Oasis Songs: Musings from Rav D
Friday, October 5, 2018 / 26 Tishrei 5779

Starting on October 17th, Wednesday morning minyan will begin at 8 am rather than 7:15. There are two reasons for this. First, we are working to strengthen minyan attendance. By experimenting with this later start time, we are hoping that people who can’t make the earlier time will be able to join this part of our Neveh community. There are so many advantages to attending minyan, and I encourage you to discover them. Second, at the end of minyan, one of our clergy will offer a short lesson or thoughts on how to pray. 

I hope to see you then!

Summary: Rabbi Kosak reflects on the Kavanaugh confirmation hearings and teaches about a Jewish legal tool that is used in uncertain cases such as the one in front and center of the country. 

Put not your trust in princes or the son of man.
Tehillim 146:3

For there is not a righteous person upon earth that does good and does not sin.
Kohelet 7:20

You shall not render an unjust decision. Do not be partial to the poor or show deference to the rich. Judge your neighbor fairly.
Leviticus 19

A judge should possess seven qualities: wisdom, humility, fear of God, hatred of money, love of truth, amiability, and a good reputation.
Maimonides, Yad, Sanhedrin

Over this past week and a half, a vast swath of America has been transfixed over the Supreme Court nominations proceedings. In many ways, it has become a Rorschach test for what each of us believes. Is this a dirty political fight? The ideal case to litigate the #metoo movement? Another example of the inordinate power of old white men? Payback for Merrick Garland? An example of how our courts are just another partisan institution? A case of he says/she says? “Hell” as one senator called the hearings? A disgrace or a chance at redemption? As a nation, we can’t even decide what these hearings are about.

In a country that is already deeply polarized, we all witnessed those divisions writ ever larger. The level of rancor, certainty, self-righteousness and outright name-calling that has appeared in the press, online media and television news has been stunning. It has come from all sides and all camps. Much of our national discourse has been reduced to a mobbish low and reasoned considerations have been lacking. There’s no question that the stakes are high, nor how low people have gone in an effort to win those stakes.

In the midst of this political storm, it is possible to believe that democracy has died and that we have all been eye-witnesses to its death throes. A more measured perspective will recall how bad things looked for America during the McCarthy era or other major crises (Watergate, the Clinton impeachment trials, the Cuban Missile Crisis…) and understand that our nation also survived those tremendous challenges. Moreover, after the worst excesses of those moments passed, the nation found a new equilibrium.

Let’s set aside those more global concerns for the moment (I’ll return to them at the end of this article) and ask what light Judaism can provide us about determining the truth in a court of law. Does the Jewish legal tradition offer guidance when determining difficult court cases where the judges lack sufficient evidence or reliable witnesses?

To highlight our specific situation, it is unclear if there would ever be enough corroborating evidence to sway the minds of those who are already convinced of which party is telling the truth. Even if Mr. Judge would come forward and either confirm or deny Dr. Blasey Ford’s version of events, he is a questionable witness whose testimony could be self-incriminating. Doubt would remain in the minds of many.

Barring evidence from two or more people looking through a window into the room with Dr. Blasey Ford and Judge Kavanaugh where said events transpired (reliable witnesses who were uninvolved, and had nothing to gain, in other words), it is hard to imagine that definitive proof is even possible.

Such cases are not all that uncommon in jurisprudence. That should not dissuade us to pursue the truth, nor of our responsibility to make the best decision we can. Within the Jewish tradition, judges (beit din) would often be required to make a decision when reliable witnesses were lacking. To aid them in such difficult cases, the Talmud presents a number of logical tools that they can turn to.

One of those tools is the “migo.” “Migo” is an Aramaic word that means “since.” In the Talmud, this is spelled out: “since an accused person could have made a better claim than they did (one that was more to their benefit), we can assume that the individual must be telling the truth.” The psychology behind this claim holds that if one was predisposed to lie to protect their misdeeds, the person is unlikely to put forth a weak lie instead of a stronger lie because the weak lie still exposes the person to legal jeopardy.

For example, Moses claims that Sarah owes him a $1000. They appear in court, and Sarah says in her defense, “I owed him the money but I repaid the loan in full.” In such a case, Sarah would be believed because if she were lying, the lie she offered is weak. It would have been a far stronger lie to say that she never borrowed money from Moses at all. By claiming that she repaid him, she opens herself to a fuller investigation. This is a simplified example of the migo. It must be emphasized that the use of a “migo” is highly restricted. It can’t be applied when there are reliable witnesses, or when we have valid contracts or other dependable evidence. Additionally, the evidence we adduce from this logical tool can’t divide a case into parts. If we accept the migo, we also must accept the entirety of the case as it is determined by that migo. 

Moreover, according to some authorities, the migo can’t be built on a lie—to be accepted by the court, it must be based as close to the truth as possible. For these and other complex legal reasons, the migo is a tool of last resort, applied when other means have been exhausted.

What this points to is a reminder that the criteria for legal truth are often quite different than scientific truth. In law, we are confronted by the limits of human knowledge and our imperfect capacity to determine the truth. That’s what the migo acknowledges. Simultaneously, the alternative to law, imperfect as it is, is violence and lawlessness. The basis of law depends on a level of societal trust in our institutions and especially in the impartiality of our courts. That trust has been severely eroded, and long before the Kavanuagh hearings.

While it is looking almost certain that Judge Kavanaugh will be confirmed, it is the breakdown of our civics that concerns me most. It seems to me that robust democracy demands a willingness to make room in society for viewpoints and people with which we disagree—or even abhor. It requires that we accept the imperfect conclusions our judges and leaders by necessity must make. It means that not all political tools should be used or we risk far more than the outcome of any given issue. It implies that sometimes defeat is better than victory. It requires that society is moving, however slowly, to greater inclusion and equality for all. All of these depend upon and are undergirded by trust. Without trust, the only thing that matters is winning the battle in front of you.

Ultimately, it was not only, or even most importantly, Judge Kavanaugh or Dr. Blasey Ford whose words were put on trial this past week. It was trust itself. And the American people have found trust to be lacking. It will take a long time to restore trust in our system— far longer than any Supreme Court Justice’s lifetime tenure.

Is this the end of American democracy, or like the eras of McCarthy and Watergate, a moment we will move through? The answer depends on whether we can find a way to trust one another again. Trust is earned and we seem too quick to judge. We’ve been spending for so long, that our national trust deficit threatens the very economy of freedom.

It’s time to start rebuilding. Get involved.

May the peace, joy and justice of Shabbat filter out to our shattered nation,

Rav D

Shabbat Table Talk

  1. Which Supreme Court decisions impact your life on a daily basis? Weekly? Monthly? Yearly?
  2. How would you like to see our government investigate judges going forward?
  3. What would make you have faith and trust in our judicial system?

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In Place of Torah Sparks Commentary This Week