Position Paper: Federal Judicial Nominations

Facing the possibility of a series of retirements from the Supreme Court in the coming years, the United Synagogue of Conservative Judaism feels it is important to articulate the type of nominee who should be considered for the United States Supreme Court. We do so now as a matter of principle, rather than waiting until nominations begin. By articulating Jewish values for judges, we hope to have our faith-based perspective included in the deliberative process.

Jewish tradition understands the role of rabbis not as legislators but as judges who interpret and make decisions regarding Jewish law (halakha). In that sense, Supreme Court justices serve a similar function regarding American law. By extension, federal, state and local judges function as arbiters, not lawmakers. Nevertheless, the application of principles often results in the law itself being judged at the same time as the litigants. An understanding of the decision-making process in Conservative Judaism may illustrate our understanding of how a jurist should consider matters before him or her.

There are three influences on Jewish law, and they parallel three influences on American law. First is the foundational document. For halakha, it is the Torah. For the United States, it is the Constitution. The documents are not equivalent, but they serve the same function.

Second is interpretation and application. In Jewish law, that process is termed midrash, the attempt by scholars to draw out the many implications of the law through precedent and reason. In American law, judicial opinions serve a similar function, relying on both precedent and reason. While interpretation may seem fanciful at times, it must pass reasonable standards of both consistency and common sense. In other words, even an innovative interpretation that extends the letter of the law must remain within the spirit of the law.

Finally is community. Any well-trained rabbi or judge understands that the law exists for the people, not vice-versa. Halakha itself forbids the imposition of a legal ruling that people will not respect. As circumstances change, the community’s understanding of the law and individual laws change as well. A judge must be able to gauge the inclinations of society in considering any ruling.

In short, Jewish law is where eternal principles meet contemporary circumstances. American law is where foundational values meet modern society. Rabbis and judges must honor all three influences on the law, and they must seek a balance between tradition and change. Neither the intent of the original legislation nor the passing standards of contemporary conduct is sufficient in and of itself as a standard of judgment.

Of course, judicial impartiality is essential. Our tradition looks to the instruction of Torah (Exodus 23:2 and Deuteronomy 1:17) to emphasize that judges must show favor to neither rich nor poor, powerful nor powerless. That standard applies not only to the litigants in any given case, but to ideology as well. A judge must seek to set aside personal inclinations when adjudicating.

Within the Conservative movement, legal decisions are made by the Committee on Jewish Law and Standards (CJLS), a group of rabbinic scholars impaneled to deliberate on matters of contemporary concern. They are chosen for their knowledge of the law, their proven wisdom and the respect they enjoy from a broad range of constituents. Every effort is made to ensure that a variety of perspectives are represented on the CJLS so that it does not become an ideologically defined court of last resort.

As is customary in Jewish law, the local rabbi is empowered to interpret and apply the rulings and guidance of the CJLS in his or her own community. To an extent, that local autonomy parallels the relative autonomy of state and local courts in American law.

Based on this understanding of how the law functions, the United Synagogue of Conservative Judaism believes a jurist should:

1. Be well trained, well educated and enjoy wide respect among diverse segments of society.
2. Eschew an ideologically defined approach to judicial interpretation. That is to say, a jurist should be neither an activist for change nor an unalterable opponent thereof.
3. Demonstrate in his or her past decisions a balanced respect for foundational documents, reasonable interpretation and societal realities.

The United Synagogue of Conservative Judaism calls upon the President to nominate people who have demonstrated these qualities to the federal bench, including the Supreme Court. We also call upon the Senate to use these same standards in exercising its obligation to advise and consent or withhold consent on such nominees. No nominee should be judged on the basis of his or her decisions, judicial or otherwise, on one specific topic.

To see how United Syagogue applied this process to the nomination of Judge John Roberts to the Supreme Court, click here.