HERE COME DA JUDGE
Rabbi David Walk
That irreverent reference in my title comes from a famous routine on Rowan & Martin's Laugh-In from the late 60's, but it originated in a song and skit by Afro-American entertainer Dewey 'Pigmeat' Markham. The whole point of the phrase and the skit was to poke fun at the solemnity of courtrooms and pompous judges, and the song was more popular in the UK than it was in the US. I guess there's more pomposity to make fun of over there. In any case a healthy respect for the judicial branch of government (with a periodic joke thrown in) is critically important for the smooth running of successful societies. Here in the States, the Trump administration is sending mixed messages. On one hand, we have official voices of the executive branch claiming that the authority of the President, in certain areas, 'cannot be questioned' by the court; on the other hand, the administration is pushing for the speedy consideration of Neil Gorsuch as the newest member of the Supreme Court, while ignoring that he finds the president's comments on judges 'demoralizing'. This brings up the question of what do we want from our courts? How should courts function and who should be the judges making these decisions?
This question comes up, of course, in this week's Torah reading. Our text begins with this statement: And these are the ordinances that you shall set before them (Exodus 21:1). Our whole discussion is based on the Hebrew word lifneihem, which we translated as 'before them'. So, who is this 'them'? Rashi suggests (based on the Midrash Tanchuma) that this excludes non-Jews. However, the Talmud explains that reference to mean, 'and not before hedyotot (commoners or non-expert judges, Gitin 88b).' The Kli Yakar (Reb Shlomo Ephraim ben Aaron Luntschitz, 1550-1619) uses this verse and comment as an opportunity to explain what we should be looking for in judges.
This exposition begins with the previous verse. The final verse from last week's Torah reading teaches that there can be no steps leading up to an altar for offerings to God; it must be a ramp. Our parsha begins with the letter vav (meaning 'and'), which we understand to mean that this new material is connected to the previous issue. The Kli Yakar, using that connectedness, quotes from the Talmud: Bar Kapara asked, what is the source for the Mishnah (Pirkei Avot 1:2) 'be deliberate in judgment'? He answered, because it says 'Don't go up on steps to an altar', followed by 'and these are the laws'. Reb Elazar asks, what is the source that even judges should not walk above where people are seated, appearing to walk above the heads of Yisrael? He answers with the same quote as Bar Kapra (Sanhedrin 7b). The Kli Yakar explains that together these rabbis are teaching that any judge who doesn't judge carefully and deliberately is vain and arrogant. That statement about 'deliberate judgment' is followed by two other instructions by the Men of the Great Assembly: establish many students and make a fence to guard Torah law.
Later, the Kli Yakar quotes from another statement in Pirkei Avot: One who is vain when handing down rulings is a fool, wicked and arrogant (4:7). From this idea, the Kli Yakar concludes that three dangers can develop from judging haughtily: the judgment will be silly, one will wickedly compare themselves to God and judge alone, and the judge will become set in their arrogance. All of these issues can be overcome by heeding the injunction to judge deliberately. Then the person will follow the other two statements in the Mishneh (create many students and guard Torah). With many students one will never judge alone, and, with arrogance in check, proper concern will be afforded to protecting the Torah and its laws.
The Kli Yakar points out that these important ideas about judicial responsibility had already been taught in Psalm 75, many centuries before Pirkei Avot were written, with a major additional concept. This great poem proclaims: When the earth and all its inhabitants were melting away, I established its pillars forever (75:4). The legal system composes the pillars which insure the continued survival of our society. Judges must resist the lures of perverting justice to their whims and ego (verse 5). We require judges who humbly emulate God's justice (verse 8). Only then can evil (horns of the wicked, verse 11) be vanquished (cut off), and justice (horns of the righteous, ibid.) prevail (be upraised). This beautiful poem also explains why in our parsha the term Elohim can refer to either judges or God.
This long and complex comment from the Kli Yakar explains that judges are, indeed, doing God's work here on earth. Their sincere efforts at establishing a just society are blessed by God to keep our society afloat in the tempests of an often cruel world. That's why the court system is juxtaposed to the altar and the Temple, because together, justice and divine worship are two of the pillars which support the continued existence of our world. To complete the triad of fundamental supports for our realm, comes, of course, the Torah itself, and its study. And that's the structure of this section of the book of Exodus. First, we have the Ten Commandments, immediately followed by the rules of the altar, and, then we begin this week's parsha with instructions about a just legal system, based on judges who are deliberate, work well with others, and fervently endeavor to protect the basis of the system.
I'd like to think that these same qualities, which we seek in adjudicators of Torah law, should be effective in secular tribunals. I hope that the Senate of the United States is evaluating Judge Gorsuch along these lines. Notice, we don't analyze their opinions, just how they reached them. We should want the American Supreme Court bench to be filled with scholars who are interested in sound law, not sound bytes or politics. I pray America succeeds in finding such individuals.