Author Archives: Rabbi

Anyone, Anytime

Posted on January 19, 2011 | 4 comments

We have reached an unprecedented nadir in American jurisprudence, where ostensibly law-abiding citizens are ensnared in the criminal justice system because they fall victim to aggressive prosecutors and vaguely- worded laws that do not clearly delineate the line between legal and illegal conduct.

Those are the findings of criminal defense attorney Harvey Silverglate in his recent book “Three Felonies a Day: How the Feds Target the Innocent.” It posits that the average person can unknowingly commit three felonies daily, and he is not prosecuted either because he has not been targeted or because the system could not handle such an overload. Many of the cases cited are from Silverglate’s own practice, and even conceding the often irrational exuberance that defense attorneys can muster on behalf of their clients’ innocence (having practiced criminal defense for many years myself, I am quite familiar with the prototypical lawyer who sees no wrongdoing in any of his clients, ever), he makes a very compelling case of prosecutorial overreach and outright injustice.

A few examples suffice. A Boston lawyer was prosecuted and convicted of obstruction of justice for advising his client not to testify before the Grand Jury (his constitutional right, of course), which in turn protected another client of his (both knew of the conflict and agreed). A pain-management physician was convicted of illegally prescribing more Oxycontin that the Feds determined that patient should have received; the patient was selling them, and the doctor “should have known” that his patient was disposing of the painkillers on the street. The FDA criminally prosecuted a manufacturer of a catheter used in heart surgery for failure to report product malfunctions – even when those malfunctions occurred through misuse of the device by the surgeon. Thus, a criminal jury was asked to decide whether a medical device was “safe and effective,” and convicted the manufacturer. The first two defendants served prison time; the latter case was reversed on appeal, but not in time to avoid ruining the manufacturer’s life and career.

In our legal system, Indictments are very easily obtained. A former Chief Judge of the New York Court of Appeals famously said that in New York, “the prosecutor could indict a ham sandwich.” (The judge, Sol Wachtler, himself later became someone’s treif lunch, and served time for blackmailing a former mistress.) But indictments wreak havoc on a defendant’s life; wasted time and money and heightened stress and aggravation are the norms, even when the defendant is eventually acquitted. And many defendants plead guilty to avoid bankrupting their families and to simply get on with their lives, even when they are innocent, especially when a draconian sentence hangs over their heads if they are convicted at trial. Government resources are essentially unlimited; they have all the attorneys and investigators they need. The private individual, excluding the very wealthy, is very limited. Yet, others fight on, and are rescued either by juries or appellate courts.

For example, the law now bars drug manufacturers from offering “anything of value” to physicians or corporate purchasers. Even a pen is considered a bribe that is actionable. One company offered free seminars to educate medical personnel as to how their product is used – and they were indicted and prosecuted ! The jury acquitted. Famously, the Arthur Andersen accounting firm, that audited Enron, was prosecuted, convicted and hounded out of existence – for applying the common accounting standards to the fake numbers that Enron was providing them. Their conviction, technically, was for obstruction of justice in following their routine procedures in shredding corporate documents while (unbeknownst to them) Enron was being investigated by the Department of Justice. By the time the US Supreme Court reversed Arthur Andersen’s conviction – in 2005 – Arthur Andersen was long out of business. At the end of the day, there was no conviction – but the company had failed as a result of the prosecution. Under similar charges in another matter, another accounting firm, KPMG, simply capitulated, sacrificed some employees, paid fines, and remained in business – even though the charges against it were equally tenuous.

Often the Feds will entice one principal, with the prosecutorial Sword of Damocles hanging over the victim’s head, to testify against his mates. Some are forced to sing, others (in Silverglate’s phrase borrowed from a former colleague) are taught how to compose – what to say in order to ensure convictions for others and a good deal for oneself. Other times they will hone in on a celebrity and prosecute the celebrity for “crimes” for which few others are charged; Martha Stewart is a case in point. Michael Milken pleaded guilty to a felony (to avert a prosecution of his innocent brother) that a judge in another trial later ruled was not even a crime. And there have been other prosecutions in securities and corporate matters – and even convictions – where appellate courts later ruled that no crime had been committed.

The prosecutorial zeal feeds the notion that the Government can prosecute anybody and everybody, if they so choose. Silverglate cites a magazine article that reported a snack-time game played in the US Attorney’s office in New York’s Southern District: the lawyers would name a random celebrity – e.g., Mother Theresa – and a junior prosecutor had to concoct a realistic crime for which that person could be indicted. And many statutes are so broadly worded that it is not that difficult. Built into the criminal justice system are catch-all offenses like mail fraud and wire fraud (transmitting false statements – even if you didn’t know they were false), conspiracy and racketeering, obstruction of justice and a host others that are loosely defined weapons with very sharp tips.

Some people therefore have no luck and no chance. A Connecticut lawyer was tried, convicted, sentenced to prison and disbarred for obstruction of justice for destroying child pornography given to him by his client – even though had he kept it, he would have been guilty of “possessing” child pornography and prosecuted for that.

