Appointing Judges

By Rabbi Jay Kelman

The role of the judiciary in North America has been at the forefront of the news in recent days. In Canada Judge Gomery has just released his report apportioning blame in the sponsorship scandal. In the United States George Bush is having difficulty getting his nominees for the Supreme court ratified. How much of the negativity being voiced is based on true moral outrage and how much on political expediency only G-d (and perhaps the complainers themselves) truly knows.

The difficulty of finding qualified judges is a problem dating back to biblical times. Moshe Rabbeinu himself initially decided all cases by himself. His father in law critiqued Moshe pointing out that even the greatest of all men needs to appoint a qualified team to assist him. “What you are doing is not good” Yitro scolded his son in law. “Seek out from amongst the people, capable, G-d fearing – men of truth, hating unjust gain”. Unfortunately this task proved impossible and Moshe could only find “capable men”.

Despite the inherent difficulties in finding truly G-d fearing men who hate unjust gain, Jewish law has nonetheless demanded that our standards be kept to the highest degree possible. The Rambam codifies a series of requirements for those appointed to the Sanhedrin – whose members could judge capital cases. They must be exceptional in their knowledge of Torah, equipped with great analytical prowess. They must be familiar with other areas of human knowledge such as “medicine, mathematics, astronomy, all forms of witchcraft and sorcery ( a common issue in ancient times) and idolatrous practices”. Judges must understand the cultural and intellectual milieu in which they function. Those firmly ensconced in an ivory tower need not apply.

Even more important than intellectual achievement is moral character. Thus the Rambam rules that even in civil courts of three-–the courts that actually function today–the judges must be “humble, hate money (i.e earned inappropriately), love truth, love people, and own a good reputation”. The Rambam even rules that those who do not have children may not be a member of a sanhedrin. While such a rule may be deemed unconstitutional in the western world, it reflects Judaism’s honest appraisal of the human condition as a childless judge is apt to lack the requisite compassion a judge must posses. (It is for this reason that insurance premiums are lower for married couples with children-–one drives differently with kids in the back). Jewish law even seems to accept the notion of mandatory retirement of judges – though at what age is unclear. It is thus quite clear that Jewish law disaproves of general elections for judges and would surely look askance at politicians making such crucial appointments. Unlike communal leaders who must be acceptable to the masses judges must have a degree of aloofness from political realties. Even in the rare circumstances where political appointments are made on merit alone there is always a lingering perception that it is not so. What is needed is an arms length body of highly respected people of upstanding integrity to make such crucial decisions.

Even the new make up of the court as a whole must be taken into account. While in North America this may translate into a woman’s or ethnic seat; in Jewish courts this translates into recognizing human frailties. Judges who do not get along personally should not sit on the bench together as they are wont to focus their arguments on contradicting their colleagues rather than seeking true justice. We as a society must be up to the task of “appoint yourselves judges and police in all your communities and make sure they administer honest judgement for the people.”

This article originally appeared in the Money Matters column of the Canadian Jewish News in November 2005.

Rabbi Jay Kelman is a founding director of Torah in Motion, an educational institute dedicated to inspire Jews to engage with the challenges and opportunities of the modern world through the prism of Jewish law, values and traditions. Rabbi Jay teaches ethics and Rabbinics at the Community Hebrew Academy of Toronto. Rabbi Kelman served for nine years as Rabbi at Beth Jacob V’Anshei Drildz and was a practicing accountant, earning both his Chartered Accountancy (Canada) and CPA (USA) designations; working in the International tax Department of a large international firm.