Oasis Songs: Musings from Rav D
Friday, September 25, 2020 / 7 Tishrei 5781

Summary: I felt it necessary to reflect on the passing of Ruth Bader Ginsburg and two of the things we lost as a consequence of her death. She was an important judge and a member of the tribe. Her death, this close to a contentious election, has distressed many of us.

Let me also pause and wish everyone an easy fast as we head into Shabbat Shuvah, followed by Yom Kippur on Sunday night. I trust by now that you have easy access to information about the many offerings, programs and prayer services that are available at CNS.

If you are available on Monday at 2:30 pm, I will be sharing some poems that try to capture much of the struggle and even anxiety that so many people have been experiencing since the pandemic began. While the poems are my attempt to distill some of that heartache, it is my hope that will allow us to reflect on the challenges we have faced as well as pointing us to a place of greater ease in this time of upheaval. I think that is part of the teshuvah process this year.

Finally, while this Oasis Songs is not partisan, it is primarily about politics, and not everyone is interested in that. Please remember that the Torah Sparks link at the bottom of the page provides meaningful reflections. This week’s article, by Rabbi Iser, offers some heart-felt thoughts on teshuvah.

May we all be inscribed in the book of life.

Associate Justice Ruth Bader Ginsburg left her chambers for the final time in the waning minutes of 5780. Learning of her death two hours before our Erev Rosh Hashanah services felt like a punch to the gut. What a devastating loss to our nation.

There are two main forms that loss takes.

The first is that the figure, the person, of RBG was tremendously important to so many of us. As a general rule, I have not followed the intricacies of the Supreme Court on an ongoing basis, although on those cases that captured my attention, it was always so compelling. Rabbinical training really prepares one to “wonk out” on the details of a case and the often brilliant reasoning marshaled to provide a legal opinion. The Supreme Court is a repository of some of our nation’s very finest minds, and the loss of RBG’s mind demands we each find a way to mourn her now silenced intellect.

That said, over the years I have listened to numerous recordings and interviews of Justice Ginsburg, and have always been struck by her keen mind and her natural abilities as a raconteur. That woman could tell stories, and they were so often stories of humanity denied, and how the court’s job was to rectify those cases of diminished humanity. While I am not an American legal scholar, it seems that a central part of her legal worldview was that a woman—or any person, really—should have the capacity to fulfill her potential. A legal system that squelches such potential does a disservice to life. That feels Jewish to me.

For many people, Justice Ginsburg was far more than a jurist—more even than a rock star. She was a feminist icon, symbolized many positive virtues and served as a role model for young girls and middle-aged men. That sort of symbolic power is not easily replaced. But one needn’t let such an important symbol disappear just because she is no longer with us.

As Jews, there’s no recording of Moses or of our early Sages that we can turn to. We can only sense their personalities in the spare words of the Talmudic page. Despite that, the symbolic power of Moses continues to inspire us to seek justice thousands of years later.

We are blessed to live in a very different era, when so much of a notable person can be preserved electronically. If you are feeling torn up by RBG’s death, please take advantage of the internet. There are so many amazing opportunities for each of us to continue to learn from her—even to debate her in those cases where you might disagree with a position she took. That would definitely be Jewish!

There’s a second and more grave loss and that concerns the integrity of the court in the eyes of the public. We have reached a point where large numbers of Americans no longer trust the institutions that are the basis of our nation. In our age of polarized politics, the Court was hardly immune to suspicion although more Americans trust it than any other branch of government.

If a new judge with a right of center judicial philosophy is appointed, as seems most likely, an important fulcrum of balance on the court will be lost. While that might seem like a victory to those who hold a right-of-center outlook on life or the law, I worry it will be a very short-lived and pyrrhic victory. Balance on the court is an essential part of its ability to do its job. If Americans no longer trust the highest court of the land to render impartial decisions, this threatens to create even more instability in the body politic. If you don’t trust your police, don’t trust your politicians and don’t trust your judges, what’s left? Violence? That will harm everyone, regardless of their political leanings. I understand why Senator McConnell is acting as he is, but he is deeply misguided to treat this as just another exercise in political will. There is real risk to our republic, and this will exacerbate the fissures of our time.

What makes me feel more optimistic is Ruth Bader Ginsburg herself. She reminded people that SCOTUS remained the last bastion of our government which surprisingly and consistently rose above partisanship. She remarked that the Supreme Court was the most collegial place she ever worked. This goes beyond her famed friendship with Justice Antonin Scalia.

In an an interview at the University of Chicago during September of last year, she was asked what had changed on the court since she arrived 26 years ago. What has changed, she stated, is the perception of the court by the public.

What had not changed, she continued, is a more hopeful reality, namely, that “we agree more often than we disagree.” Since 2000, over 35% of all cases were unanimously decided. In 2016, unanimous decisions accounted for 59% of all cases! The more contentious 5-4 decisions, which the media gravitate to, only represented 14-20% of cases depending on the year, a small minority of the court’s work. Most cases are close to unanimous.

Given the very different judicial philosophies exemplified by Ginsburg and, say, Clarence Thomas, that’s encouraging. It is also how it should be. The law may not be perfect. It evolves in fits and starts as it tracks society. And some of those split decisions may involve “hot button issues” that matter more than mere numbers can convey.

Nonetheless, RBG thought it was important to remind us that SCOTUS retains a high degree of impartiality. In real if incomplete ways, the law stands above the fray and partisanship. That ought to provide us some comfort that there remains much that is united in our United States. If only the example set by RBG and the rest of the court were emulated by our elected officials! If only the majority of legislation passed was bipartisan!

At the same time that we can celebrate how much unanimity the court displays, Judaism offers a different assessment of justice. When it came to life and death matters, such as the use of the death penalty, decisions made by a unanimous court were thrown out. A court in which every judge agrees to kill someone has something inherently wrong with it, our tradition teaches.

The most important decisions probably should have strong disagreements. And that is why the balance of the court remains something that all Americans ought to support, regardless of political party. The current structure we have to appoint justices needs to be changed.

Which is a reminder that all Americans need to vote. Every voice counts, even those with whom we might disagree. Even in 2018, when a greater percentage of people voted since 1914, fewer than half of eligible voters cast their ballot. A country in which only a minority of its citizens votes is not worthy of being called a democracy. I would hope that every congregant at CNS who is of voting age has signed up and will vote this year—and every year. Voting is a right, a privilege, and it is also a duty.

May the memories of Justice Ruth Bader Ginsburg and Justice John Paul Stevens, who also died this year, be a blessing. May all those who defend the law and fight for justice be remembered.

Shabbat Shalom,

Rav D

Shabbat Table Talk will resume next week. Instead, please consider discussing the teshuvah work you would like to focus on this year.

If you’d like to continue this discussion, follow this link to CNS’s Facebook page to share your own perspectives on the topics raised in this week’s Oasis Songs. Comments will be moderated as necessary.

Torah Sparks Commentary This Week