Added to the uncertainty is the selectivity of prosecution, known in the trade as “prosecutorial discretion.” Thus, the actor Wesley Snipes sits in prison for tax evasion, whereas Al Sharpton has escaped the criminal justice system’s attention for very similar acts. AIPAC officials Steven Rosen and Keith Weissman were indicted for “espionage” for receiving information they were “not entitled to receive” about Iranian nuclear capabilities from a government employee (who himself pleaded guilty) – even though they were not government employees and theoretically not subject to that provision of the law. The prosecution was recently dropped, but not before the two had lost their positions at AIPAC.

What is completely absent in most of these cases is a “criminal state of mind,” i.e., an awareness by the individual that the acts he committed were in fact criminal and that he committed them with criminal intent. There are many fine lines in the law – that is why there is a Tax Court where the IRS doesn’t always win. There are scenarios in which it is impossible to determine whether in fact a particular course of conduct is criminal, leaving it ultimately to the prosecution to determine whether to indict, to a jury whether to convict, and to an appellate court whether to confirm or reverse. But it is obvious that elementary justice would demand that the laws have clarity so that even a layman would be able to ascertain what is lawful and what is unlawful. That shouldn’t take a team of lawyers, and certainly not an appellate court.

There are other equally egregious cases in the book, all of which leads me to take another look at the conviction of Sholom Rubashkin, now on appeal. Rubashkin was convicted on 86 of 91 counts charged, but the notoriety he has garnered far exceeds the weightiness of the crimes for which he was convicted and sentenced to 27 years in prison. Many of those counts were duplicative – each time a bank advanced his company money under “fraudulent” circumstances and each month’s report to the bank filed by his company were each considered separate counts in the indictment. Since the reports were likely mailed, those gave rise to the wire and mail fraud charges. The heft of the indictments can also influence a jury, on the theory that someone who is charged with so many things must be guilty of something. What was that ?

The basic fraud committed was apparently Rubashkin’s representation to the bank that his company ran a lawful business, which the Government charged was a “fraudulent” statement because of the alleged employment of child labor and immigration violations. But since those charges were either dismissed by the Government, or Rubashkin was acquitted at trial thereon, it emerges that the “fraud” was, if not contrived, at least overstated. And evidence of prosecutorial overreach is apparent in Rubashkin’s conviction for “failure to pay livestock dealers in a timely fashion” (he was a few days late), the very first time anyone had ever been prosecuted for such a “crime,” a regulation of the Department of Agriculture (seems more like a matter for small claims court).

What is even stranger is that Rubashkin was making timely repayments to the banks he allegedly defrauded, only defaulting after he (again, like Arthur Andersen) was forced into bankruptcy after the initial charges were lodged against him. How often is a person – businessman or homeowner – prosecuted for making a false statement to a bank on a loan application, even though he continues to make timely repayments on the loan ? Curious. That is not to say that Rubashkin is innocent of every charge; only that it seems that he – and the others cited above – were targeted for prosecution, and almost every target is eventually nabbed on something, anything, and then sentenced to an outrageously-disproportionate prison term.

That was also the fate of Scooter Libby, former Chief of Staff to VP Dick Cheney, who was convicted on several counts of perjury and obstruction of justice (and also ignored in the book). Libby was hauled before the Grand Jury investigating the outing of CIA agent Valerie Plame, and it was widely suspected that Libby had leaked her identity to journalist Judy Miller, leading to widespread condemnation of the Bush administration for trying to destroy the career (life ?) of an administration foe. But… shortly after the investigation began, the special prosecutor, Patrick Fitzgerald, had already learned that the source of the leak was not Libby but Richard Armitage, a State Department official who had inadvertently revealed Plame’s identity to journalists. So why was Libby being investigated for a crime that the prosecution knew he had not committed ? That is the question that remains unanswered, but Libby was convicted, sentenced to prison (commuted by President Bush) and disbarred for acts that amount to “mis-remembering” (to use a Bush-ism) details of conversations years in the past.

Obviously, prosecutorial misconduct is not the norm, and just as obviously, laws have to be obeyed by everyone without exception. But the laws have to be clear and comprehensible, prosecutions have to be reasonable and warranted, and justice has to be administered fairly and sensibly. Justice has to be “blind,” i.e., dispensed objectively without regard to politics, race, religion, wealth or status. It can’t ever be a perfect system, because it is administered by fallible human beings. But Silverglate contends, for the most part persuasively and frighteningly, that we still have very far to go even to achieve elementary fairness.

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A Tale of Two Letters

Posted on January 17, 2011 | 1 comment

(First published as an Op-ed in the Jewish Press, January 12, 2011)

Twenty rebbetzins in Israel recently issued a public call to Jewish women “not to engage in romantic connections with Arabs.” The declaration followed in the wake of a number of cases where Jewish women either inadvertently or intentionally became involved with Arab men and suffered grievously as a result.

