Thursday, March 6, 2008
Are These Proper Criteria From Choosing Justices?
Though this sounds, at the beginning, like a political post, it's not. I was upset recently by what I read about what the Democratic front-runner for the Nomination, Barack Obama, has said about what criteria he would use in appointing supreme court justices, were he to become president.
Here's one comment, among several, that he made about his criteria: "We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."
This seems to imply that a supreme court justice (who is charged with deciding the law on a given matter, and not issues of fact), should not judge based only on the law, but should have a broader role, that of affecting social change for the victims and the helpless of the world. Now that sounds very beautiful, but this former constitutional law professor is forgetting that there is a separation of powers in this country! Judges, at least in the supreme court, are judging issues of law. They are merely there to decide the meaning of statutes and the Constitution, not as agents of societal change.
The Torah speaks about this when it commands judges, in Vayikra 19:15, "--לֹא-תִשָּׂא פְנֵי-דָל, וְלֹא תֶהְדַּר פְּנֵי גָדוֹל: בְּצֶדֶק, תִּשְׁפֹּט עֲמִיתֶךָ," "Do not favor the the poor man, nor should you honor the rich man. With truth shall you judge your people." The Sifra on Vayikra 4:2, Parshas Kedoshim, clarifies, "שלא תאמר עני הוא זה, הואיל ואני והעשיר הזה חייבים לפרנסו - אזכנו ונמצא מתפרנס בנקיות; לכך נאמר: 'לא תשא פני דל." "Lest [the judge] say, 'Since this man is poor. And this rich man [the other litigant] is obligated to support the poor, I will cause him [the poor man] to win, and he will be supported honorably.' Therefore, the Torah says 'Do not favor the poor.'"
Being a judge is not easy. Sometimes the law simply does not come out on the side of the party who you or I would like to see win, because of their unfortunate situation. But the Torah says that the solution is not to pervert justice to get the desired outcome. Similarly, l'havdil, in secular law, we would be in a very bad place if judges and justices did as Barack Obama here seems to imply they should do, i.e. let their sympathies determine the outcomes of their judgments, rather than the law.
Hashem gave us the mitzva of tzedaka to give us merit by doing this mitzva. There is no need to obviate the need for this zechus/merit by perverting justice to support the poor and the oppressed through the judicial system. There are many things outside of the judicial sphere that we can and should do to help those that need it.
(Picture courtesy of student.bricanica.com)
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