A Midrash on Judge Sotomayor

D’varim
Deuteronomy 1:1 - 3:22

Précis: This week, we begin reading the Book of Deuteronomy (d’varim). It takes the form of a series of lectures by Moses to the People as they prepare to enter the Land. Together, these instructions constitute Moses’ farewell address. D’varim is sometimes called the “Mishneh Torah”, literally, the “second teaching of the Torah” (this is where we get the Greek name of the Book) because (at least on the surface) it contains many repetitions of previously enunciated laws. The Book has a strong focus on the centrality of the Temple in the Promised Land, as well as many of other ritual activities which became the center of Jewish life: recitation of the Sh’ma, birkat ha’mazon, Shabbat observance, wearing tallit and t’fillin, reciting kiddush on Shabbat, and placing mezuzot on doorposts.




The Book is also referred to as the “Priestly Code” by those analysts who ascribe its origin to the Priests of the First Temple era. However, in addition to descriptions of sacrifices and Temple routine, D’varim has two other significant themes: the cosmic relationship between God and the People Israel, and the pursuit of social justice in terms of care for the “poor, the widow, and the orphan.”


The metaphor of the journey on display in this Book is an ancient one. Classical narratives (for example, The Iliad, The Odyssey) use the heroic struggles of an individual, facing grave dangers and travails, to examine the development of a human being. The central figure is usually alone, frequently tested by the gods, and, if he (almost always a “he”!) ultimately succeeds, he becomes a role model for what a person might hope to accomplish. These ancient sagas, found in cultures throughout the world, suggest that the greater the struggle, the more impressive the triumph.


What we have in this Book is a “foundation account” – a story that sets out the archetype that future generations are expected to live with and understand. In our “saga”, instead of the external challenges examined in other ancient stories, our account focuses on the dangers of lacking faith, of lacking trust in God, and of being willing to quit the struggle. The premise of the Book - that God will, in the end, redeem the People and bring them (or restore them) to the Promised Land – is as important to us today as it was to the ancients. And for modern readers, understanding what has come before us – what our own history is, and what kind of culture has developed from those historical imperatives - is a key to understanding the environment in which we work, and live.



On yet another level, we can look at this as a kind of archetype homecoming saga. Like the Odyssey, or the Gilgamesh saga, or the Wizard of Oz, much of this Book is about “getting home.” What distinguishes this Book, however, are the detailed instructions about how to create a civil society once we do get home: how we are to relate to each other (especially the most vulnerable in our society) how we are to relate to God, and how we are to relate to the Land.


The first parasha recounts the four decades of travel through the wilderness, repeats the story of the spies, deals with the appointment of judges, victories in the wilderness against enemies, and how the conquered land is to be divided. This parasha is read every year on Shabbat Hazon, the Shabbat prior to the fast of Tisha B’Av. Since looking at history is a major theme of the parasha, it is certainly an appropriate reading prior to this holiday.



Deut. 1:17 – “You shall not be partial in judgment: hear out low and high alike; fear no man, for judgment is God’s.”


In recent weeks, many of us have been paying close attention to the confirmation hearings of Judge Sonia Sotomayor to the United States Supreme Court. Issues of the role of the Court viz a viz Congress, basic constitutional issues, so-called “judicial activism” and how judges should find justice were talked about at length, through the lens of political posturing that is part of the American system. (I know it’s bad, but as has been said in another context, it’s better than all of the rest.)


The verse we read in this week’s parasha cited above tells us the Jewish principle of judging: hear out both sides, regardless of status. It doesn’t take a brilliant judge to decide a dispute between two parties who are essentially equal in status, wealth or claim of right. Special skills are needed, however, in the real world, where few disputes are of such a kind. A truly just society makes sure that equality is observed in its judicial functioning.


The Rabbis of the Midrash, writing in the first centuries of the Common Era, address the conflict between “equal justice” and the fact that there will always be societal members who are various points along the scale of honor, status, and wealth. In Sifrei D’varim 17, they note:

Lest one say: “How can I damage the honor of this rich person for a mere dinar? I will rule in his favor and then when he goes outside I will say to him, ‘Give the poor man the dinar because you really owe him.’” Scripture therefore teaches, “Hear out low and high alike.”




The passage suggests that a judge has been faced with a dispute between a rich man and a poor man, and has determined that the poor man is, in fact, entitled to recover a “dinar” in damages (a very trivial sum). The judge knows, however, that entering a finding against the rich man could damage his honor (“kavod”) even though it would be the right thing to do. So the judge considers a “work-around.” Maybe he can protect the rich man’s reputation and make sure that the poor man gets his due compensation “off the record!” The rabbis reject this concept. The verse they site requires them to treat all parties to the dispute alike, regardless of background or status.


The rabbis are not ignoring the “kavod” of the rich man: they are, in fact, assuring the “kavod” (dignity, or reputation) of the poor man by requiring the judge to abide by the Biblical command. Achieving the correct result is a necessary but insufficient definition of justice; without maintaining the dignity of all parties, regardless of status or wealth, the Jewish ideal of justice cannot be achieved.




I would suggest that this standard is indeed an appropriate one for those in the United States Senate to consider as they go about their constitutional duties of advice and consent to the President’s nomination to the Supreme Court. Hopefully a "wise Latina" understands the need to maintain the dignity of all who are affected by her decisions.