More tellingly, it followed the controversial letter of 300 rabbis calling on Jews not to sell or rent homes to Arabs in Jewish neighborhoods. So first their husbands ban real estate transactions with Arabs, and now the wives prohibit social relations. What’s next?

What’s next should be interesting to behold as opponents of the rabbis’ letter vehemently objected to their psak in the most caustic and sometimes insulting terms, and moralists of all stripes compared the ban on home sales to Arabs to the Nuremberg Laws and the bygone era of discrimination against Jews across the globe.

The problem, of course, is that the Nuremberg Laws also prohibited social relations between Jews and non-Jews, so the same criticisms should pertain here. But if those criticisms are again lodged by the same critics, does it then mean we have reached a stage in this era of political correctness in which rabbis (or their wives) or Jewish leaders are not allowed to call for Jews to marry other Jews?

Must we stand mute as the intermarriage rate exceeds 50 percent because we are obligated to pay greater obeisance to ideals of the equality of man and individual freedom of choice – both noble Western values that are rooted in Torah but are never applied absolutely in a Torah (of, for that matter, a Western) context?

The conundrum that these cases engender is the occasional conflict between Judaism and democracy. Both are illustrious legal and political systems, the former of divine origin and the latter a human contrivance, and both are valued by modern man. But they are not identical. The Torah is not incompatible with democracy, but nor is it synonymous with democracy; if it were, then we would not need the Torah. We could merely consult the writings of John Locke and Thomas Jefferson instead of laboring through the discussions of Abaye and Rava.

And, ultimately, Judaism is a way of life that connects a person to the Divine and democracy an enlightened form of government that regulates the affairs of man. To conflate the two is to distort both, and to assume that the product of democracy is necessarily superior to the eternal Torah is an act of self-denigration unworthy of serious Jews.

In truth, I think it was unwise and impolitic for the rabbis to issue a public statement calling for a prohibition of home sales to Arabs. Such proclamations sound jarring to the modern ear and can never be fully understood by people outside the Torah world (perhaps not even by some within the Torah world).

That is because these ideas reflect the unique value system of the Torah, which has its own constructs, its own logic and its own worldview. It cannot be easily pegged into another philosophical or political framework. Try telling your non-Jewish friend that your son cannot marry his daughter and that you cannot drink his wine; there is no comfortable way to explain it.

It is for this reason that certain halachot are characterized as halacha, v’ein morim kein, laws that are not to be publicly discussed for fear of being misunderstood. Both the Nuremberg Laws and, l’havdil elef havdalot, the holy Torah, proscribe relations between Jews and non-Jews. The former did it out of racial hatred and pure evil; the Torah does so out of a need to preserve the unique character of the Jewish nation that would convey the divine idea to the world. The former was vile and odious, and the latter a reflection of God’s love for the Jewish people and for mankind. But a simpleton will only look at the results and, seeing the same prohibition, conclude, “it’s all the same.” It is not all the same, and that shallowness is more polemical than it is sincere.

* * * * *

It is difficult for me to criticize the rabbis in question because, after all, they were not acting as parliamentarians but as rabbanim who were asked a question of Jewish law by a “multitude” of people. Nor were they scholars drafting an article for a Torah journal in which they were bound to cite all opinions and leave the practical applications to the “local Orthodox rabbi.” They were the local Orthodox rabbis, and were duty-bound to answer a halachic question posed in a way that reflected the truth of Torah and the needs of the community they service. And they did.

Could one look at the same question and conclude otherwise? Invariably so – such is the nature of any halachic question – but their answer to their constituents, who after all live in the Mideast, not the Midwest, was reasonable and appropriate.

Why so?

In truth, the Torah does discriminate between Jews and non-Jews, just like shuls distinguish between members and non-members and countries distinguish between citizens and even legal aliens. And it is well known, and patently clear across the world, that people prefer to live among their own kind – especially minorities. That is why there is a Chinatown, a Koreatown, a Little Italy, a Spanish Harlem, a Boro Park, and hundreds of other ethnic enclaves. That’s not to say you can ban other people from living there (I happen to enjoy a little diversity); it is to say that as a practical matter, people recognize homogeneity makes for a more cohesive community and usually a better quality of life. And that is in the United States, still an oasis of stability.

In the Middle East, bear in mind that there are Arab countries – Saudi Arabia and Jordan leap to mind – in which land sales to Jews are banned by law under penalty of death. The Palestinian Authority has executed dozens of Arabs guilty of that “crime.” Israeli drivers entering Jordan – a nation formally at peace with Israel, treaty and all – are compelled to remove their Israeli license plates and affix Jordanian license plates, for fear that the sight of Israeli plates will inflame the local population.

Integration, a splendid ideal, has not been successful in the Middle East, not between Shiites and Sunnis, Egyptian Muslims and Coptic Christians, Iraqi Muslim and Kurds, or Lebanese Christians or Muslims. Nor has it been fully harmonious in Israel, where mixed communities like Lod, Ramle and Haifa often are the scenes of confrontations between Jews and Arabs with nationalistic overtones.

