Inexplicably, the Justice Department asked the U.S. Supreme Court to deny a rehearing of Von Saher v. Norton Simon Museum of Art at Pasadena, in which the 9th Circuit Court of Appeals ruled that California was powerless to extend the statute of limitations for claims involving Nazi-looted art. The Supreme Court in June did as it was asked and declined to take the case.
State laws have been the cornerstone of Holocaust-related restitution claims. J. Christian Kennedy, former State Department special envoy for Holocaust issues, noted four years ago there is "no specific role for the federal government in the art restitution process."
But in Von Saher, the 9th Circuit ruled: "It is beyond dispute that there was no role for individual states to play in the restitution of Nazi-looted assets during and immediately after the war." It reached its conclusion by overlooking traditional federalism and states' rights principles. It also undermined the work of the World War II Army Monuments Men (and Women), who risked their lives to secure Nazi-looted art in the expectation that it would be returned to its owners.
After World War II, Jack B. Tate, U.S. Department of State acting legal adviser, in 1949 expressed to the Court of Appeals for the 2nd Circuit that it was the "policy of the executive" with respect to Holocaust-era property claims "to relieve American courts from any restraint upon the exercise of their jurisdiction to pass upon the validity of the acts of Nazi officials."
Even during World War II, the State Department issued warnings to those trafficking in Nazi-looted art that a day of reckoning would come. Ardelia Hall proclaimed in the Department of State Bulletin in 1951: "For the first time in history, restitution may be expected to continue for as long as works of art known to have been plundered during a war continue to be rediscovered."
In 2009, the Terezin Declaration, signed by 46 nations, proclaimed that public and private institutions should "ensure that their legal systems or alternative processes ... facilitate just and fair solutions with regard to Nazi-confiscated and looted art, and to make certain that claims to recover such art are resolved expeditiously and based on the facts and merits of the claims."
This was necessary in no small part because some of our most prestigious museums have been duping judges into fearing intrusion upon the executive's foreign affairs domain if they were to proceed in resolving disputes of World War II-related cases dealing with looted art.
The State Department, under the leadership of Stuart Eizenstat, also led the world to adopt the Washington Principles, encouraging re-examination of collections and the restitution of tainted art in 1998. Museums have been defeating claims in court based on technical defenses.
By maintaining that California was powerless to extend its statute of limitations to permit continuations of Nazi-looted art claims, the Justice Department sided with the museums to conjure up a nonexistent looming foreign affairs problem surrounding adjudication of a claim to a painting hanging on a wall in Pasadena.
The government of the Netherlands, the only government that could be directly affected by the case, has even stated that it has no issue with U.S. adjudication. The Supreme Court has rejected almost every claim ever presented to it that federal policy somehow preempts state law.
The U.S. Supreme Court should not have destroyed California's attempt at fundamental fairness for Holocaust survivors by discouraging further claims. Hope is dwindling for the power of state law to act as the cornerstone of restitution in this country.
Jennifer Kreder is associate dean of Chase College of Law at Northern Kentucky University.