An Edah Editorial
by Rabbi Aryeh Klapper
Rabbi Aryeh Klapper teaches Talmud at the Gann Academy in Waltham, is Dean
of the Somerville Beit Midrash, and is a member of the Boston Beit Din. He is
also a member of the Edah op-ed editorial board.
Jewish Lessons on Selecting a Jurist
When Moses creates the first Jewish judiciary, God instructs
him to appoint men of strength, in awe of God, men of truth, haters of corruption.
The first lesson Jewish tradition teaches is that judicial character is more
significant than judicial politics.
Todays nominees will likely make their most critical decisions
about issues that do not yet appear on the legal horizon. What matters most
is not their specific positions but their temperament, and their understanding
of the responsibility of the Supreme Court. The purpose of a constitution is
to place basic principles beyond the reach of the powerful.
The second lesson Jewish tradition teaches consists of a model
for the long-term success of a text-ordered society. In Judaism, Texts restrain
power through authority, and texts gain authority because they are have meanings
that are discovered rather than produced by their interpreters. When judicial
rulings are perceived as reflecting judges political opinions rather than painstaking
scholarship, they lose their authority.
Thus the public perception, justified or not, that Gore v.
Bush was decided on the basis of party affiliation cost the Court tremendously.
The Talmud records similarly that the Great Sanhedrins capacity to prevent disputes
in Israel ended when its members were perceived as ruling on the basis of affiliation
with the School of Hillel or the School of Shammai rather than on the basis
of individual judgment.
The third lesson is that even though the Torahs constantly
exhorts us to care for the poor, nevertheless the Torah bans favoring them in
legal disputes. Over much of the latter part of the Twentieth century, the federal
judiciary has tended to be more liberal than the electorate, and certainly than
the Senate. Liberals have accordingly sought to expand the discretion of the
courts, especially with regard to constitutional interpretation. Some of the
hugely important advances of the civil rights movement were made possible by
these theories.
The liberal gains, however, enabled by creative but intellectually
unconvincing readings of the constitution have made the text less capable of
resisting political agendas. The fear inspired in liberals by the prospect of
a conservative Court, however, brings home the price that has been paid for
those theories. If the text of the constitution were seen as controlling, the
political leanings of potential justices would have far less potential impact.
Jewish tradition offers a straightforward if difficult prescription
stick to the traditional meaning of a text except when urgently necessary. The
Talmud celebrates legal adaptation, but maintains its received lore with almost
fanatic obsession to detail.
When teaching rabbinic students, I gradually bring them to
the realization that authoritative interpreters have nearly absolute power over
texts, and that real creativity is possible. At the same time, I teach them
that this power must be used with extreme caution. If a text can mean anything,
it means nothing.
Sometimes, as for example in the face of disaster, one must
reread the text and find new wine in old barrels through legitimate legal interpretation.
In the aftermath of the destruction of the Second Temple, the Rabbis found creative
ways to compensate for the loss of the sacrificial order, and in medieval times,
the Rabbis found creative ways to justify commercial transactions banned by
the plain meaning of the Talmud. But this creativity took place against a static
traditional background.
Crucially, the Rabbis were continuously aware that their capacity
to innovate stemmed from their predecessors resistance to innovation and their
own reliance on precedence. They realized that judicial discretion is not an
easily renewable resource, but rather a capital account built up by years of
judicial restraint. When they used this resource, they spent it carefully and
wisely.
Finally, the Rabbis understood that the authority of law, and
its capacity to protect the weaker members of society, depends on a combination
of judicial humility and self-confidence. The Talmud teaches that the Torah
cannot be properly learned by any but the exceedingly humble. Moses, the greatest
of lawgivers, is portrayed as the humblest of men. Yet, the Talmud saw excessive
rabbinic humility in a time of crisis as causing the destruction of the Second
Temple. The complex task of a judge is to be exceedingly humble without being
excessively so.
As the nomination hearings of John Roberts occur this week,
the question that we should be asking is not whether he agrees with our political
positions. Rather, the Jewish tradition teaches that we should be asking whether
he has the humility to bow before the text and its history of authoritative
interpretation, and the character, self-confidence, and ingenuity to stand against
that history when necessary to preserve the authority of the text.