The rabbis’ letter relates directly to this state of affairs, discouraging the sales of homes and fields because of the fear of intermarriage, the potential loss of Jewish identity and cohesion in the neighborhood, and the danger of inviting (not a foreign but) a hostile element into a Jewish city. The rabbis relied on the Torah’s admonition of lo techanem, which one opinion in the Gemara (Avodah Zarah 20a) interprets as not giving non-Jews a foothold in the land of Israel.

Now, one can argue whether that applies only to the seven Canaanite nations, or only to idolaters (which Muslims are not), or to all non-Jews. But lost in the halachic discussion is the reality that these prohibitions existed because these groups were perceived as deleterious influences on the Jewish polity; one would have to be blind and deaf to reality to presume that the Arab presence in Israel today (even Israeli Arabs) is innocuous, and that Arabs in Jewish neighborhoods pose no threat. All the naysayers in Israel should be challenged: how many Arabs live in their neighborhoods – in Caesarea, Ramat Aviv, Ra’anana, Re’ut and Shoham? How do they anticipate maintaining security for Jewish residents when Arabs move into Rechavia, Rechovot and Alon Shvut?

* * * * *

Some of the critics are being more than a little disingenuous. Others seemed to be troubled more by the theoretical loss of the right of Arabs to buy homes in Jewish neighborhoods than the actual loss of Jewish homes in Gush Katif.

One very distinguished rosh yeshiva found fault with the rabbis’ letter for, among other reasons, calling for nidui, a form of excommunication, for those who will not heed the ban. He asserted that nidui is not mentioned as a penalty for a violation of lo techanem. But he erred, with all due respect, as the letter did not link nidui with lo techanem but with a separate halacha that prohibits the sale of Jewish-owned land even outside Israel to a non-Jewish anas (terrorist), and renders the Jewish seller also liable for damages caused to the remaining Jewish residents for “unleashing a lion upon them” (Bava Kama 114a, Shulchan Aruch Yoreh Deah 334:43). Clearly, that is the context of the rabbi’s letter, motivated not by anti-Arab animus but by a love of Jewish life and in an attempt to safeguard it.

There is a reason why the Jewish National Fund has refused to lease land to Arabs for a century; after all, it is the Jewish National Fund. There is a reason why there is a Law of Return that applies only to Jews. There is a reason why most Arabs are exempt from mandatory military service in Israel, a classic instance of discrimination.

Whether we attribute the exemption to forestalling the psychological discomfort that might be caused to Israeli Arabs who have to wage war against other Arabs, or simply because the military does not trust the Arab soldier to be loyal to Israel (excluding of course the Bedouin, Druze, and Circassians, among the non-Jews who serve with great dedication in the IDF), the effect is the same: Arab citizens of Israel largely do not serve in the military because they do not uniformly see their destiny as part of the Jewish state of Israel.

Obviously, none of this is relevant in an American context, in a nation that was founded on a non-denominational basis with liberty and justice for all. But removing these laws from Israeli society would engender a fine democracy while eviscerating the potential for a Jewish state.

Intermarriage poses a similar dilemma to Jewish survival, and it is fascinating that the words v’lo techanem are followed immediately in the Torah by the proscription v’lo titchaten bam (Devarim 7:2-3), “and do not marry them.” It is hard to justify, or explain to an outsider, why in an enlightened, egalitarian, modern society, in which love should conquer all and be the only foundation for marriage, Jews cling to the “antiquated” notion that Jews should only marry Jews. Understandably, a group of Reform Jewish women, right on cue, pilloried the rebbetzins for their audacity in calling on Jewish women not to date or marry non-Jewish men.

Will the rebbetzins’ declaration elicit the same catcalls from Orthodox circles as did the rabbis’ letter, and if so, on what grounds? Will the Nuremberg Laws be invoked again? Will the right of any American to marry any person serve as the predicate for a contemptuous dismissal of the rebbetzins’ concerns? Certainly, one can argue that lo techanem does not technically apply to Arabs, and argue similarly that the Torah does not technically ban “dating” non-Jews, only marrying them. But these are distinctions without differences. Both prohibitions share a common denominator: they are designed to preserve Jewish identity – as a covenantal people and as residents of the land with which God blessed our forefathers.

So why does the Torah – which, after all, posits that all human beings are created in the image of God – discriminate between Jews and non-Jews in certain laws? Because Jews constitute one family (that’s why we always argue with each other), and family is allowed to treat non-family differently; otherwise, there is no purpose to family. Thus, we are enjoined to “love your neighbor as yourself,” but I am allowed to love my wife and children more than I love your wife and your children.

As a Jew, I am commanded to love Jews more than I love non-Jews, not because there is anything wrong with non-Jews but because Jews are family. It is not immoral to distinguish family from non-family; it is right, natural and proper.

