‘True justice’ lacking in top court pick(s)

Justices of the US Supreme Court are supposed to be chosen based on their judicial knowledge and temperament, not on their political beliefs. They must be willing to rule in opposition to their own political beliefs when the arguments warrant it.

President Donald Trump acknowledged as much when, on Monday evening, he announced that US Court of Appeals Judge Brett M. Kavanaugh was his nominee to replace retiring Associate Justice Anthony M. Kennedy on the top court. “What matters is not a judge’s political views, but whether they [sic] can set aside those views to do what the law and the Constitution require,” he said.

While his statement was right on point, the path he chose to make his choice suggests otherwise. In that, he is not much different from all of his recent predecessors. Presidents nominate someone to the Supreme Court whom they believe will uphold either their own political views, or the views of their political base. The last thing they want is to put someone on the top court who will judge each case based on what is just and right, and in the best interests of the nation as a whole, regardless of whether that judgment comports to a particular political view.

Trump is no exception. During the 2016 campaign, he even trumpeted the fact that all his choices would be political — chosen from a list that had been approved by the Federalist Society and the Heritage Foundation, two very conservative organizations.

Jewish law takes a whole different approach. While the United States is not subject to halacha, nevertheless it is instructive to examine what Jewish law has to say on the subject.

To begin with, according to Maimonides (the Rambam), judges need to be both “wise” and “understanding,” must be “experts” in the law, but also must be well versed in other areas of knowledge, “so that they may be competent to deal with cases requiring such knowledge….” (See his Mishneh Torah, Judges, 2:1.)

Because the Torah demands that “in righteousness shall you judge your neighbor” (see Leviticus 19:15), a judge must act with “perfect impartiality to both litigants.” (See MT Judges, Chapter 21:1.)

“At all times,” the Rambam adds, “a judge should think of himself as if a sword were suspended over his head…. A judge who does not render an absolutely true judgment causes the divine presence to depart from Israel.” (See MT Judges 23:8-9.)

That raises the question of what halacha considers “an absolutely true judgment.” In the Rambam’s view, it means a judgment that does not favor any extreme — not of the left or the right. He explains it this way:

All Jews, and judges especially, “are commanded to walk in these intermediate paths — and they are good and straight paths — as [Deuteronomy 28:9] states: ‘and you shall walk in His ways….’ Just as He is called ‘gracious,’ you shall be gracious; just as He is called ‘merciful,’ you shall be merciful; just as He is called ‘holy,’ you shall be holy. In a similar manner, the prophets called God by other titles: ‘slow to anger,’ ‘abundant in kindness,’ ‘righteous,’ ‘just,’ ‘perfect,’ ‘Almighty,’ ‘powerful,’ and the like. [They did so] to inform us that these are good and just paths. A person is obligated to accustom himself to these paths and to resemble Him to the extent of his ability….

“Since the Creator is called by these terms and they make up the middle path that we are obligated to follow, this path is called ‘the path of God.”

The Rambam here echoed the Talmud’s take on the middle path:

“Rabbi Yehoshua ben Korchah says: it is a mitzvah to mediate a dispute, as it is stated: ‘execute the judgment of truth and peace in your gates’ [see Zechariah 8.16]. Is it not that in the place where there is strict judgment there is no true peace, and in a place where there is true peace, there is no strict judgment? Rather, which is the judgment that has peace within it? You must say: this is mediation, as both sides are satisfied with the result. And similarly, with regard to David, it says: ‘and David executed justice and charity to all his people’ [see 2 Samuel 8.15. And is it not that wherever there is strict justice, there is no charity, and wherever there is charity, there is no strict justice? Rather, which is the justice that has within it charity? You must say: this is mediation.” (See the Babylonian Talmud tractate Sanhedrin 6b.)

The Talmud, and the responsa literature that followed, takes in the Rambam’s view and significantly adds to the definition of “an absolutely true judgment.”

Before exploring that definition, let us return to Kavanaugh’s nomination to the Supreme Court, this time from the judge’s point of view. In his statement introducing himself to the nation, Kavanaugh described his judicial philosophy as being “straightforward.” He said: “A judge must interpret statutes as written, and a judge must interpret the Constitution as written, informed by history and tradition and precedent.”

This statement would disqualify him as a judge under Jewish law. That is because judges in Judaism must be willing to go “lifnim mi-shurat ha-din,” which literally means “inside the line of justice,” but actually means going beyond the letter of the law in order to do that which is right and just.

Thus, we are taught, “Rabbi Yochanan says: ‘Jerusalem was destroyed only for the fact that they [strictly] adjudicated cases on the basis of Torah law…and did not go lifnim mi-shurat ha-din.” (See BT Bava Metzia 30b.) A similar reason was given for why Sodom was destroyed.

Noting that the law requires a judge to issue “a true judgment to its very truth” (din emet la-amito), the 16th century halachist Rabbi Joel Sirkis (the Bach) offered this explanation:

“[One] should judge in accordance with the particular place and time, so that the judgment is in full conformity with the truth, rather than always inflexibly apply the law precisely as it is set forth in the Torah. Sometimes, a judge’s decision must go lifnim mi-shurat ha-din, and reflect what is called for by the particular time and circumstances. When the judge does not do this, then even if his judgment is correct, it is not ‘a true judgment to its very truth.’

“This is the meaning of the statement of the Sages: ‘Jerusalem was destroyed only for the fact that they [strictly] adjudicated cases on the basis of Torah law…and did not go lifnim mi-shurat ha-din.” (Drishah to Tur, Choshen Mishpat 1:2; quoted in Menachem Elon’s Jewish Law, vol. 1, page 159.)

Summarizing Sirkis, Menachem Elon writes (ibid.) “that sometimes a judge is obligated to decide lifnim mi-shurat ha-din, in accordance with the felt necessities of the time and the exigencies of the case; if he does not do so, his decision may be ‘true,’ but it does not reflect the essential truth of the law. When, in a particular case, a judge decides contrary to his view of what strict law requires, he is not deviating from the law but declaring it truly: he does not change left into right, but his decision is ‘right.’”

In other words, to rework Kavanaugh’s statement to fit halacha, “A judge must not always interpret statutes as written, and a judge must not always interpret the Constitution as written.” To believe otherwise disqualifies the candidate — whether conservative or liberal.