Judge and jury
Supreme Court Justice Stephen Breyer is the kind of teacher you wish you had for all your classes. Lively, avuncular, engaging, he makes a lot of constitutional legal theory go down in witty and enlightening chunks (which is more pleasant than it sounds). He packed the Jewish Theological Seminary last week for a talk based on his latest book, Making Our Democracy Work: A Judge’s View.
The first half of the talk was his justification for the court’s role in American law-making. He spoke movingly of a few key moments when the court’s authority was challenged and even ignored, as when Andrew Jackson defied a court decision and drove the Cherokee nation out of Georgia. But Breyer finds the American story infinitely more inspiring than disheartening. Remembering how Ike sent the 101st Airborne into Little Rock, Breyer said, “I still get kind of a shiver.”
The second half of the lecture, on the Constitution as a “flexible, living document,” was red meat for the rabbis and scholars at JTS. Clearly Breyer’s book is meant as a challenge to Antonin Scalia and the “originalists” on the Court. He understands their impulse to keep decisions free of a judge’s subjective impulses. Breyer’s solution is not to ask what the Constitution’s authors would do in a particular case. Instead, he asks what values underlie the text, and applies these to new circumstances. Times may change, the law may change, but “you’re taking a value that doesn’t change.”
That, of course, is essentially the modus operandi of Conservative Judaism, whose official history is called Tradition and Change. I imagine, however, that there might have been some rabbinic firebrands in the room who are restless over the pace of change within their movement and impatient with Breyer’s somewhat deliberate approach to jurisprudence.
If there was something missing from the evening it was any acknowledgement of Breyer’s own Judaism and its impact on his legal thinking. Moderator Ariela Dubler of Columbia Law School didn’t bring this up in the short Q-and-A that followed the talk.
Not that I’m complaining. “Patriotism” has come to mean football-field size flags, Air Force flyovers, and country-western songs, but I never felt as patriotic as I did when I was listening to Breyer. In a small aside he mentioned that he had recently hosted a delegation of law students from Tunisia, explaining to them how America came to accept and enforce even the Court’s most unpopular decisions. (“You can turn on the television and see what’s happening in countries who decide their major problems in the streets and with guns,” he said.) Sometimes you need a reminder that for all the polarization and hard feeling in this country, there remains respect, however grudging, for its key institutions.
Ariel Kaminer, the Times’ Ethicist columnist, took a question Sunday about a synagogue’s search for a new rabbi. “Name Withheld” explained that the synagogue was interviewing four rabbis, including one who lives nearby and “comes every Saturday to pray and glad-hand.” The other candidates live too far away to do the same. “Isn’t it unethical of him to take advantage of his proximity?” the letter asked.
“Attending those services isn’t unethical; it’s sensible,” Kaminer responds. “If you applied for a job at a bookstore, would you refuse on principle to visit until they made their choice?”
Terrible answer, and I say that as someone who recently sat on his synagogue’s rabbinic search committee. We made sure to level the playing field among candidates, especially finalists. We introduced our candidates to the congregation in audition weekends designed to be as identical as possible, so that the candidates would have similar opportunities to make their impressions. Had one of the candidates begun showing up on other days, I hope we would have said, “So as not to unduly prejudice the outcome, we politely request that you refrain from visiting the synagogue during the search process.”
The difference between a bookstore job and a pulpit is that you rarely if ever put the bookstore job to a vote of the store’s staff or customers. A rabbinic search is often a hybrid of parliamentary and direct democracy. Because you can’t tell everything about a rabbi by the way she shmoozes during kiddush, congregations delegate much of the screening to a committee. Sometimes, because of confidentiality, the search committee is privy to things — a bad recommendation, an unreasonable compensation request, a tendency to drop f-bombs during the interview — that a congregation could not and should not know. Pity the committee that rejects inappropriate candidates who have managed to ingratiate themselves to congregants during frequent visits to shul.
Yet the congregation gets its say, even if it is only an up-and-down vote at the end of the process. One rabbi’s glad-handing could, like political activity within 50 feet of a polling station, distort the process.
No doubt a candidate could figure out a way to do some politicking on his or her own. Hell, it would be “sensible” for a candidate to sit in the front row during a rival’s audition sermon and challenge him to a debate (think how far that has gotten Newt). But most rabbis would agree that campaigning is bad form, if not disqualifying.