Some critics evidently feared a public relations problem, but they need not have overreacted. They should have calmly explained that there are Torah laws that are designed to foster a communal spirit and brotherhood that is essential to Jewish life. We are not obligated to treat non-Jews as family, but it must be underscored that we are obligated to treat non-Jews fairly, decently, respectfully and with integrity – even in Israel – in a way in which they are able to pursue happiness and fulfillment in life, and, in Israel, as long as they acknowledge Jewish sovereignty in the land of Israel.

Indeed, I don’t believe lo techanem means that land in Israel may never, under any circumstances, be sold to non-Jews. But when the Saudis are attempting to buy thousands of dunams in the Galilee and might soon be able to overwhelm the Jewish presence there, it is suicidal to pretend that elementary measures to preserve Jewish life in Israel are somehow unnecessary or inherently immoral.

Discrimination is a nasty word in an American context, so we should try another: havdalah. When Shabbat ends, we bless God who “distinguishes between the holy and the profane, between the light and the darkness, between Israel and the nations, and between the Shabbat and the six work days.”

These distinctions might not play well in Peoria or on the editorial pages of The New York Times (or some secular Jewish newspapers), and it is injudicious to make them the focus of the Jewish public persona. But they are real, substantive, and, understood properly, should be unobjectionable to all good people.

And they are also an important reminder to us that we are one family who share the blessings of our forefathers and who merit basking in the Divine Presence that has guided us back to the land of Israel to test our mettle, our faith in His Torah, and our worthiness for complete redemption.

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Posted in Contemporary Life, Current Events, Halacha, Machshava/Jewish Thought

The Rabbinate

Posted on January 13, 2011 | 4 comments

A piece I wrote in another forum has generated so much attention that it is worthwhile to reprise and expand on here.

Rabbi Shmuley Boteach is one of the most gifted writers and thinkers in recent times, and has a knack for defining the important issues on the Jewish agenda through his provocative and engaging articles. One recent essay (http://www.shmuley.com/news/details/the_end_of_the_rabbi_as_mr._nice_guy/) engendered much hostile reaction in the Rabbinical world in which I ply my craft. He posited that Rabbis have become too nice and therefore have lost the moral influence they once had; that Rabbis no longer lead but follow; that Rabbis delight in being perceived as “friends” and backslappers of their congregants, and therefore never challenge them on the excess materialism, vacuous lives, tawdry lifestyles, high divorce rate, immodest dress, lavish weddings, etc.; that Rabbis have too often become religious functionaries, and therefore have no influence in the real world where ideas reign and Jewish interests are deliberated by wealthy Federation officials. And then he got tough.

I have much fondness and sympathy for Rabbi Boteach, and a certain affinity for the Rabbinic straw-man he proffers, as shocking as that sounds. (!). I have personally witnessed unbecoming examples of Rabbinic timidity over the years that undermine our claim or even right to “leadership.” For example, more than 500 Rabbis recently signed a letter to President Obama requesting clemency for Jonathan Pollard, on grounds that a “life sentence” for his crime was excessive and unjust. Well, where have these people been for 25 years ? A life sentence was as unjust 25, 20, 15, 10 and 5 years ago as it is today. The answer is that Pollard’s cause was not mainstreamed until recently, so most Rabbis were afraid to be associated with him. The few voices in the wilderness – I can single out Rabbi Pesach Lerner of the National Council of Young Israel for his selfless devotion – were drowned out by a chorus of timorous, tentative followers, not leaders, who waited until it became “safe” to support a Jew in his time of need. Then, they joined the herd.

The herd mentality was also in full view sixteen years ago and throughout the Oslo process. Most Jewish organizations (again exempting NCYI, and ZOA too) – and most Rabbis– were petrified of opposing the Israeli government and standing up for Jewish rights of settlement throughout the land of Israel. Perhaps they were horrified at the notion of not being invited to the next photo op when Israel’s prime minister came to town, and so the warnings about the dangers of Oslo – the terror and the whetting of the Arab appetite for Israel’s demise – were not heeded. Opponents of the Oslo debacle were labeled warmongers, haters, users of vitriolic rhetoric, fascists and the like. One of my learned colleagues even proclaimed at a public Rabbinic forum on this matter that deliberated a statement of support for Jewish settlement in Israel that “we have no right to oppose the State Department.”

That was a bitter failure of leadership on the part of the American Orthodox Rabbinate, who, in line with Rabbi Boteach’s thinking, came into its own when terror ripped apart Israeli society. Then, Rabbis assumed their “traditional” role as “professional mourners,” guiding the recitation of the right Psalms, invoking the Almighty to stop the bloodshed and bring peace, and intoning pleasantries that struck a hollow note when compared to the complete abdication of responsibility that preceded it. Why were they so silent ? They didn’t want to offend, they didn’t want to upset their audiences, they didn’t want to speak about “politics” from the pulpit, there were different views on the issue in the “Congregation” and so they didn’t want to take sides, or the Board of Directors had directed them to bore their audiences with anything but what was on people’s minds at the time. Thousands of Jews were killed and maimed, in part because of this diffidence, and it remains a shameful chapter in our history – yet to be rectified and with the offenders in Jewish life yet to be held accountable.

