Author Archives: Rabbi

Two points need to be made at the outset: the nomination of Sonia Sotomayor for the United States Supreme Court was the obvious, and politically clever, selection; and she will be confirmed, barring the equivalent of a political meteorite derailing the proceedings. And based on past standards, she certainly seems fit to serve. Nonetheless, there are two disturbing elements in her nomination – the obsessive focus on her “compelling personal story” and the lamentable resurrection of identity politics.

Her story is no doubt “compelling” – poor daughter of Puerto Rican immigrants, denizen of the Bronx projects who found her way to Princeton, Yale Law School, and years later to a federal judgeship. But “compelling personal stories” are acceptable material for a People magazine article; of what real relevance are they to qualifications for a Supreme Court position ?

Imagine, for a moment, the inverse of her story: a young white man is raised in luxury, the son of two distinguished judges, educated at the finest schools, lauded for his judicial temperament and abilities. Is he to be denied an appointment because his story is not compelling? And what if a candidate with a less “compelling” story is more qualified? Does her poor background render her more capable of interpreting the Constitution ?

Well, the President asserted that her background provides her with a wellspring of “empathy” that will render her a better justice. But consider: what role does empathy play in justice generally? On this matter, it is interesting to note that the Talmud required judges to have several indicia of compassion, particularly that they have children (Masechet Sanhedrin 36b), as those who have no children are presumed to have less compassion than parents have (children presumably force their parents to learn compassion, as well as tolerance and patience). On that score, Sotomayor – who is childless – fails. But must it be true that someone from a poor background will necessarily be more empathetic? One can easily argue the opposite: someone who “made it” by working hard might have less compassion for others, of similar circumstances, who are drifters and slackers.

Of course, the difference between the Talmudic requirement and the current situation (beyond the obvious that Talmudic law does not apply here) is that Sanhedrin judges were trial judges, where empathy is a useful trait in assessing the credibility of witnesses, and even invoking mercy in judgment. Does – should – empathy play any role on an appellate court, especially the Supreme Court which never sits as a trial court? The Supreme Court primarily decides issues of constitutional import – divergent opinions in Circuit Court opinions, passing judgment on the constitutionality of statutes, etc. Should empathy play any role in ascertaining the intent of the Framers of the Constitution ? If one answers “yes,” the question is, why ? Why should empathy figure in those judgments at all ?

Resolving conflicts of laws, antitrust matters, or the intent of Congressional legislation requires many traits, but empathy should be very low on that list. Should the High Court tighten the rules against illegal searches and seizures because it feels “empathy” for the criminal ? Should it provide for government funding for abortions out of empathy – and based, precisel=, on what constitutional provision ? Should it decide the fate of suspected terrorists based on empathy – or based on the Constitution ? That slippery slope – of allowing, and here expecting, justices to insert their subjective frameworks in the deliberations and inform their conclusions with their own biases – is what makes the return of identity politics so pernicious.

Once again, we have taken a U-turn from Martin Luther King’s vision of an America in which he hoped people will be judged “not by the color of their skin but by the content of their character.” The notion that, for example, a Hispanic is needed because the Court lacks a Hispanic, is patently offensive because it assumes that all Hispanics think alike, and therefore, the President need only select one Hispanic candidate from the list, and all is right.

In truth, identity politics is an old media game, and political ploy. No sophisticated, intelligent voter will support a candidate simply because that candidate nominates people of shared ethnicity. Certainly, the first President Bush gained no political capital from blacks after nominating Clarence Thomas to the Supreme Court. But this is a media game – keeping the ethnic and racial scorecard, celebrating the liberal choices as “inspired” (Thurgood Marshall, Madeline Albright, Sotomayor, et al) while disparaging the conservative ones as “tokenism”  (Sandra Day O’Conner, Colin Powell, Thomas, Condie Rice, et al). President Reagan’s Secretary of the Interior, James Watt, was forced to resign his post in 1983 when he remarked that a Senate advisory panel consisted of “a black, a woman, two Jews and a cripple.” He wasn’t wrong, he was just too honest. Perhaps people were outraged that he dared to point out the simple truth of “identity politics” run amok, of people being judged not based on their talents or abilities but on their membership in a particular group that is especially favored or otherwise entitled – by virtue of some extraneous, irrelevant characteristic – to a seat at the political table.

