Courts

Federal Judge Dissed In Oscar-Nominated Feature Film

And a Supreme Court feeder judge, too!

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Judge Gerhard A. Gesell (U.S. District Court for the District of Columbia)

Congratulations to the 2018 Oscar nominees, announced this morning from the Samuel Goldwyn Theater in Beverly Hills. Congrats in particular to Best Picture nominee The Post, which we media people appreciate as a celebration of a crucial fight for freedom of the press, the Pentagon Papers case.

But one prominent journalist, legal-affairs writer Kenneth Jost, does have an objection. As he writes in the National Law Journal:

The new movie “The Post” celebrates one of the country’s landmark battles for freedom of the press and features two of the journalist heroes of the Pentagon Papers case well-known to Washington audiences: Katharine Graham, publisher of The Washington Post, and Ben Bradlee, the newspaper’s executive editor. But the film passes over another hometown hero: Gerhard Gesell, the federal judge who rebuffed the Nixon administration’s effort to stop the Post from publishing stories on the papers after it had matched The New York Times in obtaining a copy of the secret study of Vietnam War policymaking….

Gesell, portrayed by journeyman actor Angus Hepburn, appears only briefly in the film as he presides judiciously over the federal court hearing in Washington on the Justice Department’s effort to match its success in winning a temporary injunction in New York against the Times’ further coverage of the study. Gesell is identified by name only toward the end of a long list of credits. His decision is referenced only glancingly with no depiction of the hand-down or excerpts from the judge’s handwritten ruling.

The omission is a posthumous slight to a federal judge who served bravely and well for a quarter century in a succession of high-profile cases. Gesell was standing up not only to the Nixon administration but also to other federal judges.

Indeed. As noted in his New York Times obituary, the Pentagon Papers case came before 29 federal judges, and Judge Gesell was the only jurist who did not issue a temporary restraining order to block publication of the papers. But Gesell was vindicated in the end, when the Supreme Court ruled 6-3 in favor of the newspapers seeking to publish.

It seems that the justices held Judge Gesell in high regard. Despite sitting on a trial rather than appellate court, he was a “feeder judge,” managing to place several of his clerks in coveted Supreme Court clerkships.

If you’re interested in either journalism or law, then check out The Post (which Jost praises for the performance of Meryl Streep, who scored a record-setting 21st acting nomination). But as the credits roll, take some time to reflect on the legacy of a great judge given short shrift by Hollywood.

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Opinion: Portrayal of Federal Judge Gerhard Gesell in ‘The Post’ is a Posthumous Slight [National Law Journal]
Judge Gerhard Gesell Dies at 82; Oversaw Big Cases [New York Times]

DBL square headshotDavid Lat is editor at large and founding editor of Above the Law, as well as the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.

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