In that regard – the failure of Rabbis to be effective, even controversial, leaders when required – I am in Rabbi Boteach’s corner.

This is where he misses the point. Rabbi Boteach has been remarkably successful in creating a new Rabbinic prototype – the celebrity-Rabbi. The celebrity-Rabbi has a public face, but need not give shiurim or drashot, or visit the sick, or counsel the ailing, or even attend smachot. He deals in celebrity. He may lament the shallowness of the material lives of many Jews – especially as he does not receive a salary from them – but he dabbles in the same superficiality, and because of it remains in the public eye. I have never understood how the Jewish people are bettered through understanding the essence of Michael Jackson or Oprah Winfrey, or assuaging Rick Sanchez or even trying to make Chris Hitchens a little more religious. (In fact, I question altogether the spiritual value of debating atheists in public, as I find it hard to believe any listener will change his/her mind, much less the debaters themselves. The whole event therefore smacks of “Torah as show biz” or “Torah as entertainment”.)

Rabbis have an obligation to disseminate the Torah idea to wide and disparate audiences, but properly, with the honor the Torah deserves. Trying to shout a Torah concept on a TV show or at a debate over the shrill voices of antagonists is not really “the honor of Torah,” nor particularly effective. The Rabbi then becomes just another talking head, in a society inundated by talking heads. But it is entertaining, and that I suppose becomes the whole point. It is somewhat fatuous to decry the emptiness of celebrity, and then make your reputation befriending and promoting celebrities, and then becoming one yourself.

I take issue as well with the criticism of the lack of Rabbinic influence in Jewish conclaves – that Rabbis “are seldom, if ever, consulted on issues of activism or policy.” That statement per se is true, but misdirected. Rabbis are not influential in Jewish organizations not because we are afraid to take positions (most of these organizations are superfluous anyway), but because these organizations are led by our oligarchs, who either bring in money to sustain them, or contribute it themselves. Some of these oligarchs even lead very lavish lifestyles that seem to draw a pass when their money is otherwise allocated to “productive” uses. But it is their money that matters, not their ideas; indeed, some of their ideas are so harebrained that they would be derided, if not for the fact that they put their money behind it. In the words of the old Jewish adage (in Hebrew it rhymes), “the one with the money is the one with the ideas.” Or, the Yiddish proverb: “with money in your pocket, you are wise and you are handsome and you sing well too.” Titans of business are not receptive to delegating decision-making to others who lack the same financial investment that they have made; in fact, they often assume their business acumen has provided them with insight into all areas of Jewish life.

Rabbi Boteach also conflates “influence” with media prominence (much like Newsweek does in its annual list of “influential Rabbis,” about half of whom I have never heard of, and I work in the field!). They are simply Rabbis who find their names in the public domain again and again, with the hype bigger than the reality. There are many rabbis with great influence over the lives of thousands of Jews who are unknown to the secular media, and just as well. Many of the Newsweek “Rabbis” are individuals who possess impressive organizational titles, but have no real influence in the Jewish world at all.

Rabbi Boteach seems to admire Rabbis who are financially independent, or have established their own organizations and therefore are not dependent on any community. Those Rabbis can do great things, but a Rabbi who is detached from any communal structure is also dangerous, as he can say and do anything with impunity. There are such mavericks in every generation. Rav Yaakov Emden (1697-1776) was one, to take an example that will offend no one. He spent only five years as a shul Rabbi, but left after he received a license from the King of Denmark to own and operate his own printing press, which enabled him to pursue controversy and torment his ideological foes at will. We have such mavericks today, as well, in a different context. They push the halachic envelope, and say and write whatever pleases them, because they are not accountable to anyone. It is easy to attack Jew-haters, Arab terrorists, neo-Nazis, et al – and G-d-bless those who have a platform to do so and do it.

But, what if you are even remotely accountable to others ? For example, and this in no way refers directly to Rabbi Boteach’s Values Network, with which I am unfamiliar: might a Rabbi who needs funding for some cause from the wealthy overlook that donor’s intermarriage, and thereby undercut the Torah message that perceives intermarriage as a horror and an incipient loss of Jewish identity ? Might a Rabbi who wants to curry favor with celebrities dampen the Torah’s vehement objection to homosexuality ? Would a Rabbi-columnist criticize the editors of the newspapers that publish his columns, admonishing them for printing material that is slanderous or salacious ? Hmmm… and for how long do you think those donations will be provided or that column will be carried ?

The same holds true for the Rabbi who always finds fault with his congregation, and hectors them for one failing or another. Rabbis should – must – challenge their flock – but sometimes people just want to be engaged, illuminated and educated. Sometimes they just want to be inspired by the Torah and not disparaged for the flaws. Finding the right balance is a key to the successful Rabbinate. If Rabbi Boteach enters the pulpit (and rumor has it that he is starting his own shul in a neighboring town), he may find that life in the pulpit is different than the glamorous life of hobnobbing with celebrities. Again, if he is financially independent (and it is a chutzpah that AJU thought to pay him less than the other participants in the atheism debate), then it won’t matter to him personally what he does or says, but he will find that people vote with their feet.