Obama’s choice then is most clever, as he satisfies the public advocates in both the Hispanic and feminist lobbies. As Justice John Paul Stevens is likely to retire in the next year, Obama will then have an opportunity to appoint another liberal, of course, but preferably one who is handicapped, a homosexual, and from a state that he did not carry in 2008. That would be a political jackpot, but what it says about the current state of American political life or the quality of the judiciary is another matter altogether. Conservatives, Jews (there are two already on the Court), healthy, heterosexual white males need not apply. “Content of one’s character,” indeed.

The Obama-Netanyahu summit, expected by some to be a “steel cage death match,” came and went, and while it is difficult to know what really went on behind the scenes, certain speculations are possible. Many expected the talks to be characterized as “frank and constructive,” diplomatic speech for “chairs were thrown at each other, and a screaming match ensued.” Instead, no such phrases were used, and what was most constructive is that it seems that Israel and the United States can diverge on their interests (or their interpretations of their interests) without the solar system collapsing.

Their post-conference body language indicated that Netanyahu had been eager to make his points and shift the diplomatic focus away from the Palestinian track to the Iranian track, and that Obama did little more than recite his talking points but failed to persuade the Israeli Prime Minister. All in all, Netanyahu appeared to have acquitted himself well, and has internalized and applied the lessons drawn from the mistakes of his first term.

The Old Bibi had good ideas but little staying power. He saw his political survival as rooted in pleasing an American President (then, Clinton) and satisfying Clinton’s and the media’s obsession with signing ceremonies, winners and losers and constant drama. What actually happened when Netanyahu could not say “no” – and signed the Hebron accords, made dramatic concessions at Wye Plantation, and failed to return from Wye with a liberated Jonathan Pollard, as he had been promised by Clinton – was that he alienated his own base, lost his political standing and credibility, and soon thereafter, his office.

“No” has a power all its own, and any self-respecting country has to say it on occasion – even to friends and allies – when its interests are jeopardized. Thus, at the G-20 summit in London in March, President Obama made two requests – for more European troops in Afghanistan and for increased stimulus spending by European countries. All of Europe responded to both American requests with a polite but resounding “no,” and somehow, life went on. The same can happen – did happen ? – here, and life, indeed, does go on.

Of course, the possibility cannot be ruled out that Obama will be tossed the bone of the uprooting of some outposts, as a “sign” of Israeli conciliation and a message to the Arabs that Israel will still play ball. If so, that would be an error on a number of grounds, including the fundamental notion that Israel need not show its conciliatory credentials. Most of the problems of the last 15 years have been caused by that pointless exercise, so it is foolhardy to keep heading down that road to a dead end.

New Bibi is in the strong position of being able to tell the American president that he, too, was elected on a platform of “change,” and he is charged with making a stark and dramatic break with the misguided policies of the past that have led Israel into this political and strategic morass. He is well situated  – together with FM Lieberman – to introduce into Israeli diplomacy a new paradigm, where progress is made not toward peace but towards stability and prosperity, and Israeli surrenders of its territory – that has grievously weakened its strategic standing – are a thing of the past.

Good for him that he refused to publicly endorse a Palestinian state, and that he insists on diplomatic recognition of Israel as a Jewish State. That, coupled with the expansion of Israel’s settlements and a relentless war waged without letup on the terrorist infrastructure, bodes well for the immediate future. It bears a reminder that during Netanyahu’s first term as PM, terror declined dramatically, and less than 30 Jews were murdered by Arab terrorists from 1996-1999. That was the outgrowth of a strong policy, but Old Bibi received no political credit for that (bitter irony, that, in light of the monstrous years of terror that followed) because he betrayed himself and the people who elected him.

If appearances reflect reality, then New Bibi may accomplish great things, and there may finally be a Likud PM who governs from the right and implements the policies and preferences of those who elected him into office. What a novel concept that would be (!), and that would greatly facilitate Israel’s rehabilitation from its recent debacles.

    Pope Benedict XVI spent several days in Israel and the Middle East this week, and accomplished… exactly what ? There are world leaders who travel regularly, especially when their domestic popularity is waning, because mere presence in the company of other world “leaders” is inherently legitimating. And no doubt that a visit to Israel is fraught with symbolism, as Christianity itself was incubated in the Land of Israel, and the visits of previous popes were respectively sour (Paul VI) and amiable (John Paul II). So how did Benedict XVI fare on his visit ?

     He can be graded on style and substance.

