that it was based on unfounded assumptions.

TI: So let me reword that again.

MS: [Laughs] It's a little hard to imagine. It's a kind of a legal artificiality, but the Supreme Court opinions are still there and could be cited if someone wanted to cite them, but the Supreme Court is never cited.

TI: But, so the Supreme Court upheld the conviction. Voorhees did not vacate the curfew conviction, which the U.S. Supreme Court upheld. So I guess the question I wanted to ask is, is there a reluctance on the part of judges not to differ with the Supreme Court? Is there like a stronger test for them? Because... so he vacated the exclusion conviction, which the Supreme Court really didn't rule on for Hirabayashi. And then kept the curfew, so I was just wondering if that was...

MS: No, I don't think that's the reason that he didn't do it. You see, the Supreme Court's decision on the basis of the record in the Supreme Court case was not really at issue. What was at issue was the... how can I put it? Whether the record on which that decision was based, and on which these individuals had been convicted, was a record that had been doctored and was based on lies. And when the new evidence came to light that the report that indicated that the exclusion was based on military necessity, when it turned out that there had never been any such judgment, it undercut the basis for the Supreme Court's decision, but didn't overturn the decision itself. Because the Supreme Court's decision was based on deferring to the military assessment of the exigencies of the situation. And when it turned out that there had never really been a military assessment, that there was an exigent situation of danger, but rather that it was based upon stereotypes of Japanese character. The whole basis for deferring to military judgment was just taken away.

<End Segment 3> - Copyright &copy; 2012 Densho. All Rights Reserved.

<Begin Segment 4>

TI: As you were talking it brought back memories for me because I had the opportunity to not only interview Aiko Herzig, who was one of the researchers who found the original Final Report of DeWitt, and some of the lawyers for the Korematsu case, and we interviewed also Peter Irons. And what struck me as you were talking was the amount of work that these individuals did pretty much on a pro bono basis. The amount of research at the National Archives, preparing the legal documents for not only the Hirabayashi, but the Korematsu and Yasui case also. And I just want to get a sense, because when I interview them now, they're slightly older than I am, but when they were doing the case, they were really young. They were really young, inexperienced, most of them right out of law school. And I'm curious, from your perspective, when you saw that -- or maybe the question is, how would you rate their work, these young, primarily Japanese American lawyers?

MS: Oh, I thought that the work that had been done was just extraordinary. I turned my office, when I was working on the opinion -- we heard the opinion in March, I think it was eventually handed down in September. I tried to clear the decks of everything else and then devote the summer to working on the case, and I had to do an extraordinary amount of research myself in order to make sure that it was very well-documented. So I turned my little office conference room into a World War II library, and I read everything that I could find and had my law clerk read everything that we could find on the history of the internment and on the scholarship that had been written about it to make sure that what had been briefed to us and argued to us was truly sound and valid. And we just found no mistakes.

TI: Is that a common process for you to do for a case?

MS: No. You rarely... this was, I would say, once in a lifetime.

TI: And why this case?

MS: Why this case? Because it's extraordinary history. Because you're examining and finding the dimensions of a great injustice that has played such a role in our history. And one knew in 1987 that this was going to be something that would be studied for many years to come. And everything that was written would be a chapter in history that people would read and study for the future. So you wanted to make sure it was done right, and you wanted to make sure that people who were presenting the case to you had done everything that they could. I could find no mistakes. I don't pretend to be as smart or as scholarly as some of them, but in my humble opinion they did a good job.

TI: Yeah, and from my perspective, they really forwarded a lot of the scholarly work based on their research and thinking, it was pretty extraordinary.

MS: Well, they pulled it all together.

TI: And they were able to... I think what we struggled with back then was how did we tell the story or make a case, and I think that's what they really helped, I think, in many cases, the Japanese American community. Because at the same time, in parallel, was the redress effort in terms of going to Congress and getting, Congressional hearings were going on, then later on having Reagan sign the Civil Liberties Act of 1988. So this was all happening about the same time. And what was interesting was how there were many people in the Japanese American community actually critical of these young coram nobis lawyers because they thought that if they lost, it would really screw up the whole redress effort. That they would, on the record, lose to the government and Congress would see that. So in addition to preparing all of that work for the legal case, they had this pressure from the community. It's just a fascinating story.

