Photo Credit: Rabbi YY Rubinstein
Rabbi YY Rubinstein

Fortunately, I’ve never had the chance to admire them up close, but English judges in their scarlet robes and wigs do look rather splendid. The black robes worn by American judges are all right, of course, but they don’t look quite as striking or theatrical as those from the “old country.”

The statue outside many courthouses is of Lady Justice, a blindfolded woman. She carries a sword in one hand and scales in the other. The statue portrays a woman because the Greek and Roman deities of justice, Themis and Justitia, were women. The scales allude to the court as a place where evidence is weighed. The sword, as a friend who is a judge once told me, is there because she’s likely some guy’s mother-in-law.

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The blindfold is also symbolic. It is meant to imply that justice will not see a person’s race, gender, wealth, power, or any other factor that could influence or sway a verdict from the truth.

At the beginning of March, the Trump administration, to quote The New York Times, “moved to sweep away most of the remaining vestiges of Obama administration prosecutors at the Justice Department, ordering 46 holdover United States attorneys to tender their resignations immediately.”

The Times then added, “The firings were a surprise.”

This was, of course, complete nonsense.

Back on March 23, 1993, the Times reported, “Attorney General Janet Reno today demanded the prompt resignation of all United States Attorneys.”

Janet Reno was Bill Clinton’s attorney general, and both Reno and Clinton were more than happy to “sweep away” justices appointed by Clinton’s predecessor, the Republican George H.W. Bush.

“Business as usual” can hardly be described as a complete surprise. Politically based appointments to courts are the norm in the United States.

Take the pivotal appointment to the Supreme Court of Neil Gorsuch. The Times made the political nature of the U.S. legal system quite clear:

“President Trump on Tuesday nominated Judge Neil M. Gorsuch to the Supreme Court, elevating a conservative in the mold of Justice Antonin Scalia to succeed the late jurist and touching off a brutal, partisan showdown at the start of his presidency over the ideological bent of the nation’s highest court.”

It is the phrase “the ideological bent” that gives the game away. There is very little blindfolding of American judges. They are expected to have and even display a bias according to political party. Americans suspect that they will often peek from under the blindfold. That’s why each party supports, nominates, and appoints them in the first place.

From a British point of view that is truly shocking. From a halachic one it is horrific.

English judges are appointed through rigorous and lengthy scrutiny, based on their legal ability and sense of judgment in the application of the law. Political and party affiliation plays no part in the process whatsoever.

I have several friends, men and women, who are English judges. I have not a clue as to whom they vote for in political elections and I doubt many outside their immediate families do either. Nor do I care. I do care whether they will not see a person’s race, gender, wealth, power, or any other factor that could influence or sway a verdict from the truth.

They start out as barristers or lawyers and have to work a minimum of ten years before they are even eligible to apply to become a part-time judge – a “recorder.” Applicants face intense scrutiny from an independent panel, the Judicial Appointments Commission, which will carefully examine a person’s abilities and past legal performance. Applicants will also be intensely vetted for any criminal or financial irregularities that make them unfit.

After several years, recorders may apply to become full-time judges, at which point they will face an even stricter repeat of the earlier process. If they succeed and become judges and move from lower to higher courts, once more the selection process will repeat and intensify. Ultimately, if they reach the English Supreme Court, the judges will have proven themselves over and over as the most brilliant legal minds, truly blindfolded and able to weigh evidence without bias or prejudice.

The Torah is even more rigorous in demanding total impartiality of its judges, or dayanim.

The Talmud tells the story of Rabbi Yishmael ben R’Yossi. He had a tenant farmer who worked his orchard. The arrangement between the two was that a portion of the orchard’s fruit went to the owner and the rest to the farmer.

As part of the agreement, the farmer used to bring some of Rabbi Yishmael’s fruit for his Shabbos table every Friday.

On one occasion, the farmer was on his way to town one Thursday where a court case he was involved in was to be heard. As he was passing the home of Rabbi Yishmael, he decided to drop the fruit off a day early.

Rabbi Yishmael was one of the judges scheduled to hear the case. When he saw the farmer at his door holding the basket of fruit, he refused to take it. He also disqualified himself from hearing the case.

Later that day, Rabbi Yishmael was passing the courthouse and heard the case being tried. He stopped to listen at the window. As the three dayanim questioned the two people in the dispute, he found himself inclined to favor his tenant farmer’s version of events. The more he listened the more he became convinced the man was telling the truth and the other was not. He thought of various questions he would have asked that would have demonstrated unequivocally the farmer’s claims.

Then he paused and engaged in some profound self-analysis. He asked himself why it was that he found the tenant farmer’s testimony so appealing. He traced his opinion to the benefit he derived from the farmers bringing his fruit a day early.

He declared, I didn’t accept the fruit, and if I had, it was, after all, my own fruit and yet it still influenced my decision-making process. Therefore those who actually accept a bribe or benefit are, as the Torah says, utterly incapable of judging clearly or truthfully.

The Talmud asks what amount constitutes a bribe or benefit that would destroy the possibility of objectivity and seeing the truth. The answer is: any amount.

Of course, in any system of law there will be judges who rigorously uphold the letter and spirit of the law and in so doing enhance its reputation. There will be others who do the opposite and rob people of respect and trust in the legal system upon which their society is built and depends. However, as long as the system itself is healthy it can survive a few rotten apples who ignore or abuse its values.

The system of American justice has to be blind to race, gender, wealth, power –and, I believe, politics. Judges and justices need to be appointed based on their devotion to the law and nothing else. Unless changes are made, Lady Justice is in real danger of losing the trust of the American people. Many believe she already has.

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