STYLE: Resplendent in his white robes and surrounded by an entourage, the Pope certainly cuts an exotic figure. He visited all the right places and spoke to all the right people – even if, in truth, most Jews are discomfited by his presence. The sight of a cross at the Kotel remains jarring, but it would be unseemly to ask him to conceal it.

     But it is the fact of his visit rather than anything he says or does that carries some weight, especially for Jews who look for international recognition of Israel as the source of its legitimacy rather than merely a reflection of its legitimacy. That he comes to a sovereign Jewish state as the leader of a Church that has had a long and bloody history with the Jewish people and for too long declined to recognize Israel’s existence, and stands and listens to the playing of Hatikva – even if that was not his preference – speaks volumes about the progress of recent years, but not many volumes.

     We should not get too carried away by symbolism, which is all the rage today and is often lauded at the expense of concrete achievements or concessions. For example, reports abound that for the last several years Israel has been negotiating with the Vatican the surrender of several Christian sites in Israel, including parts of Mount Zion – which all would be transferred to the sovereignty – yes, sovereignty – of the Vatican. This, of course, is absurd, dangerous, and against the Torah. Jews need not make concessions – certainly not barter away the land of Israel, and the heart of Jerusalem – for the crumb of recognition, or for the brief stay of a distinguished tourist who doesn’t even stay in Israeli hotels or shop on Ben Yehuda.

      So, for mere presence, the Pope’s style merits a B+.

SUBSTANCE: Clergymen generally talk a lot, and the Pope is no different, so his visit was filled with speeches that called for peace, brotherhood, friendship, etc. – in other words, the Platitudes on the Mount. To paraphrase Stalin, the Pope has very few divisions left, as the majority of Catholics today inhabit the Third World and Christian Europe is in a free fall approaching collapse. Nothing he said really matters, except that his endorsement – again – of the partition of the Land of Israel into two states is unhelpful and unworkable, but part of the world consensus that, sad to say, Israel itself is at fault for inspiring through the Oslo debacle.

     Many Jews were further annoyed that, at Yad Vashem, the Pope neither apologized for the Holocaust nor even mentioned Germans, Nazis or the word “murder” (he used “killed” instead). Nor did he relate at all to his own small role as a soldier in the German Army late in the war. I suppose he could have begged for forgiveness, pleaded for mercy, and accepted the responsibility of the Church for 19 centuries of atrocities against the Jewish people. But did we really expect that to happen ? And, if he did, would we have said “OK, now we can let bygones be bygones” ? I think not.

       A Rabbi once used as a description of the impossible “sending the Pope a shtreimel and hoping he’ll wear it.” Well, certain statements are impossible – for several reasons:

    1) The Pope is limited by the ideology of his church, and pleading guilty for past sins undermines his own legitimacy. Americans grew too comfortable in the 1990’s with the spectacle of President Clinton apologizing across the world for American sins (as President Obama has recently begun doing himself). But there is something hollow about apologizing for the sins of others; inherently, it lacks sincerity and often sounds more like a cheap stunt,

     2) He may not believe himself that the Church is liable for anything, that assuredly there were bad actors, and “mistakes were made” – but none that require his personal apology. Do not forget that this Pope was the longtime head of the Congregation of the Doctrine of the Faith – that monitors Catholic doctrine and roots out dissenters. Whatever else he is, he is a true believer. And, as we saw recently, the Catholic obsession with forgiveness – even of evil and evildoers – induced the Pope to temporarily welcome back into the fold a Holocaust-denying bishop. And who knows what true feelings towards Jews lurk in the unconscious of this proud German Catholic.

3) Germans today generally feel shame, but no guilt, over the Holocaust, as they have effectively – perhaps sincerely – distanced themselves from the perpetrators. So he may feel no guilt – and perhaps not even shame, and may further feel – as some do that the Holocaust was an assault on and a distortion of Christianity rather than a natural consequence of it. Would the Pope ever embrace the latter formulation ? Let us send him a shtreimel and we will see.

      So, the Pope inevitably said what he wanted to say, and many Jews inevitably found fault with it – and in the end, does it really matter ? Did the pomp, ceremony, speeches, or the fawning accolades strengthen Israel in the least ? I think not. And providing the Arabs with the aura of statehood sounds a dissonant but not unexpected chord.

      These types of visits are unfortunate political and diplomatic necessities, mostly forgotten after they are over – but we would be upset if the Pope bypassed Israel or refused to visit. So, come in peace and go in peace – but on substance, the Pope’s visit to Israel merits a C-.