Judging Fairly

Rabbi Joel Fleekop

Saturday, July 3, 2010

This week the Senate began confirmation hearings of Supreme Court nominee, Elana Kagan. If confirmed, Kagan will become the third Jew and, in support of Maddie’s message of women’s expanding role in society – the third woman currently on the court. Most importantly, she will be one of nine individuals who sit on our nation’s highest court – one of nine people whose opinions and decisions become the final word in American jurisprudence.

In setting that final word, the Supreme Court has an interesting process in that they not only issue a ruling, but also opinions – usually a majority and a dissenting opinion -- in which the justices explain the reasoning behind the way they ruled. Opinions offer legal scholars a view into the minds of the judges and give direction and guidance in future cases, where the ruling may be cited as precedent.

In this week’s Torah portion, Parshat Pinchas, Moses argues a case before the most Supreme Court – God’s court on high. Moses asks -- Dayan Hamet – the ultimate judge of truth, to decide whether the Daughter’s of Zelophehad should be allowed to inherit. As Maddie explained to us earlier, God rules that the daughter’s petition is just – that they should be allowed to serve as their father’s heirs. Moses implements the ruling, but it seems he misunderstood the intention behind God’s decision – that he could have benefited from an accompanying judicial opinion.

Immediately following the discussion of the daughter’s of Zelophehad, Parshat Pinchas continues with Moses asking God to appoint a successor who will take over following his death.

The rabbis wonder about the timing of Moses’ request, and in the collection of midrash known as Numbers Rabbah provide an answer. The sages teach, “when the daughters of Zelophehad inherited from their father, Moses argued: the time is opportune for me to demand my own needs. If daughters inherit, it is surely right that my sons should inherit my glory.” In other words, Moses thought God’s ruling in the case of the Daughters of Zelophehad established the primacy of lineage.

But that was apparently not the reasoning behind God’s decision. For as we continue reading we see that Moses’ appointed successor is not Gershom or Eliezer, the Israelite leader’s two sons, but rather Joshua.

So what, we might ask, was the logic or message behind God’s ruling in favor of the daughter’s of Zelophehad and later the decision to appoint Joshua as leader.

The rabbinic commentaries – the closest thing in Jewish tradition to a judicial opinion, suggest that the principle behind the decisions is that people deserve to be judged by what they do control, rather than those things they are powerless to affect.

Zelophehad’s children had no control over the fact that they were female, a trait wrongly seen during their time as a negative. But they did have control over whether or not they were loyal daughters who cared for their father and his legacy. And so they spoke up. According to the Talmud, Masechet Baba Batra, their plea was granted for, “the daughters of Zelophehad were wise women, they were exegetes, and they were virtuous.” Similarly, in Masechet Sanhedren, Rabbi Nathan teaches that the daughters merited having this section of inheritance laws recorded on their account.

Unlike the daughter’s of Zelophehad, Moses’ children were born to every advantage – they were male and from the most well connected of families -- after all their father did have a direct line to God. But when it came to the things Gershom and Eliezer determined themselves, the rabbis teach they came up short. Bamidbar Rabbah teaches Moses’ sons, “idled away their time and did not occupy themselves with the study of Torah.” In contrast Joshua, the successor chosen by God to lead the Israelites, served Moses loyally for many years all the while making a habit, according to the rabbis, of waking up early and staying up late so that he could help at the beit midrsah – the school of Torah learning.

In ruling in favor of the daughter’s of Zelophehad and in choosing Joshua to succeed Moses, God expanded notions of equality by illustrating that what matters most is an individual’s actions – that people should be honored because their own history and behavior show them to be deserving.

The precedent set by these decisions is one that is upheld time and again throughout Jewish tradition. In Deuteronomy we are told not to punish children for the mistakes of their parents, and parents for the mistakes of their children. Similarly, the prophet Ezekiel asserts, “The son shall not bear the iniquity of the father, neither shall the father bear the iniquity of the son; the righteousness of the righteous shall be upon him, and the wickedness of the wicked shall be upon him.”

Rabbinic literature also teaches against judging people, either favorably or unfavorably, for things they do not control. Rabbi Hillel, one of Judaism’s greatest teachers, came from very humble beginnings. His family was very poor and Hillel had to work odd jobs to pay for his education.

The Talmud, Masechet Yoma 35b tells the story of one winter day when Hillel could not find work and thus did not have enough to pay the fee to enter the academy. Desperate to hear what wisdom his teachers would share that afternoon, Hillel climbed up on the roof so he could listen through the skylight. After a little while it started to snow, yet Hillel continued to listen to his teachers below.

As the lesson continued into evening, fatigue and cold eventually put Hillel to sleep, where he remained all night, half frozen. When discovered in the morning, he was brought inside and warmed by the fire. His teachers could have scolded him. What right did someone too poor to pay for school, have to study Torah? But instead of focusing on what Hillel did not have, what was in many ways beyond his control, they focused on what he did have, what he did control - a love of Torah that would ultimately make him one of Judaism’s preeminent sages.

Mishneh, Pirke Avot 2:12 teaches, “Hitkin Etzmecha Lilmod Torah, Sh-Ayna Yerusha Lecha -- Qualify thyself to study Torah, since it does not come to thee by inheritance.” May we, though our own merit and determination; be blessed with the wisdom of Torah. And may that wisdom guide us to see in others and ourselves, not the circumstances of birth, but rather the talents and traits forged through hard work and ethical living.

So may we judge fairly.

So may we uphold the precedent of our tradition.

Shabbat Shalom.

– and may we, as we go forth use that wisdom Our ability to succeed, whether in the study of Torah, business, sports, or any other endeavor, should be decided by our own talents, characteristics, and determination.