Torah reading: Deuteronomy 16:18 to 21:10
Haftarah: Isaiah 51:12 to 52:12
Today in America 100 years of social progress is under assault. Much of the charge is being led by ideological zealots in black robes. Long overruled court decisions may soon be resurrected; long discredited doctrines are being openly extolled. Right wing "jurists" are looking with favor on bringing back long discredited U.S. Supreme Court decisions such as United States v. E.C. Knight Co. (1895), which held that the federal government had no power to regulate manufacturing, and that the Commerce Clause of the Constitution limited regulation to goods actually within the "stream of commerce;" Lochner v. New York (1905), holding that the 14th Amendment provision stating that states may not deprive people of property without due process of law prohibited states from legislating the maximum number of hours per day workers could work - this law violated the employer's freedom of contract; Adkins v. D.C. Children's Hospital (1923), voiding similar federal legislation based on the due process clause of the Fifth Amendment, and Morehead v. New York (1936) striking down New York's minimum wage law for women and minors, again on 14th Amendment grounds. This judicial philosophy, enshrining laissez faire and the enrichment of the already rich into the United States Constitution, was repudiated in SCOTUS decisions such as West Coast Hotel v. Parrish (1937), reversing Morehead and upholding a similar minimum wage law in Washington state, United States v. Carolene Products Co. (1938) upholding a federal law prohibiting dairies from adulterating milk with oil or fat, with its famous footnote 4 in which the SCOTUS majority announced that henceforth they would pay more attention to the rights of individuals rather than any imaginative right of business to be free of regulation, and Wickard v. Filburn (1942), holding that the Commerce Clause of the Constitution allowed Congress to regulate businesses who did not ship products out of state - as their activities had an indirect effect on interstate commerce. A whole body of law developed since 1937 may now be displaced by ideological zealots whose ideology has determined the result before they even hear the case.
No black robe zealot symbolizes the arrogance and extremism of the right than Clarence Thomas, a man who has become increasingly ethically challenged. Thomas has attended Koch brothers fundraisers and conferences at Koch brothers expense, and his wife has been a Tea Party activist promoting the repeal of Health Care Reform. Any bets Thomas will recluse himself when the ACA comes before SCOTUS?
Now, some of you may be wondering, what does all this have to do with this week's Torah reading? The name of this week's parshah "Shoftim" - means "judges." The parsha begins:
You shall appoint for yourself judges and officers in all your towns which the LORD your God is giving you, according to your tribes, and they shall judge the people with righteous judgment. You shall not distort justice; you shall not be partial, and you shall not take a bribe, for a bribe blinds the eyes of the wise and perverts the words of the righteous. Justice, and only justice, you shall pursue, that you may live and possess the land which the LORD your God is giving you.
Deuteronomy 16: 18-20
The rabbis who compiled the Talmud 1,500 to 2,000 years ago would not have understood the concept of separation of church and state. One of the Six Orders of the Mishnah is entitled Nezikin, Damages, which includes four tractates, Baba Kama, Baba Metzia, and Baba Bara (First, Middle and Last Gates) and Sanhedrin, totaling 1,054 folio pages (out of a total of almost 6,000 folio pages) of civil and criminal law and procedure before the rabbinical courts. While expounding on civil and criminal law and procedure, the rabbis also discussed their concept of judicial ethics. Thus, we read in the Talmud, Ketubat 105b:
Raba stated: What is the reason for the prohibition against a judge taking a gift? Because as soon as a man receives a gift from another he becomes so well disposed towards him that he becomes like his own person, and no man sees himself in the wrong.
R. Papa said: A man should not act as judge either for one whom he loves or for one whom he hates; for no man can see the guilt of one whom he loves or the merit of one whom he hates.
Raba remarked: At first I thought that all the people of Mahuza loved me. When I was appointed judge I thought that some would hate me and others would love me. Having observed, however, that the man who loses today wins [another suit] tomorrow I came to the conclusion that if I am loved they all love me and if I am hated they must all hate me.
Our Rabbis taught: "And you shall take no gift" [Deut. 16:19]. There was no need to speak of [the prohibition of] a gift of money, but [this was meant:] Even a bribe of words is also forbidden, for Scripture does not write, And you shalt take no gain. What is to be understood by 'a bribe of words'? — As the bribe offered to Samuel. He (Samuel) was once crossing [a river] on a board when a man came up and offered him his hand. 'What', [Samuel] asked him, 'is your business here?' — 'I have a lawsuit', the other replied. 'l', came the reply, 'am disqualified from being the judge in the suit'.
Amemar was once engaged in the trial of an action, when a bird flew down upon his head and a man approached and removed it. 'What is your business here?' [Amemar] asked him. 'I have a lawsuit', the other replied. 'I', came the reply, 'am disqualified from acting as your judge'.
Mar 'Ukba once ejected some saliva and a man approached and covered it. 'What is your business here?' [Mar 'Ukba] asked him. 'l have a lawsuit', the man replied. 'I', came the reply, 'am disqualified from acting as your judge'.
And at Shavuot 31a, the Talmud states that when two people come to court, both must be dressed the same. If one is rich and the other one poor, both must be dressed as if both were wealthy, or both were poor. Otherwise, the judgment will be perverted.
Many of these rightist judges, including Clarence Thomas, claim to be good Christians. Yet when they allow their devotion to their ideology, or to their corporate and wealthy backers, to influence or even to decide the case before them, are they really qualified to be judges? What would the rabbis say about such judges? What would Moshe Rabbenu (Moses our teach or Moses our rabbi) say about such judges?
Shabbat Shalom