Sunday, April 5, 2020 -
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The president, the judge and the Torah student

A PRESIDENT of the US, we should reasonably assume, has a lot of friends.

It should also be assumed that they receive no better or worse treatment from the government because of it.

A judge, we should reasonably assume, has a background and a wide variety of experience.

It should also be assumed that none of this affects a single ruling.

Overlooked in both the brouhaha over President Obama’s remarks about how the Cambridge police “stupidly” treated his friend, and in the confirmation hearings over Judge Sotomayor, is a basic Jewish ethical exercise: the attempt to transcend one’s own biases.

In the commentary over Judge Sotomayor, the acknowledgement of her ethnicity and background is hailed as a major social advance. Just the opposite, I think. The idea in law is to acquire the capacity for self-scrutiny and to galvanize the will to use it, to turn a scalpel on one’s own biases, inclinations, prejudices, both salient and subtle.

In Jewish law, for example, the more accurately one can analyze one’s own personal outlook and emotions, the better a student of Torah one will become.

I don’t want to hear that Judge Sotomayor has this or the other background and experience; I want to know how capable she is in transcending them to become dispassionate in the application of the law.

It is a specific mitzvah in the Torah not to favor the poor in court. The inclination to favor the underdog is a violation of the fact that justice must represent truth in order to be justice. Of course, one must equally dispatch with any favoritism toward the wealthy, but the Torah acknowledges a more sympathetic temptation: to favor the poor.

Clearly, to overcome any inclination to favoritism, in any direction, it is necessary to work on oneself, to probe one’s own biases. Judge Sotomayor seems to have dragged this into her confirmation hearings as an afterthought, following the acid critique of her earlier statements to the contrary.

And now we have the President of the US and his “friend.” Did not George Washington disclaim any interest in a majestic title so as to differentiate this country from the royalty of Europe, where it was only friends who counted?

Hundreds, if not thousands, of cases of alleged racial profiling by police must have occurred on the day that it allegedly occurred to one person in Cambridge, Mass. The fact that it was a friend of the president ought to have prompted him to do the opposite of what he did. Instead of speaking out on behalf of his friend, he should have said: “It is true that I have reached the conclusion that what happened to Prof. Gates was so egregious that despite the fact that he is my friend, I find his circumstances objectively requiring comment and critique. Nonetheless, it is imperative that a President not convey the idea that if you’re a friend of power, you get presidential support.”

Instead, Obama conveyed that he was speaking because Prof. Gates was his friend. Wrong message. Wrong move. Wrong ethic.

THE Musar tradition in Judaism couples self-scrutiny with religious growth and objective judgment.

I’ll limit my comment on the relationship between Musar and religious growth to a single sentence: A person distorts his own ritual observance if his service of G-d is really a form of service of his own desires, a kind of stoking of his own preferences and inclinations.

My interest here is objective judgement, which is the pinnacle of the process of Torah study. It doesn’t take a very long exploration of any topic in Torah before a crossroads is reached.

For example, as Rabbi Dennis Rapp pointed out in a fascinating lecture this week, what is the status of a child of a mother who converted to Judaism after she conceived the child but before she gave birth?

There seem to be two possibilities.

Either the child was regarded as part of the mother and converted right along with her, and thus, when born, was born Jewish. If so, and if the child were a male, then when he had his bris he was a Jewish child having a bris, which would have to be on the eighth day of his life.

Or the child was regarded as its own entity who underwent an immersion in a mikveh. If so, and if the child were a male, it was not born Jewish. When he had his bris, this was another step of his conversion ceremony, which would not have to be on his eighth day.

What if the child were a female? Would we say that if she were regarded as born Jewish, she would be eligible to marry a kohen (a male Jew of priestly descent)? Or would we say that if she were regarded as a convert, she would not be eligible to marry a kohen?

In fact, the issue is more complicated than this simple dichotomy of yes, the female may marry a kohen, or no, she may not. But for the sake of the point about objectivity and bias I am trying to make, let us assume that there are only two — opposite — ways to understand the case of the female born to a woman who converted while pregnant.

Which way does the law go?

Well, let’s say that you are this female 20 years later and you wish to date  or marry a kohen — and you’re looking at the law. Is it not most likely that you would favor the side that says you were born Jewish?

Yet, the goal of the examination of this law — like the goal in understanding any topic in Torah study — is not to pursue one’s own interest, but to reach an objective judgement. The process of reaching it includes self-analysis, identification of one’s biases, and ultimately setting them aside to reach an appropriate application of the Torah.

This process is what we should expect from judges and political leaders.

This process is the willingness not to have the courage of one’s convictions, but the courage to challenge one’s convictions, to examine them in light of the law, whether one one is up for a judgeship or whether one is a political leader commenting on a legal controversy.



Hillel Goldberg

IJN Executive Editor | hillel@ijn.com


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