This article originally appeared in the Jewish Free Press, Calgary

"With Righteous Judgment":*

Jewish Reflections on the Clarence Thomas Appointment

News Item:

1991--The appointment of Clarence Thomas to the United States Supreme Court is accompanied by lengthy Congressional hearings, much of which focus on accusations of sexual harassment in his past.

During the recent debates over the confirmation of U.S. Supreme Court Justice Clarence Thomas, I found myself in the company of American relatives who remained glued to their televisions throughout. My initial reaction was disdainful; certainly no Canadian would ever develop such a fascination over a judicial appointment.

On reflection however I have come to consider the matter from the perspective of Jewish tradition, and my assessment has become much more favourable. Judaism has always prided itself in its legal system, and accordingly has paid much attention to the quality of its judges. More than this: We have gone so far as to place the tallit of religious and moral leadership upon individuals whose fundamental qualification is as judges--for this of course is the true meaning of title "rabbi," that the individual so certified is deemed fit to serve as a judge in a religious court. All the other functions that we currently associate with the job of rabbi are either secondary, or recent innovations copied from Christian models.

The Torah speaks in several places of the requisite qualities of a Jewish judge. For example:"They shall judge the people with righteous judgment. Thou shalt not wrest judgment; thou shalt not respect persons; neither shalt thou take a gift ..." (Deuteronomy 16:19-20). For Rashi this was not going far enough. We do not need the Torah to tell us that a judge must be honest and competent in the performance of his duties. What the Torah is demanding must be more than this: that the judge be upright in all aspects of his life.

Maimonides compiled an imposing list of qualifications for members of a Jewish court. In addition to various intellectual achievements (which include expertise in medicine, mathematics and astronomy), he insists that they must be "free from all suspicion with respect to conduct" even in areas that do not bear directly on their judicial activity.

Thus the sort of meticulous investigation into a candidate's personal behaviour that characterized the recent American Senate hearings would not have been out of place in a Jewish judiciary.

Who, in a Jewish legal system, would have been responsible for the appointment of the new judge? This was often a source of intense controversy among different factions in the Jewish community, a controversy which was fuelled by the dual nature of the institution, which is at once an administrative and religious one. At various points in history both the religious and the secular leaderships would insist on the right to appoint new members of the court. As a result of such disputes during the talmudic era, it became necessary for a new appointee to receive confirmation from both the head of the Yeshivah (representing the religious branch) and the Nasi or Exilarch (representing the secular branch).

With the decline of the centralized administrations of the ancient world, the appointment of communal judges and rabbis came more and more to be a prerogative of the secular communal leadership. Under the new arrangement the judge was often a salaried employee of the community over which he was supposed to hold authority. This situation produced considerable discomfort among the judges concerned.

We can discern some of these hesitations in the following remarks by Rabbi Ephraim Luntshitz, a noted preacher in 16th-17th-century Poland. In commenting on the wording of Deuteronomy 16:18 "Judges and officers shalt thou make...and they shall judge the people with righteous judgment," he is bothered by the shift in focus from "thou" to "the people." Rabbi Luntshitz interprets this as a separate warning to those community leaders involved in the appointment of judges, that they must take care to hire individuals who will exercise authority not only over the general public, but even over those very leaders who hold the power over the appointments. Rabbi Luntshitz bluntly contrasts this ideal with the reality of his own generation, where communal leaders abuse their authority by appointing judges whom they can hold under their thumbs.

The uneasiness expressed by Rabbi Luntshitz is probably not unlike that felt by American judges in the face of the political pressures that threaten to compromise their authority and integrity.

It seems to me that as Jews we do have much to learn from the intense involvement of the American public in the selection of its judges. They have learned the ancient Jewish truth that a society can be judged by the quality of its judges.

This article and many others are now included in the book

Why Didn's I Learn This in Hebrew School?Why Didn't I Learn This in Hebrew School

by Jason Aronson Publishers

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