Deciding on a Justice, Making Just Decisions

Rabbi Joel Fleekop

Friday, July 22, 2005

How to create a working mother’s revolution and the disastrous affect ipods have had on our ability to prejudge people. I love reading the opinion section of a newspaper because you never know what you are going to find.

Well, I should say you usually don’t know what you are going to find. In recent weeks the surprise has vanished. Every day it seems there was a new editorial written about who should be the next Supreme Court Justice. Should a woman be chosen to fill Sandra Day O’Conner’s seat. Is it time that our nation’s highest court seat its first Latino judge? Should the nominee have spent time on a U.S. circuit court or, as was the case with Justice O’Conner, have a background in politics?

All sorts of questions were asked in the week’s leading up to Tuesday’s announcement, and now that a nominee has been chosen, questions will continue to be posed both in the op-ed section and on the Senate floor.

Judge John G. Roberts is sure to undergo an intense confirmation process. There will be questions about his character and background. He will be asked to explain his choice of college clubs and defend his thirty year old writings in the law review. And, as the Clarence Thomas hearings remind us, any skeletons in Roberts’ closet are sure to be unearthed and discussed in such detail, the hearings may earn CSPAN a sizable fine from the FCC.

There will be questions about the nominee’s background, but there will be other questions as well. During his confirmation process Justice Scallia was asked about Marbury vs. Madison. It is a pretty safe bet that Roberts will be asked about Roe vs. Wade. And of course there will be questions about how Roberts makes decisions. Is he a strict or loose constructionists? Under what conditions will he rule against precedent?

The senate confirmation process will be thorough, as it should be. Whoever is appointed as our next Supreme Court Justice will help make decisions that affect millions of people, determining what rights are guaranteed us by the constitution and which can be limited by the government. The new justice, serving on what is now an evenly divided court, will make decisions that affect us all, and so it is critical that before the Senate confirm Judge Roberts as our newest Justice, they understand how he determines what is just.

Much ink will be spent in newspapers, and much time exhausted on the senate floor debating the merits of Roberts’ decision making process. As we read the editorials and watch the hearings, it is important to remember that Supreme Court Justices are not the only ones who make important decisions. Whether it is about the environment, giving tzedakah, or how to treat one another, we too make decisions of great consequence. Decisions that determine how much justice there is in the world.

And so this summer, as our nation examines and debates the merits of Roberts’ decision making process, we must also take time to think about how best we can make decisions, how best we can determine what is just.

The beginning of our Torah portion appears to offer us guidance by telling us the end of a story that began last week. The story begins with the people Israel going astray. Seduced by Moabite women they begin to sacrifice and worship a foreign god. Adonai sends a plague upon the people Israel and instructs Moses to have the ringleaders publicly punished. When Pinchas, for whom this week’s Parshah is named, sees an Israelite man going off with a Moabite woman he, with a spear in hand, follows them into the private chamber and stabs them both, at once, through their private parts. Pinchas’ actions end the plague and at the beginning of this week’s parshah he is rewarded by God. The story, and particularly the reward Pinchas receives seem to suggest that best way to act justly is to act zealously, to do what we believe God wants.

This seems to be the lesson of the story, but we, a generation that has witnessed the horrible and deadly affects of religious extremism, find this lesson unnerving. The rabbis find it unnerving as well. And so they set out to limit, to reinterpret the story of Pinchas. The Jerusalem Talmud teaches that Pinchas’s actions were universally condemned by the religious leaders of his time and that he would have been excommunicated if it were not for God testifying to the purity of his intentions. The Neziv explains that Pinchas received the covenant of peace not so much as a reward but because he needed its protection from the internal demons that haunted him after his zealous act. And Rav Kook, Israel’s first chief rabbi, makes it very clear that while Pinchas’ actions were meritorious they should not be used as an example to guide our own.

These reinterpretations may be comforting to us and our modern sensibilities, but if Pinchas’ path, the path of doing what we think God wants is not the way to make just decisions, how should we pursue justice?