MS: Yes. And of course there were pressures because the whole world is watching. There are pressures on the court, too, and on a judge working on an opinion like this. Because as an appellate judge, I have to have at least one other vote. There are three judges who hear the case. In this case it was Judge Goodwin who was senior to me on the panel, and he was a veteran of World War II. And in fact, he was in the invasion force that would have invaded Japan if the atomic bomb hadn't been dropped. So he had one historical perspective that was very different from my own. And then the third judge was Jerome Farris of Seattle who, as an African American, was very, as I recall, he was very concerned in this case about the fact that these were citizens who were treated this way. But I had to have, in writing the opinion, I had to make sure that I wrote a strong enough opinion so that I had their agreement. Because as an appellate judge, I couldn't afford to have a dissent, someone strongly dissenting, saying, "This is all water over the dam and you shouldn't be worrying about this," or, "Let's forget about this." And I wanted to make sure that it was, it had to be persuasive enough so that the government didn't want to go to the Supreme Court and say, "Look, you've got to stick by your guns here." So it had to be very, very strong, unusually strong.

<End Segment 4> - Copyright &copy; 2012 Densho. All Rights Reserved.

<Begin Segment 5>

TI: So explain to me the process -- I always think that the three of you would sort of form your opinions first, in terms of... I know it was a unanimous decision amongst the three of you. But was it a case where you actually had to write your opinion first before the other two decided how they were going to...

MS: No, the way it works on our court is that we all read the briefs and then we hear the argument, and then we go back into the conference room and discuss the case, and we tentatively decide how it's going to come out and who should write the opinion. And then, if it's an important case, a significant precedential case, but one that's going to create precedent for the future, then the writing judge has to go back to his or her office and write the opinion, and then circulate it for the other judges to comment on. So it's stages. You read the briefs, you hear the arguments, you discuss the case, an opinion is written, the other judges comment, they can agree, they can disagree, and then you finally come out with the final product. It can take quite a while.

TI: Good. Thanks for explaining that. You mentioned earlier that you wanted to write the opinion in a way that the government lawyers would not appeal to the U.S. Supreme Court, and they decided --

MS: Well, I wanted to make it as hard as possible. [Laughs]

TI: Right. And so did it surprise you that they decided to just drop it after the appeal?

MS: Well, let me say I wouldn't have been surprised, terribly surprised if they had decided to take it up, but I can't say that I was really surprised that they decided to stop, because they had not appealed Korematsu.

TI: One of the things when I talked with Gordon twelve years ago, I'm not sure if it's regret, but he expressed the desire that he had wished that it had gone to the U.S. Supreme Court.

MS: Yes, Gordon Hirabayashi was very upset that the government had not appealed. And he wanted to have his case vindicated by the United States Supreme Court. He felt very strongly about it. And I kind of subtly tried to tell him a few times when we appeared at programs that really it's best to leave well enough alone in these circumstances. Don't run after the train after you've caught it. [Laughs]

TI: So he should just, so he won.

MS: He won, but I can understand his feelings because he had taken a matter of principle to the Supreme Court, and they had not recognized that principle and he wanted them forty years later to say that they had been wrong. That I think was a little bit too much to ask for.

TI: So I asked, actually, after talking to Gordon, I asked some of the coram nobis lawyers, Don Tamaki and Dale Minami who worked on Korematsu, I asked them, at the U.S. Supreme Court level, Korematsu and Hirabayashi are still there as opinions, they haven't been overturned or anything like that. So how did they feel about it? And they pointed to your opinion and Judge Patel's opinions as saying they felt that what you did was I think the term they said was you "took the legs out from under those decisions," so they were, in their words, "hollow," or they didn't really mean that much.

