Schwartz, Herman 1931-

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SCHWARTZ, Herman 1931-


Born December 19, 1931, in Brooklyn, NY; son of Jacob and Rose Schwartz; married Mary Cahn, November 20, 1960; children: Susan, Daniel (deceased). Education: Harvard University, A.B. (magna cum laude), 1953, J.D., 1956. Religion: Jewish. Hobbies and other interests: Reading, opera, music.


Home—4619 Chevy Chase Blvd., Chevy Chase, MD 20815. Office—American University, Washington College of Law, 4801 Massachusetts Ave., Washington, DC 20016. E-mail—[email protected].


Professor of law, Constitutional scholar, and human rights activist. Admitted to the Bar of the State of New York, 1957; State University of New York, Buffalo, professor of law, 1966-77; State of New York Commission of Correction, Albany, chairman, 1975-76; U.S. Senate, Washington, DC, chief counsel of Citizen's Subcommittee, 1977-78; U.S. Treasury, Washington, DC, chief counsel of revenue sharing, 1978-79; U.S. Senate Antitrust Subcommittee, Washington, chief counsel, 1979-80; American University, Washington College of Law, Washington, DC, professor of law, 1982—, codirector of Human Rights Center. Advisor and consultant; member of U.S. delegations to United Nations human rights commission conferences on human rights; member of boards, including the Foundation for a Civil Society, Congressional Human Rights Foundation, Chair, national Law Center on homelessness and poverty, 2001-2003; Executive Committee Justice Initiative, Open Society Institute, 2002—; and Helsinki Watch.


American Civil Liberties Union (founder, of prisoners' rights project, 1969), American Law Institute.


American Civil Liberties Union-Niagara Frontier Award for civil liberties work, 1972; William Conable Award for civil rights, 1974; award for outstanding work in the field of corrections, New York State Bar Association, Criminal Justice Section, 1976; Medgar Evers Award, National Association for the Advancement of Colored People, Buffalo, NY, for contribution to integrated education, 1976; certificate of commendation for community contribution, City of Buffalo, 1977; Citizens Counsel for Human Rights Award, Buffalo, 1982.


(Editor and author of introduction) The Burger Years: Rights and Wrongs in the Supreme Court, 1969-1986, Viking (New York, NY), 1987.

Packing the Courts: The Conservative Campaign to Rewrite the Constitution, Scribner (New York, NY), 1988.

The Struggle for Constitutional Justice in Post-Communist Europe, University of Chicago Press (Chicago, IL), 2000.

(Editor) The Rehnquist Court: Judicial Activism on the Right, Hill and Wang (New York, NY), 2002.

Author of reports, including, with wife, Mary C. Schwartz, Prison Conditions in Poland, 1988; with Mary C. Schwartz, Prison Conditions in Czechoslovakia,1989; with Robert Kushen and Abner J. Mikva, Prison Conditions in the Soviet Union: A Report of Facilities in Russia and Azerbaidzhan, 1991; with Joanna Weschler, Prison Conditions in Poland: An Update, 1991; all Human Rights Watch (New York, NY); and Property Rights and the Constitution: Will the Ugly Duckling Become a Swan? Washington Institute Press (Washington, DC), 1987. Contributor to journals and periodicals, including Harvard Law Review, Yale Law Journal, Michigan Law Review, University of Chicago Law Review, Los Angeles Times, News-day, and the New York Times.


Right Wing Justice, due spring, 2004.


Herman Schwartz is a professor of law, a Constitutional scholar, and a strong proponent of civil and human rights, including prisoners' rights. In 1971, he acted as an observer at the Attica Prison riot, and he served on the Commission of Corrections of New York State. Schwartz is the author and editor of a number of volumes that focus on his field of interest, particularly Constitutional law. He has advised numerous former Soviet-bloc nations and others in Africa and Central America on constitutional and legal reform and drafting.

As editor of The Burger Years: Rights and Wrongs in the Supreme Court, 1969-1986, he presents fifteen retrospective essays by various authors who study the work of the U.S. Supreme Court during Warren E. Burger's seventeen years as chief justice. Rodney A. Smolla wrote in the New York Times Book Review that "what the essays reveal is that the Burger Court has been for many years the Rehnquist Court," and commented that Schwartz, "in an excellent opening essay, sets the tone for the pieces that follow, a tone decidedly antagonistic to the Edwin Meese-William Rehnquist axis of jurisprudence. Mr. Schwartz and his contributors treat the Constitution as a document intended to invite what Representative Thaddeus Stevens in 1866 called the 'advancing progress of a higher morality.'"

One chapter concerns the court-access decisions of the Burger Court. Four chapters address First Amendment rights, and there are three on equality, three on criminal justice, and four are concerned with economic regulation. Decisions handed down by the Burger Court include those on abortion and others that reached into the bedroom and the workplace. A Kirkus Reviews contributor wrote that "the record proceeds to assaults upon the Miranda warning, freedom of the press, the wall between church and state, and minority rights. It's generally dismal, according to the articulate libertarian experts." These include Sidney Zion and Yale Kamisar.