The answer to that question comes later in our parshah when Moses is forced to make an important decision. The five daughters of Zelophehad, their father’s only descendents, come before Moses and ask if they can inherit their father’s land. In Moses’ time this was a difficult question and he had much to consider: the claims of the daughters, the established precedent, how allowing women to inherit would affect the division of land amongst the tribes. Ultimately Moses makes a ruling and allows the daughters of Zelphehad to inherit the land.

While there is much to learn from the decision about equality and women’s rights, we have as much, if not more to learn by how the decision was made. Moses comes to his decision not by doing what he thinks God wants, but rather by being in conversation with God.

The text tells us that Moses, our people’s greatest prophet literally brought the question before God, Vaykrav Moshe Et Mishpatan Lifnay Adonai.

God answers Moses’ question, but his conversation with God involved much more than just a question and answer session. Moses’ conversation with God began much earlier.

It began with Moses’ willingness to hear the case of five women, five individuals who carried no political or economic power. Five individuals who could offer Moses nothing, but five individuals created in the image of God. By respecting their humanity and by recognizing the divinity that resides within them, Moses begins his conversation with God.

Moses’ conversation with God begins with him speaking to other human beings, and continues with him speaking to himself. Numbers Rabbah teaches that the daughters of Zelophehad did not initially bring their case before Moses, rather it went up through the circuit courts.

First they brought their complaint to the lowest level elders, the captains of tens. They presented their case, but these men could not provide an answer. And so they brought it to captain of fifties. These men too did not know how to respond. They visited the captains of the 100s and the thousands as well, but still they received no answer. Finally they brought their case to Moses. With the daughters of Zelophehad, and judges of every level standing before him, waiting for his answer, Moses had the courage and the humility to admit to himself that he, the people Israel’s greatest judge and utmost interpreter of God’s will, simply didn’t know.

It is then, after being open enough to hear the case, and honest enough to admit his own limitations, that Moses verbally communicates with God and is told what the decision should be, what course of action would be most just.

While you and I may talk to God, we don’t usually get an answer. Nevertheless, we can still make decisions by being in conversation with God.

Like Moses, our conversation with God has to begin with us being truly open to those around us. When we allow ourselves to recognize the other, not just as the provider of a service but as a fellow human being, we have the chance to experience divine. When we allow ourselves to fully recognize the humanity and divinity of the other, we begin the process of making a just decision.

That process continues with us being self aware, aware of the limits to our knowledge, aware of the prejudices that sometimes cloud our vision.

There is an Eastern meditation in which one individual asks another, tell me who you are. For several minutes the person responds by sharing who they are. The first few times somebody does this practice they usually share their biography, where they were born, what they do for a living. Ultimately people come to realize that the question being asked isn’t about their biography but about who they are at that moment. Maybe they are someone who is tired, or excited, frustrated or distracted by something. The exercise doesn’t change how someone is, but it makes them aware of who they are at that moment.

We warm up and stretch before we exercise and we primp a bit in front of the mirror before going out to dinner. So too must we prepare ourselves to make a just decision. We prepare by being self-aware.

And finally, as Moses did, we continue our conversation with God through words. The words with which God communicates with us, however, are not spoken. Rather they are inscribed in our sacred texts, texts that teach the values of our faith and share the wisdom of generations.

In our Torah portion God responded directly to Moses’ question, telling him that the claim of Zelophehad’s daughters was just. We probably won’t receive as direct an answer. But by opening the books of our tradition and continuing our conversation with God we will get guidance, guidance that along with self awareness, and recognition of the other, will help us make just decisions.

In the coming weeks and months the decision making process of Judge Roberts is sure to come under close examination. Many of us will spend hours watching the hearings and reading the op-ed page in an attempt to learn how he decides what is just. As we pursue that knowledge let us also pursue the knowledge of how we can make just decisions. And let us always remember that while we may not be supreme court justices, we have been supremely commanded to pursue justice, tzedek tzedek tirdof.