With tears and gratitude, Judge Sonia Sotomayor was sworn in as the 111th United States Supreme Court justice — the third woman and the first Latino to make it to our high court.
Sotomayor’s confirmation hearings brought to the forefront of American public discourse some fundamental questions about what law is and what the proper functions and duties of courts and judges are. Is law an objective corpus of rules that can be accessed through formalistic procedures? Are judges merely scholars who interpret and apply law according to some objective standard? Or is law a more subjective system of rules, principles and lived experience, in which judges are both interpreters of the law and witnesses to experiences of injustice?
Our newest Supreme Court justice may help pave the path for shattering this dichotomy in American constitutionalism. As Sotomayor famously stated in 2001: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” While maybe Sotomayor didn’t choose her words as carefully as she should have, her remarks did highlight a larger truth, namely that personal background is far from irrelevant to the legal process.
The notion that personal experience and background should inform our jurisprudence — indeed helps lead to a more ethical jurisprudence — is perhaps nowhere better articulated than in Deuteronomy’s injunction: “You shall not pervert the justice due an alien or an orphan, nor take a widow’s garment in pledge. But you shall remember that you were a slave in Egypt, and that the Lord your God redeemed you from there.” The Bible here sees the lived experience of the Jewish people as the best guarantor of justice.
It is ironic, then, that the Jewish community is often reluctant to bring its own wisdom and heritage to bear upon the pressing issues of the day. But this was not always or everywhere the case.
A hero in this context is the late Rabbi Samuel Korff, a today little-known Orthodox leader who headed Boston’s beit din in the 1960s and 1970s. Under Korff’s stewardship, Boston’s rabbinic court left a mark on the city’s larger, non-Orthodox community, with Jews of all stripes — and even some gentiles — turning to the local beit din for arbitration.
Drawing upon Jewish legal and ethical principles, Korff addressed the crisis of oppressive worker practices head-on. He invoked the biblical prohibition against oshek (worker exploitation) to prohibit the consumption of grapes — normally perfectly kosher — due to mistreatment of non-unionized farm workers in California. Korff challenged Boston’s Jewish slumlords through courageous legal decisions based on Jewish law. His court also wrote a 56-page legal responsum to issues of conscientious objection in the Vietnam War.
Part of what makes Korff so impressive — and so ahead of his time — is that he understood that Jewish law and ethics could be forces for good both in public affairs and in internal Jewish discourse. He rejected the prevalent idea that a beit din should confine its rulings exclusively to Jewish ritual and family matters; he believed that Jewish law must address broader social injustices. Explaining a rabbinic court’s ability to provide nonsectarian solutions to an array of problems, Korff told The New York Times, “justice must transcend a given creed, race or religion.”
The responsibility of a judge, in secular and religious cultures, is to ensure that the interpretation of the law account for its real-world consequences in people’s lives. Korff’s beit din courageously addressed public issues with halachic interpretations, recognizing the importance of bringing the best of one’s personal and communal background — the parts that engender the most empathy — into public discourse for the sake of achieving justice for all.
Shmuly Yanklowitz is the founder of Uri L’Tzedek, a rabbinical student at Yeshivat Chovevei Torah and a doctoral student at Columbia University in moral psychology.
The Forward welcomes reader comments in order to promote thoughtful discussion on issues of importance to the Jewish community. In the interest of maintaining a civil forum, the Forward requires that all commenters be appropriately respectful toward our writers, other commenters and the subjects of the articles. Vigorous debate and reasoned critique are welcome; name-calling and personal invective are not. While we generally do not seek to edit or actively moderate comments, the Forward reserves the right to remove comments for any reason.
Copyright © 2013, Forward Association, Inc. All Rights Reserved.
Reconsider Decision on Rabbis and Intermarriage
Is Steven Hawking’s Decision To Boycott Israel a Boon to BDS?
Alas, Poor GOP: 3 D.C. Scandals That Weren't
Forced Out by Nazis, Grandmother Returns With Family to German Hometown 
Mother of Jewish Teen Killed on Brooklyn Bridge Speaks Out
You've successfully signed up!