MS: Oh, that's clearly so. And the subsequent writing has recognized that. And in fact, the Supreme Court's decisions in Hirabayashi and Korematsu were repudiated by the judgment of history. I think I even said in Hirabayashi, years before the coram nobis cases came to us. (They have) always been, as I think one scholar has called it, pariahs. And the Supreme Court has never cited them with approval.

TI: So this is maybe what I don't understand. More recently, I think Dale Minami told me that, he said the Bush administration actually used Korematsu, they cited Korematsu I think relative to the enemy combatant situation? And so he was pretty livid about that. He said they should not have done that, but yet they did. Is it still a danger that they're still out there, Korematsu and Hirabayashi at the Supreme Court level?

MS: Well, I don't think so. I'm not familiar with the citation by the government in those cases. I'm not surprised that that might have happened over time. I know the Supreme Court has never cited them with approval, and I don't think that very many lower courts would cite them with approval. In fact, I know that they wouldn't now. I'm fairly confident that they wouldn't now. Because as you say, they really, once the basis for them which was deference to a military judgment was undercut, they just had to fall by their own weight. Now the lingering question in our country, I think, is to what extent must the courts defer to questions of exigency and national security, to judgments where there are exigencies and national security interests at stake. And I think that's, to some extent will always be a question in our law and under our constitution because there are tensions there. But I think that there's a lesson that we have learned from the internment cases, that you have to be very careful when we just blindly defer to military judgments, that we have to be careful that they have some basis.

TI: And so hopefully, or perhaps asking for, I guess, the administration or the government officials to be a little more transparent? I'm thinking about what happened in the case of World War II. That much of the information that helped overturn Hirabayashi and Korematsu and support the redress movement didn't come to light for thirty, thirty-five years later, because they were confidential top secret documents. And it gets back to some of the reasons why the writ of coram nobis was used. I mean, here we had Justice Department lawyers who were perhaps aware of intelligence reports that would have complicated their case and didn't make the court aware of that. And there are these judgment calls that top government officials make under a lot of pressure. They're worried about national security. So it feels like the courts may always be at a disadvantage because they may not be able to have all the information, the transparency, because of national security, especially if you're in a war or if there's a terrorist action. So that's why I'm trying to... we have this discussion in high school classrooms, and that's the one that is hard to get at.

MS: Well, of course, it's a classic discussion going back to the Pentagon Papers are another example where the issues of national security versus the Constitution, in that situation it was the First Amendment, freedom of the press, whether security interests trump the freedom of the press and the Supreme Court said no. But it's the classic problem of can you publish the day that the troop ship is going to leave to go to battle so that the lives of those troops are in danger. And the answer is no, you shouldn't do that. But can you publish, after the fact, what really went on? Of course you should be able to. There are going to be new situations that arise all the time, that's the way history moves and that's the way the law moves. But I think that each time that we have an episode like that we learn new lessons and become more wary of jumping to conclusions. I think that's the good part of it.

TI: Okay. And it's so much human nature. As we talk about in the classroom, it's classic for politicians and top government officials to, it's better safe than sorry. And so when you see and talk about a lot of these decisions, it isn't really clear at the time. As a historian, it's easier to go back and say, okay, forty years after the fact you have these documents, we can sit there, we can look at it, but what we talk about in the classroom is if these things are happening in the moment, and how can people make better decisions without erring to be too safe. To err on the side of, okay, we'll take away civil liberties from people because it will make us safer, but in the process you're, again, taking away the civil liberties. Again, classic discussion.

MS: Yeah, this is the classic discussion and we'll keep having it. But one scholar whom I think very highly of is from my own law school, Professor Geoffrey Stone, and he wrote a book in which I think the overall theme is, it traces various times in our history when we've experienced repression of various kinds from the alien sedition acts to what happened after World War I and including the internment. And he concludes -- the book is called Perilous Times -- and he concludes that we from time to time get carried away and strike the wrong balance in favor of repression. But that eventually, by studying our history, we learn that we made a mistake. And so each time maybe we'll start understanding our mistakes a little sooner, and maybe that's progress. And I think that's probably right.

TI: Okay, good.