A rabbi who is too polarizing just drives people away – in our world, they don’t stay home and show up three times a year; they just go to the shul up the road where the Rabbi is not such a nudnik. On the other hand (to paraphrase Rav Yisrael Salanter) a rabbi of a shul whom no one wants to leave is probably not challenging his people enough. I don’t know what the appropriate measure is – the optimum number of people who at any one time want leave a shul – and certainly people can leave for legitimate reasons, and sometimes the shul benefits from their departure (call it “addition by subtraction”). But in such a case, the Rabbi has lost the opportunity to teach them Torah and bring them closer to G-d, and not just harangue them about their lifestyles.

Anyone can decry the wasted expense of weddings and Bar Mitzvas, and everyone should. The real dilemma is this: should the rabbi refuse to attend such a wedding or celebrations to make a point ? Sure, and if he chose that route, I can guarantee that he would not have to attend many more, because he would be looking for other work. And there is only so often you can castigate people for the “high divorce” rate – especially when it is not that high, both in real and in relative terms. Undoubtedly, you can put bodies in seats if you announce that Oprah is showing up one week, and Steadman the next – but is that what a shul is for ? Is that just a tool to entice people into the shul, or an end in itself ? And what moral compromises have to be made in order to accommodate the peculiar lifestyles of the rich and famous ? Those are all fair questions that need to be answered, once we overcome the obvious hurdle that, for most Rabbis, the rabbinate is not just a calling but also an occupation – the way they pay their bills. The Rabbi who is dismissed for being too controversial – or, for that matter, being too bland – has not done himself or his causes any favors, assuming he had what to offer the world of Torah.

In essence, Rabbi is lamenting the lack of independence that the average pulpit Rabbi experiences, and I share in that lament. I heard this true story not long. A Chasidic Rebbe said to an American Orthodox Rabbi: “The difference between me and you ? Your baalei batim (congregants) choose you; I choose my baalei batim.” The sentiment is accurate, but the Chasidic norm is hardly a workable model in a Western, democratic society in which people’s opinions count and matter.

That being said, Rabbi Boteach has done, as always, an admirable job in giving Rabbis and laymen food for thought. He has a unique ability to be self-critical in his writings, the hallmark of a striver for truth. (I find it hard to be self-critical in my writings. Wait a second, I guess I can for I just did !) His insistence that Rabbis should seek to be respected more than to be liked is trenchant and obligatory (of course, it is possible to be both respected and liked). His essay is therefore an effective tool to have people think about what kind of Rabbi they want, and for the Rabbi to consider the purposes and goals of his Rabbinate. Like everything else in life, those choices have consequences. And if his essay forces Rabbis to re-think or re-tool our own approaches to controversial issues, and speak out more, even when the causes are unpopular and counter-cultural but mandated by Torah and justice, then his article will have served a valuable purpose for all.

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Posted in Contemporary Life, Current Events, Israel, Machshava/Jewish Thought

A Nut is a Nut

Posted on January 10, 2011 | 8 comments

Before Jared Loughner, the Tucson shooter, had even finished pumping his bullets into the bodies of his innocent victims, the unctuous oracles of the left had already determined motive, cause and effect. The solons of simplicity immediately trumpeted that the “nasty, political climate” of the recent elections, the vociferous voices of talk radio and cable news, or even Sarah Palin herself had laid the foundation for the killer and his heinous deed.

Of course, there was not a shred of evidence to support this theory, which is both shameless and tendentious. The murderer has already clammed up, and by all accounts he was a misfit who was mentally unbalanced and did not bear within him a coherent thought. His writings revealed contempt for government, which he claimed exercises mind control through “grammar” and he also demanded a new “currency.” He doesn’t sound like any Conservative I know, but none the matter. It has been decreed from on high that the rhetoric of right-wingers engendered the dastardly deed. Where have we heard this before, and where have we not heard it ?

Fifteen years ago, the assassination of Yitzchak Rabin was immediately – and I mean, immediately – attributed to right-wing incitement, vitriolic rhetoric, hate speech, etc. Despite the fact that this was never proven; despite the fact that it was specifically renounced by Israel’s Attorney-General (see http://www.ynetnews.com/articles/0,7340,L-3125350,00.html); despite the fact that the apparent shooter, Yigal Amir, had consulted Rabbinic authorities who had told him that his intentions were both morally repugnant as well as counterproductive to the cause (Rabin was always perceived as more sensible and cautious than his successor, Shimon Peres); despite the fact that Amir, himself a government agent, was egged on in his crime by another government agent (Shin Bet operative Avishai Raviv); despite all this – and more – the die was cast. The motive was established and carved in stone: right-wing rhetoric. It became morally reprehensible even to deny that rhetoric was the cause, and abominable to continue to oppose the Oslo sellout of the late prime minister. His death was exploited – and is until today – for crass political purposes.

