CHOOSING JUDGES

In the coming weeks we will hear a great deal about what courts and judges ought to be. The confirmation hearings for Judge Sonia Sotomayor will bring out partisans on all sides who will argue, as they do whenever an important court appointment is up for consideration, that the law matches their particular philosophy. We hear that judges ought to be originalists or that they need to consider the evolving nature of society, or various other constructs. These partisans have in common the notion that the law is set and can be known objectively.

Oh, that it were so. It would make life so much easier and probably cheaper for those who needed to employ lawyers. If only you could present the case for side A, listing all the points on their side, do the same for side B and then compute the sum. The judgment would be objective, understandable, transparent and indisputable for all to see.

If the law could ever be that straightforward, we would not find the following assertion in B. Berachot 6a that
When three sit in judgment God’s Presence joins them, as it is said, ‘In the midst of the judges [God] judges’ (Psalm 82: 1).
As the passage continues we learn that judging is not simply a matter of making peace or finding compromises, but is an act of Torah.

To understand how this passage from the gemara understands the act of judging it is necessary to consider what it means by an act of Torah. In B. Shabbat 78b a Tanna (teacher) of the school of Rabbi Ishmael compares the words of Torah to a hammer hitting a rock. “Just as the strike of the hammer produces many sparks, so every single word that comes from the mouth of the Holy Blessing One separates into 70 languages.” It is a stunning assertion: Every word of Torah can be understood in multiple ways and there are multiple correct ways of understanding! To discern which is the best meaning for any given circumstance requires learning, flexibility, and a willingness to consider many points of view.

If what is true of Torah is true of the law, as our passage suggests, then it is easy to understand that the act of judging is a matter of discernment in the face of multiple possible solutions. The Talmudic commentator Menachem Meiri (13th century Catalonia) argues that even one who is authorized to judge alone on a given topic should not do so. Rather he argues that when three judges deliberate together, engaging in give and take as they understand the issues involved, clarifying and discussing before deciding, they are more likely to discover the most fitting and truthful solution, and they will be protected from making errors. This is a case for having multiple perspectives contending with each other in order to arrive at a decision that is not THE truth, but is the best truth for the moment.

The Talmud lists in B. Sanhedrin 17a various qualifications that judges should have. Most are what you might expect: men [sic] of stature and wisdom, handsome and mature, having a knowledge of witchcraft (read: science and technology) and a mastery of all the known languages of humankind. Rab, the head of the 3rd century Babylonian academy, responds to that list and adds a surprising and radical requirement. He taught: "Do not seat someone on the Sanhedrin who cannot prove, using Biblical texts, that a reptile, an animal that crawls on the earth, is clean." To translate: an animal that crawls on the earth is explicitly unclean according to Leviticus 11:29. In order to declare such an animal clean using the Torah demands one to turn Torah on head and inside out.

Rab’s radical requirement, which emerges from a discussion concerning capital punishment, recognizes the complexity of law. His approach grants law both respect and flexibility. He asserts that every defendant deserves a judge who can see all sides, even the most unlikely sides of an argument, so that the best truth might emerge. It is because the law is so complex that the Presence of God needs to join the three who make up the court.

As you listen to the arguments for and against Judge Sotomayor, listen to hear who makes the law simple and who makes it complex.

(c) 2009 by Rabbi Louis Rieser