<End Segment 5> - Copyright &copy; 2012 Densho. All Rights Reserved.

<Begin Segment 6>

TI: I now want to switch gears and talk about Gordon Hirabayashi. You mentioned earlier how you've been at maybe an event or conference where Gordon is there, and I just want to get your impressions of Gordon, what you thought of him.

MS: Oh, well, my goodness. Gordon Hirabayashi was a man of enormous energy, and he was, I think, fueled by his beliefs and by his real... it's hard to describe it because he was, to me, he's the only truly heroic person that I had ever known. Because he was so courageous, and he stood up to so much power, and his defiance of government actions that he thought were wrong. And I have enormous admiration for someone who can do that. And he did it and he was proud of it, and he was proud of it from the day that he did it until the day that he died. And you have to admire someone like that. And he was right, absolutely right.

TI: And when did you come to that feeling about Gordon? Was it something that you read or was it just reading his case or was it meeting him?

MS: Well, I think what really brought it home to me was when I spent an evening with him. And he told some stories about his life, and he explained that he had been in Seattle when the Supreme Court decided his case against him. And then he knew that he would have to go to prison. Well, the problem was that the government didn't have any way to get him down to Arizona to service his sentence, because it was the middle of the war and there were no trains and there were no trucks and there was no transportation. And so Gordon Hirabayashi hitchhiked from Seattle to Tucson, Arizona, and I just thought that was remarkable because he wanted so badly to serve out his sentence and to know that he had stood up against injustice and had paid the price. And that was real nobility to me, real courage. I thought that that was quite remarkable. And then later I saw him when they dedicated that site of that prison as a rest area on Mount Lemon in Tucson and they named it after Gordon Hirabayashi. And he was there, and it was just a wonderful moment for him because it was absolute vindication. Can you imagine having the place where you served a prison sentence named after you? What more recognition could you ask for?

TI: I'm trying to, in some ways, I'm thinking of his life, and wanted to present it in a way for students to understand. And so in terms of his life arc, when you look at his life when he was younger, before 1942, the way I would describe him is just this really good kid. Bright, popular, people liked him, hardworking, involved with the church, the YMCA. And you mentioned his conviction. His principles didn't allow him to do what essentially every other Japanese American did.

MS: That's right.

TI: And he was essentially, took a stand. And how it changed his life, in some ways, it made it hard. I mean, he lost all the way to the Supreme Court, he then was convicted of draft resistance because he didn't do that. So his life became hard because of those things. But as you said, he never gave up hope. He just felt so strongly...

MS: No. I think he believed in the American system more than anybody else. And he stuck to that belief. When you imagine how young he was and how new these issues were, that he was twenty-two and decided that he simply was not to go along and not going to do what everybody else was doing. And I think sometimes we think that Korematsu and Hirabayashi were somehow in cahoots or something, but Gordon was in Seattle and Fred Korematsu was in San Francisco and this was a totally individual decision to stand up to the strongest authority in the world, which was the United States military. It's just mind boggling that he would do that and he would stick to it and he would believe that he was right all the way to Supreme Court and beyond.

TI: But also his confidence that the government would do the right thing. It was interesting, when I was interviewing him and talking with him, and when he decided to... when I think it was Peter Irons, or I can't remember which lawyer approached Gordon, like, "Okay, so we want to do this coram nobis and do this," and Gordon's response was, "I've been waiting for you guys." It's just like, "I knew this was gonna happen, what too you guys so long?" and he was raring to go. And when you mentioned his confidence, they just clicked. When he said that, that all along he just believed that this was going to happen, and extraordinary that he would do that.

MS: That's right.

TI: And then for him to be willing to go out there and talk about it, it's been a very powerful thing for the community. This weekend they're having a conference at Seattle University talking about the twenty-fifth anniversary of the coram nobis cases. And I noticed you're going to be a speaker there. Can you tell me a little bit about what you're going to be talking about?

