Shabbat shalom.
No matter where I have worked, I have always sought to work with people of the highest ethical standards, but mostly for a selfish reason … I wanted to be able to sleep at night.
As a lawyer, this was somewhat troublesome … as you may know, in many states around the country, judges have to run for election to the bench. They have to put up signs and billboards and all of these things cost money … and the people most likely to give them money are the people they know … and the biggest group of people they probably know is? Lawyers.
As a baby lawyer fresh out of working for a judge in the court system, I remember asking my boss (and mentor) how he decided to whom he should give … and he said, "I give to them all. The list of donors is made public, which is a good thing, but I might not pick the right person, so I have to give to them all."
A few years later, I remember being called into a Senior Partner’s office and being asked to listen to a voicemail message that bothered him … the voice on the message said:
"Hi, ____ , this is Judge _____. I was looking over the list of donors to my re-election campaign and realized that your firm hasn’t taken the opportunity to make a donation to my campaign yet. I just wanted to remind you that you still have time to make one if you’d like … and see you in court soon."
OK, so yes, this WAS a court in Las Vegas, but WOW. My boss and I both sat there stunned. This man had been a member of the bench for many years and, while I always thought he wasn’t the brightest bulb on the tree based on some of the decisions he made, I never expected this kind of “in your face” politicking.
Believe it or not, these same issues are not new … they have been around thousands of years, and are included in this week’s Torah portion, Shoftim, which is most often translated as "magistrates" or "judges."
This week, Moses tells the people that they are required to appoint "magistrates and officers for their tribes," and that "they shall govern the people with due justice." But there must have been a problem with the way justice had been administered in the past, because God goes even further and specifies the following things: that judges are not to judge unfairly ... that they shall show no partiality ... and that they shall not take bribes because, as the Torah says, “for bribes blind the eyes of the discerning and upset the plea of the just.” This is followed by one of the most famous lines in the whole Torah, “Justice, justice shall you pursue, that you may thrive and occupy the land that Adonai your God is giving you.”
Within the past few days, we have witnessed an extraordinary piece of history, for several reasons. This is the first time that three women have ever sat on the US Supreme Court ... so now women make up 1/3 of the Supreme Court, even though we make up slightly more than 50% of the population? Well, I suppose it is better than before. : )
Even more interesting is that, with the addition of Elana Kagan, there are now three Jews sitting on the Supreme Court. Hmmm … Jews are 2% of the population and represent 1/3 of the Court … honestly, I’m not sure what to make of that except that a lot of Jewish parents have raised a lot of Jewish kids who turned out to be a lot of Jewish lawyers … and maybe that our heritage and tradition of studying the laws in the Torah and other Jewish texts makes our American system of jurisprudence pretty darn attractive. : )
To me, though, this week’s appointment of Elana Kagan to the Supreme Court and the recent appointment of Sonjia Sotomeyer represent one of the biggest challenges that face our country today.
Good people of great scholarship who have addressed the hard issues in America have the hardest time getting appointed to the highest Court in the land. Every administration, democrat or republican, has to find a really smart person they think will decide their critical issues the way they want … who hasn’t actually expressed an opinion publicly on pretty much any topic important to Americans today. They can’t have been too friendly with any one political party, they can’t have actually stood for anything … or they might be disqualified.
An old episode of the West Wing addressed this very concern when the person furthest to the right on its Supreme Court was killed off … but the liberal administration knew they couldn’t get the person they wanted (someone perceived to be far to the left) approved. The solution (and, of course, this only happens on television) was to ask the justice furthest to the left to step down so both political parties could get someone they perceived to be in their best interest.
Simple solution, right? Everybody gets what they want.
Sure, but the coolest part of the entire episode, at least for a former lawyer watching, was hearing one of the characters talking about the need for divergent opinions on the court - that it is bad for a country to have to settle for the middle-of-the-road, least offensive, most “vanilla” candidate who can get approved and that, if we do so, we lose the beautiful voice of the minority, or dissenting, opinion … the minority opinion that can later become the jewel that is found and inspires great change in this country.
Remember the great case of Plessy v. Ferguson, in which our United States Supreme Court said that “separate but equal” was constitutional?
The lone dissenting and now-famous voice in the Plessy v. Ferguson decision was from Justice John Marshall Harlan, an interesting character because he and his family owned slaves in Kentucky, and during the Civil War he staunchly defended the right to slavery. At the same time, however, he also joined the Union Army to fight to preserve the Union. After the Civil War ended, he changed his attitude on slavery and became a staunch critic of it and defender of civil rights for African-Americans.
Today, Justice Harlan could never have been a US Supreme Court justice.
Politics and justice shouldn’t mix. As the Torah teaches, Shoftim, judges, should neither feel pulled nor obligated to one side or the other … either because they have to ask the lawyers appearing before them for money to run for election or because they have to be quietly beholden to political parties in order to get appointed. We should reconsider how judges become judges … there has to be a way to take the politics out of justice because some of the greatest changes that have ever happened in the US has come through our judicial system … there has to be a better way.
My prayer for our country is that our newly-appointed Justice Kagan, and actually all judges, both who have to run for office as well as those who are appointed to positions (some for their lifetime), do exactly what the Torah teaches: that they not be swayed by the lure of bribes, that they shall always judge fairly, and yes, justice, only justice shall they pursue.
Shabbat shalom.
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