Judicial Confirmation Hearings for Ourselves

Rabbi Joel Fleekop

Saturday, July 25, 2009

In 1835 a major dispute erupted in the Jewish community. The rift was over who owned the rights to print and sell the Talmud. Printers in the town of Slavita, in the Ukraine, claimed exclusive publishing rights as did those in Vilna. As the debate raged on and became more contentious, many of Europe’s most prominent rabbis lined up in support of one side or the other.

Israel Salanter, the founder of the Musar movement also offered his opinions on the dispute. But unlike many of his colleagues, he did not take sides. Instead he questioned the other rabbis’ behavior. According to the Tenu’at Ha-Musar, Salanter said, “Why is it only in a case which involves two very wealthy and prominent families and entails large sums of money that there is so great an interest among the Torah authorities. Why has this never happened in a dispute between two poor people? After all, the Torah tells us that one is not to differentiate between large and small sums of money.

The understanding of Torah referenced by Salanter is based on the guidance Moses offers judges in this week’s parshah. Part of Moses’ charge to newly appointed judges, Deuteronomy 1:17, asserts, “You shall hear the small as well as the great.” Commenting on this verse, the great French scholar Rashi explains, “Let a lawsuit involving a mere perutah be as important to you as one involving a hundred maneh” (B. Sanhedrein 8a).” In other words, treat a case involving a small amount of money the same way you treat a case in which a great sum is contested.

Rashi’s comment can be traced back to a teaching of Resh Lakish recorded in the Talmud – the very same book the publishers and rabbis were fighting over. Resh Lakish’s statement appears as part of a series of instructions for judges. These Talmudic teachings, and others within Jewish tradition, stress the importance of giving every judicial decision – whether involving a common or exceptional question of law, whether of seemingly great or little consequence, a proper and unbiased hearing.

Judaism identifies fairness and patience as important qualifications for judges. As Rabbi Berechia taught, in the name of his teacher, Rabbi Haninina, judges must have seven attributes: they must be wise, understanding, full of knowledge, able, diligent, truthful, and despise corruption.

In recent weeks, the attention of congress and the nation turned to the qualifications of a specific jurist. For four days members of the Senate, in fulfillment of their constitutional responsibilities of advice and consent, questioned Judge Sonya Sotamayor. In these strange hearings – in which Senators judge a judge, very little was actually said. Like other recent nominees, Sotomayor refused to answer questions on hot button issues explaining that they may come before her in the future. Her approach will likely be successful. As a July 12th New York Times article advised, “Path to the Supreme Court: Speak Capably, Say Little.”

Despite the dearth of new information and the all but definite outcome, Sotamayor’s confirmation hearings captured the attention of the media and much of the nation. Given the power of the court, and the unique, lifetime appointment of its judges, our interest is justified.

We are right to care about which judges sit on the Supreme Court; to examine their qualifications and abilities to issue a fair and informed ruling. But what about when we serve as judges.

Whether we are judges, teachers, grandmas, doctors, students, or rabbis, everyday all of us make important decisions -- judgments that affect our lives and those of others. And so, each of us -- regardless of profession or station in life -- can find meaning in the guidance Jewish tradition offers for judges – specifically the calls for fairness and patience.

As one might expect, Judaism repeatedly prohibits taking bribes – even, as the Talmud teaches, bribes in the form of flattery -- and warns against prejudging based on appearance or reputation.

But Judaism also recognizes that fairness also means fairness in procedures. Tradition teaches that one side of an argument should not be able to speak without the other side present and that the judge should not grant one party a seat while requiring the other to stand. Along this line, Rabbi Chaim ben Attar, in his commentary, Or HaHaHayyim writes, “a judge’s behavior must be equally balanced – if he looks at one he should look at the other, if he averts his gaze, it should be from both or from neither.”

In addition to fairness, good judgment also requires patience.

In a world where there is simply too much to do, it is very easy to rush to judgment, especially when a matter seems small or insignificant. But Jewish tradition reminds us that what is a small matter to us, may in fact be of great importance to others. And so it is that in addition to Resh Laskish’s urging to treat all cases equally, the Talmud calls upon us to let those share their point of view for as long it takes for them to feel heard. Furthermore, a midrash, commenting on this week’s Torah portion, teaches that even if you previously dealt with a similar issue any number of times, you must be patient in judging the specific question before you. Patience is essential for good judgment – as Rava said, “Blessed be the judge who allows the leavening of his judgments.”

Adam and Lauren, as Bnai Mitzvah you are now responsible for your own actions – including the decisions and judgments you make. I hope that you, like all of us, will allow your judgments to leaven – that you will be fair and patient when it comes to making decisions.

In this week’s Torah portion, parshat D’varim, Moses asks the tribes to select wise, discerning, and knowledgeable individuals to serve as leaders. Each of us, as bnai mitzvah, is charged with being a leader in the work of Tikkun Olam – the work of repairing and bringing holiness to the world. And so I pray each of us will strive to be wise, discerning, and knowledgeable in our actions and decisions.