The (Jewish) Law and Mr. Kavanaugh

In one respect, last week’s Senate Judiciary Committee hearing into the allegations made by Dr. Christine Blasey Ford against U.S. Supreme Court nominee Judge Brett Kavanaugh, and the continuing flood of news reports about this issue, are a halachic nightmare. On the other hand, Jewish law has much to offer us about three aspects of it.

The nightmarish aspect involves elements of an entire category of halachic misdeeds known as ona-at d’varim, verbal wrongs, which make up just over five percent of the Torah’s 613 commandments. The subcategory most relevant here is lashon hara—the spreading of derogatory information about someone even though that information is true.

According to the Babylonian Talmud tractate Bava Metzia 58b, “If a person is a repentant sinner, do not say to him, ‘Remember your past deeds.’ If he is the son of converts, do not say to him, ‘Remember the deeds of your ancestors….’”

The first part of that text makes it nearly impossible to question someone about what he or she may have done as a teenager (such as asking Kavanaugh whether he ever got so drunk as a youth that he blacked out). The “son of converts” part forbids embarrassing someone regarding his family background. This, obviously, would preclude mentioning that Kavanaugh’s father was an alcoholic.

We who watched or listened to the hearing, or read reports about it and some of the other charges, or watched the Saturday Night Live skit mocking it, neither made any accusations against Kavanaugh, nor questioned him about it. That, however, is where the nightmare begins, because it is equally sinful to listen to verbal wrongs (and by extension, to read about them); and it is just as sinful to discuss them with other people. (See BT Pesachim 118a.)

On the other hand, there is the issue of the need to know. Rabbi Yisrael Meir Kagan, who literally wrote the book on verbal wrongs (“Sefer Chofetz Chaim,” published in 1873), discussed the need to know in Chapters 9 and 10 of the section on the Laws of Gossip. Two people, Reuven and Shimon, are about to enter into a partnership. A third person, Levi, has firsthand knowledge that Shimon is dishonest. “He must tell him,” ruled the Chofetz Chaim. Levi has no choice but to tell Reuven what he knows.

To the extent that we the people are hiring Kavanaugh to be an associate justice of the Supreme Court, we the people are in Reuven’s position, making it permissible for us to hear and read all about the allegations being made, although perhaps not permissible to discuss them. This is where it gets truly dicey, however, because the members of the U.S. Senate are doing the actual hiring, so we may not have any permission.

Then again, we do get to judge the senators when election time comes rolling along, and this issue likely will weigh in on that judgment. Whether that is sufficient to suspend the bad speech rules is not easily or even comfortably answered, halachically speaking.

This brings us to the three aspects where halachah can inform a discussion of Kavanaugh’s fitness to serve as a jurist, those aspects being his anger, his ability to be impartial, and the proper role of those charged with determining whether to confirm him.

Both the Tanach and the Talmud have much to say about the ramifications of anger. Proverbs tells us the person who is quick to anger is neither “a man of understanding” (17:27), nor a wise one (29:11). Rather, he is a “a fool” (29:11), and very likely is prone to committing many offenses (29:22). Based on this, “Rav Nachman bar Yitzchak said: With regard to one who gets angry, it is acknowledged that his sins are more numerous than his merits.” (See BT Nedarim 22b.)

Considering the nature of the allegations against Kavanaugh, perhaps the most relevant comment came from the late third century sage Rabbi Ilai (the “builder of the Torah,” according to a colleague). “In three matters do we get to know a person’s true character,” he said: “In his cup [meaning how he acts when he is drinking], in his pocket [meaning how he acts when he becomes wealthy, or perhaps gains power], and in his anger,” which needs no explanation. (See BT Eruvin 65b.)

The impact anger can have on a jurist’s ability to rule on matters of law is equally relevant. According to Rabbi Yirmeya of Difti: “Anyone who gets angry forgets his learning and increases foolishness….” (Ibid.)

There is much discussion in BT Pesachim 66b about this consequence. It was noted, for example, that the great sage Hillel and even Moses himself forgot important aspects of the law because of their anger.

Next, we come to the question of judicial temperament. Here, we need look no further than the Torah’s own words to judge whether Brett Kavanaugh is fit to be a judge according to Jewish law.

At the hearing, Kavanaugh accused Democrats, especially on the left, of replacing the Senate’s “advise and consent” mandate with “search and destroy.” He called “the behavior of several of the Democratic members of this committee at my hearing a few weeks ago…an embarrassment,” said last Thursday’s hearing was not only “a circus,” but was “a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election…, revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups.”

Setting aside the anger that prompted those words, and the many other partisan attacks, some quite personal, he uttered during his testimony, Kavanaugh clearly presented himself as someone who has no use for or respect for Democrats, especially liberal ones.

That alone should disqualify him, based on Torah law. Deuteronomy 16:18-20 stands out here. After telling the people to appoint “magistrates and officials for your tribes…[who] shall govern the people with due justice,” Moses adds: “You shall not judge unfairly: you shall show no partiality…. Justice, justice shall you pursue.”

From what we saw, Brett Kavanaugh showed himself incapable of doing that, assuming he was not merely so overwrought that he said things he did not mean. Both this and his anger need to be thoroughly investigated, along with the allegations of sexual misconduct made by the highly credible Dr. Ford and several others.

That brings us to the last issue where Torah law has something to say. Almost any one of these allegations, and certainly the sexual allegations, should disqualify Kavanaugh if true, but getting at the truth is not what the Republican majority seems interested in doing.

Torah law, on the other hand, allows no leeway. One law in Deuteronomy goes through three iterations: “And you thoroughly inquired into the matter, and investigated it, and interrogated [witnesses], and behold it was true, what you heard is correct….” (13:15) “And it was told to you, and you heard of it, and you thoroughly inquired into the matter, and behold it was true, what you heard is correct….” (17:4) “and the judges shall thoroughly inquire into the matter.” (19:18)

In a sense, these iterations would seem like overkill, as if someone ran through an ancient version of Roget’s Thesaurus to show off his vocabulary. Taken together with all its reiterated synonyms, these verses require Israel’s officers and judges to be as thorough as humanly possible in investigating every claim, and specifically requiring them to subject witnesses to what we would call today a brutal cross-examination.

Unfortunately, the Torah does not also require that of the U.S. Senate.

About the Author
Shammai Engelmayer is rabbi of Temple Israel Community Center, in Cliffside Park, and Temple Beth El of North Bergen, both in New Jersey. A former president of the North Jersey Board of Rabbis, he chose to work as a journalist after being ordained. That career helped him hone the skills that serve him so well on the pulpit, and helped him become a popular adult Jewish education teacher in Northern New Jersey.
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