I've recently been learning Rabbi Marc Angel's popularizations of the philosophy of Rabbi Benzion Uziel and Rabbi Haim David Halevi. Rabbi Angel approvingly cites Justice Benjamin Cardozo, and Rabbi Emanuel Rackman similarly cites Cardozo. According to them: halakhah and/or law is not a dispassionate formal process. Human needs and concerns, and the subjective concerns (conscious and subconscious) of the judge all play a role. If Reform and Conservative have erred in eliminating the Divine from halakhah, says Rabbi Rackman, then Orthodoxy has erred in eliminating the human. (Rabbi Rackman notes that this is variable; Seder Kodashim bears fewer imprints of human need than Seder Nezikin.) I'd add that Rabbi Dr. Eliezer Berkovits, who follows Rabbi Moshe Shmuel Glasner, has also greatly influenced me.
The story of Rabbi Samuel Korff was deeply inspiring. It is tragic that we don't have authorities like this today, who can look beyond their own parochial concerns and constituencies and present Judaism as it was meant to be. As Rabbi Benzion Uziel says, Judaism is not a cult, but a world religion with a message for all of humanity.
Shmuly Yanklowitz's article does a wonderful job of capturing my father's efforts and beliefs. Thank you.
On the other side of the coin, we have the jewish prosecutor of San diego County (Bonnie Dumanis) who puts anyone who opposes zionist or neocons on trial on trumped up charges. She makes up her own rules and law as she goes. Whatever works against the evil gentile rabble is OK because, after-all, once upon a time their was a holocaust.
I was hoping that a rabbinic and PhD student would have a better understanding of the United States Constitution. Through te principle of the Seperation of Powers our legislative and Judicial systems do protect the poor and powerless. Shmuly don't you know that it is up to the voters and the legislators they elect to feel empathy towards the indigent. To use the Bible to prove your left leaning political tendencies is at best anacronistic and at worst misleading. Did Moses read Locke or Rousseau? Did he have conversations with madison on the concepts of 'Divine Right' vs. Republicanism? Perhaps Moses was a Federalist and Aaron a Jeffersonian. I'm really appalled by this misguided and Myopic view of 'Justice'. Is not justice a double edged sword? Whats just for one person may be horrible for another. Is not the imprisonment of the convicted hailed by the victim and and feared by the family of the imprisoned? How then can Mr. Yanklowitz claim that a judge must "recogniz[e] the importance of bringing the best of one’s personal and communal background" in his or her judicial decisions? Whats best and 'empathic' for one party may be just the opposite for another. Surely the Torah's empathy, and the sympathy of Hakadosh Baruch Hu is not limited to one party in a legal battle. Shmuly Yanklowitz makes a valid political point. There is room within our discourse for his opinions. However he should cease masquerading his political sympathies as universal Jewish ethical principles.
If Sonya Sotomayor is a "wise Latina," does that make Ruth Bader Ginsburg a "wise Jewess" and Sandra Day O'Connor a "wise goya"?
Yes, klineius, in fact it does, literally, but your word choice doesn't work and dosen't convey the tone conveyed by "wise Latina," which is understood by reasonable and reflective people.
"While maybe Sotomayor didn’t choose her words as carefully as she should have, her remarks did highlight a larger truth,"
Yanklowitz gives himself enough wiggle room to heap more praise on an Obama selection. Is he correct in his interpretation? Why does he need this room?
Does Sotomayer's statement fit perfectly with Devarim? In a certain, limited worldview, every pasuk of the Torah is in harmony with modern liberalism.
However, a person must start with "didn't choose her words as carefully" to allow for the space to create that harmony.
In fact, given that Sotomayer is a very, intelligent woman who does choose her words carefully about "wise Latina" as stated in the editorial, and many other times, let me suggest something else.
The judge believes that her culture and her gender given her inherent superiority over a white male. She doesn't rest on her own merits, intelligence, or analytical skills. What pushes her over the top is the accident of her birth. Through no control of her own, she was born a woman of Hispanic culture/background. Is that what the US is based on? Is it your own merit, or the accident of your collective? I believe its the former, Sotomayer the latter.
Did Moses reach great heights because he was male, and a mix of Jew and Egyptian? Obviously no. I respect but disagree with Yanklowitz's view on judges and background. However, I feel he is simply wrong to smoothly associate pasukim in the Torah with that worldview.