Interestingly, when President Reagan was shot by John Hinckley in 1981, there was no instantaneous rush to left-wing judgment – that the rhetoric about Reagan causing a nuclear war with the Soviet Union, or the threat to freedom entailed by his anti-abortion stance, or his desire to cut taxes and thereby entitlements had inspired Hinckley. There could have been, but there was no such suggestion made even from staunch Reaganites . Instead, we were fed this pap about Hinckley trying to impress the actress Jody Foster by shooting the president. Sounds reasonable, doesn’t it ? (Well, why didn’t it work ? Why was Jodie Foster not impressed by Hinckley’s attempted assassination ? Perhaps because Hinckley was…nuts ? Bingo.)

The attempts to attribute rational reasoning and decision-making to insane people is itself a distortion of reality, and to use the ranting – and crimes – of a lunatic, for audacious and obvious political gain, is beyond the pale of decency. The political danger lies in the ability of the mass media to carve its version of events into the public domain, never to be erased. It is done by repeated references to the “rhetoric,” without any specifics, of course, and winking allusions to this or that right-wing talking head. All of which creates the “impression” that the wingnut was motivated by a reason-based discontent with the American government – as if he was upset about the stimulus, and Obamacare, and the insanely-high deficit. The only way to counter these mendacious accusations is to, literally, fight back – with words, of course – challenging every allegation, confronting every accuser with the need for proof, and making sure that every single act of finger-pointing boomerangs.

The world has always had a nut problem. There have been misfits in every era, but until 30 years ago, the mentally-ill were usually housed in facilities that kept the public safe from them. That changed 30 years ago, and now it is illegal to institutionalize a moonstruck adult against his will. Some will argue that we need laws to prevent guns from falling into the hands of nuts – all true, but those laws already exist. (And, not to alarm anyone, there are plenty of illegal guns for purchase as well.) The problem lies in the difficulty of adjudicating someone a nut when he hasn’t yet done anything but act strange. These nuts fall through the cracks, and there is no foolproof way to thwart them.

There have been very few political assassinations (or attempted assassinations) in the United States not carried out by nuts. Lincoln’s assassination was politically motivated, as was the attempt on the life of Harry Truman by Puerto Rican nationalists. But Garfield, McKinley, FDR and Gerald Ford (and Reagan) all encountered a crackpot of one type or another. Gerald Ford, in fact, was shot at by two lunatics within three weeks; no one attributed the shootings to Ford’s unpopular pardoning of Richard Nixon. When JFK was shot, the same tedious refrain was also heard (“right-wing, right-wing…”) until the chorus realized that Oswald was a left-winger – a Communist at that. His sanity was never fully explored.

When these tragedies occur, we are left grasping for reasons, because it never makes sense. We especially hate to conclude that good people (a decent liberal congresswoman, a dedicated, conservative federal judge, a nine-year child) all had their lives shattered – in some cases ended – by the acts of a deranged and useless human being. We can only pray for the souls of the murdered, and the full recovery of the injured, and hope that the madman is executed in a swift and just fashion. (McKinley’s killer was tried, convicted, sentenced, and electrocuted in about seven weeks. That is swift justice.) The legal definition of insanity is an inability to distinguish between right and wrong; Loughner apparently knew that what he was doing was wrong, whatever alternate universe he was otherwise living on. He should be tried, convicted and executed.

History teaches us that the exploitation of assassinations for political ends is almost always a tactic of the left. (Strangely, the PC crowd does back flips to avoiding ascribing the terror of Muslims to Islam; we are told, for example, that the motives of the Fort Hood shooter are too mysterious to discern.) One reason might be that conservatives emphasize the notion of personal responsibility, and hold an individual solely accountable for his actions. Liberals are more inclined to ascribe responsibility and guilt to the collective, and therefore always seek motivation not in the miscreant himself but in society, or parents, or teachers, or the police, et al. The individual, according to this way of thinking, is almost absolved of any guilt, because the “real” causes of crime lie in the influences of others, rather than in the choices made by the criminal. Conservatives do not generally suffer from this illusion, because the influences of others do not eradicate the free choice of the criminal – a fundamental Torah concept as well. The narrative of societal responsibility resonates more with liberals than with conservatives, so it is almost natural – even absent the tawdry political motives – that liberals would seek answers in every place but the aggressor himself.

Those who are liberally-inclined should resist the temptation to look for genuine motives from a kook. We can bring no proof from the acts of a psychotic, nor should we try to do so. The attempt itself is not only outrageous, misguided and duplicitous, but also downright nutty. And we are all better than that. Normal people can have even vibrant and passionate political dialogue – and disagreements – without fear of provoking the nuts; they do not require any provocation. We need not stifle democracy in order to save it, and we certainly cannot mute the opposition to destructive policies on the specious grounds of the alleged motivations of the irrational.

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Posted in Contemporary Life, Current Events, Machshava/Jewish Thought