American Political Science Review critic Charles Lamb called the essays collected by Schwartz "well-written liberal critiques of conservative Supreme Court policy." "As would be expected," wrote Lamb, "they typically conclude that during the seventeen years under Chief Justice Burger, major strands of Warren Court policy tended to survive—although at times severely battered or altered. The two areas of legal policy identified as experiencing the most dramatic shift to the Right are access to federal courts and national security." The contributors also make predictions as to the trends they expect to see in the Rehnquist Court.

In Packing the Courts: The Conservative Campaign to Rewrite the Constitution, Schwartz studies appointments by President Reagan's judge pickers, not only to the U.S. Supreme Court, but also to trial and appellate courts, of those who shared his conservative views on such issues as school prayer, abortion, criminal justice, economic regulation, and the rights of criminal defendants, and how these appointments increased after the appointment of Edwin Meese as attorney general. Schwartz argues that Reagan used strict guidelines, choosing appointees whose positions against a woman's right to choose and for school prayer, for example, could be predetermined. Choice reviewer R. A. Carp noted that Schwartz "is extremely well-qualified to prepare this text."

Schwartz notes the inconsistencies of the legal agenda of Meese and other conservatives and how they ignored the original intent of the framers of the Constitution with regard to states' rights. Stuart Taylor, Jr. wrote in the New York Times Book Review that Schwartz "is on target with many criticisms.… This ideological filter not only broke with the long-established view that federal judges have a special duty to protect minorities against the abuses of majority rule, it weeded out some highly qualified Republican judicial candidates, awarded nominations to some mediocre candidates, and produced a tilt toward white males."

A Kirkus Reviews contributor called Packing the Courts "an unusually accessible book about the interplay of law and politics—and one that makes a persuasive case against the appointment of judges who ascend to the bench with heavy ideological baggage."

The Struggle for Constitutional Justice in Post-Communist Europe was called "a superior piece of research" by Choice reviewer A. R. Brunello. Schwartz provides an accounting of the role of the constitutional courts in reforming the political structures of such countries as Russia, Poland, Hungary, Bulgaria, and Slovakia. James L. Gibson wrote in Law and Politics Book Review that "those who are interested in understanding the behavior of constitutional courts in transitional regimes cannot afford to ignore this important book.… Professor Schwartz's analysis is carefully detailed and documented, comprehensive, informed by theory, and just simply fascinating."

Schwartz is editor of a collection of essays by seventeen Constitutional scholars that was published as The Rehnquist Court: Judicial Activism on the Right, further documenting the changes in the Supreme Court since the liberal Court of Chief Justice Earl Warren. The liberal essays were also published in Nation magazine. The most noteworthy decision that is discussed is the Court's five to four ruling in December 2000, giving the presidency to George W. Bush over Al Gore, Jr. Essayists include Susan Estrich, Charles Ogletree, Stephen Bright, Norman Redlich, and journalist Tom Wicker. Library Journal's Steven Puro called the volume an "excellent critical overview."

Topics include the free exercise of religion and church-state separation, the narrowing of the rights of the accused, gay rights, abortion, and freedom of speech. Scott Christianson reviewed the volume for Empire Page online, noting that "how the Court has dealt with the environment and civil rights is sufficient to curl your hair. We also lean how the tilt toward business interests and the retreat from corporate and securities regulation has opened the door to global abuses such as Enron and you-name-it. In the process, we get to see how internal inconsistencies and contradictions pop up between one area of law and another. Ultimately, the politics of it all obliterates any pretense of judicial independence, fairness, or justness."



American Political Science Review, March, 1988, Charles Lamb, review of The Burger Years: Rights and Wrongs in the Supreme Court, 1969-1986, pp. 304-305.

Booklist, July, 1988, review of Packing the Courts: The Conservative Campaign to Rewrite the Constitution, p. 1766; December 1, 2002, Vernon Ford, review of The Rehnquist Court: Judicial Activism on the Right, p. 633.

Choice, January, 1989, R. A. Carp, review of Packing the Courts, p. 875; January, 2001, A. R. Brunello, review of The Struggle for Constitutional Justice in Post-Communist Europe, p. 980.

Kirkus Reviews, March 15, 1987, review of The Burger Years, p. 461; May 15, 1988, review of Packing the Courts, pp. 750-751; September 15, 2002, review of The Rehnquist Court, p. 1372.

Law and Politics Book Review, December, 2000, James L. Gibson, review of The Struggle for Constitutional Justice in Post-Communist Europe, pp. 630-632.

National Catholic Reporter, February 7, 2003, Robert Drinan, review of The Rehnquist Court, p. 26.

New York Times Book Review, June 21, 1987, Rodney A. Smolla, review of The Burger Years, p. 18; December 11, 1988, Stuart Taylor, Jr., review of Packing the Courts, p. 33.


Empire Page, (January 14, 2003), Scott Christianson, review of The Rehnquist Court.