MS: Well, I think my theme is really what Gordon Hirabayashi taught me about courage. And I think I'm going to talk a little bit about my experiences with him and what it meant to my family to learn from me about what he went through and what he stood for. And I think I'm going to review the contributions that I think he has made in terms of being a standard bearer, a role model for all Americans, and really having the courage of their convictions. And he was, I think that that's the main theme, because he's influenced not only me, but he's influenced my family, and he's influenced all of my law clerks who worked with me. In fact, when Gordon died, lots of people that I know sent me copies of his obituary with little notes. And one of them I will read is on the letterhead of the Secretary of Homeland Security, Janet Napolitano, who was my law clerk at one point, sent me a copy of the obituary and said that, "All of (your) law clerks believe that this is one of the most important if not the most important opinion that you have written." And I thought -- and I will say on Saturday -- that I just think of how overwhelmed Gordon Hirabayashi would be to think that the person in the Cabinet most responsible for our nation's internal security is well aware on a personal level of his story and believes in what he did. I think it's just remarkable.

TI: That's extraordinary.

MS: So there are ripples that will go on through history from stories like this.

<End Segment 6> - Copyright &copy; 2012 Densho. All Rights Reserved.

<Begin Segment 7>

TI: I want to go back and talk a little bit about another, what I think are, for me, heroes. And those were, again, the young lawyers who did this. And when I talked with people at Seattle University, especially the law school, one of the things that -- and the reason they're doing this conference is they wanted to encourage young lawyers to take on some of these social causes. And they'll be different today than it was back in the '80s. What thoughts do you have in terms of, I mean, was what they did, was that extraordinary or was that something that you would think that young lawyers naturally should do? What's your thoughts about that?

MS: Well, there are always inspired young lawyers in our country. I think one of the wonderful things about our country is that we have, when we really needed them, had inspired young lawyers who understood that there are injustices that you try to correct. And I think, of course, these lawyers did that in the '80s. More recently we've had young lawyers and law students working to exonerate people who were are on death row who've been unjustly convicted. And there are people working in the immigration field now who are concerned about fairness. And so part of our country's history is that we've had recurrent... we've had issues that young lawyers have become concerned about and have done something about, and that's what lawyers are supposed to do. So I would hope that this will continue, and that these lawyers in the '80s are part of a tradition that will carry on throughout the country. There were abolitionists before the Civil War, and there were those who fought the jailing of Communists, and it's always lawyers, it's up to the lawyers to stand up, and often it's young lawyers who are inspired to do that, which is wonderful.

TI: I agree.

MS: It's a great tradition in our country.

TI: So I finished my questions. Any other thoughts? Any thoughts about the case, Gordon, that you want to share?

MS: About the case? Only that I was very fortunate to have been able to participate in that decision. The cases on our court are assigned kind of randomly, and this was something that I could not have dreamed of happening. I'm very grateful to my colleagues. I was not the senior judge on the panel to write the opinion, and I'm grateful to my senior colleague who permitted me the opportunity, and to my colleagues who joined, and to Gordon Hirabayashi for being a friend and for proving enrichment to my life and a better understanding of what our country's all about.

TI: One last question. You mentioned earlier how this case, getting to know the people changed you, or Gordon changed you. How did Gordon change you?

MS: Well, I think I am much more sensitive to what is going on around me and to the currents that are historical changes that we see. One episode I recall, I was on a program in Washington. It was in the Holocaust Museum, in fact, and it was a program devoted to the role that lawyers played in the rise of Nazi Germany. And the lawyers (and the judges essentially) went along and didn't stand up. And there was a panel discussion afterwards that I was a part of, and the question was asked, "Could that happen in this country?" And everyone said, "Oh, no, that (couldn't happen) here." And I said, "But you see, it did happen. It did happen in the internment." And the person who was on the panel from the Holocaust Museum said, "That's exactly right." And so when I see a kind of a passivity among Americans, the expression of the feeling, "Nothing like this could happen here," I think the internment and Gordon Hirabayashi's story for me is the refutation of that attitude, and I think that I will continue to try to discourage that attitude and rail against it for the rest of my life.

TI: Great answer, thank you.

<End Segment 7> - Copyright &copy; 2012 Densho. All Rights Reserved.