Trump’s judicial plans vs. Jewish law

During his first term in office as president, Donald Trump set out to reshape the federal judiciary by packing it with ideologically conservative nominees, many on the far right. He has made it abundantly clear that he intends to finish the job this time around. That is not good news for America, because federal judges are appointed for life and it will take many decades to undo the damage these judges likely will do to our democracy.

With the help of then Senate Majority Leader Mitch McConnel (R-Ky), who steered their confirmations through two ideologically divided Senate sessions, Trump substantially succeeded in doing so the first time around, most significantly through the 54 judges he placed on the all-important federal appellate court bench, the last stop for litigants before their cases land at the doorstep of SCOTUS, the Supreme Court of the United States. Virtually 80 percent of those appointees were either current or former members of the Federalist Society for Law and Public Policy Studies, the significance of which will be seen below.

Trump even managed to turn three ideologically balanced circuit courts into solidly conservative ones — Atlanta’s 11th Circuit, Philadelphia’s 3rd Circuit, and Manhattan’s 2nd Circuit.

He also made the federal court system less diverse, to the detriment of the principle of equal justice for all. Of Trump’s 234 judicial appointments, 178 went to men and 56 went to women, only eight of whom came from minority groups. Overall, white judges outnumbered minority ones 199 to 35.

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Of greatest significance, of course, were his three SCOTUS appointments: Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett. They joined Chief Justice John Roberts and Associate Justices Clarence Thomas and Samuel Alito to give the conservatives a 6-to-3 supermajority. A silver lining of sorts is that Roberts and Coney Barrett have shown a willingness to break ranks when they deem it warranted by the case at hand.

The overall result of Trump’s first-term appointments is the negative effect they have had on a number of major social justice issues, especially including reproductive rights (with the Dobbs decision overturning Roe v. Wade looming largest), as well as gay and transgender rights, voting rights, and environmental concerns.

To accomplish his goal, Trump sought the active aid of the conservative/libertarian-oriented Federalist Society and its then executive vice president (and current co-chairman) Leonard Anthony Leo. Leo does not hail from far-right Southern or Midwest enclaves. He was born in Newport, N.Y., and raised mostly in Monroe Township, N.J. Trump’s SCOTUS picks actually were Leo’s picks. (According to the Hill, Leo had previously played “an outsized role” in the Roberts, Thomas, and Alito nominations.) Leo is a vocal activist and puts his — and other people’s — money where his mouth is in the efforts to Christianize America, and in support of his unapologetically far right conservative political agenda. He recently launched a $1 billion effort this Trump-time around to “crush liberal dominance where it’s most insidious,” as he told the Financial Times in September, by which he means “the areas of news and entertainment, where leftwing extremism is most evident,” and to place judges on the federal bench who will rule against diversity, equity, and inclusion policies, climate change regulations, and other social concerns.

Judges of every stripe, and especially justices of the U.S. Supreme Court, are supposed to be chosen based on their judicial knowledge and temperament, and not on their political beliefs. They must be willing to set aside their own political beliefs when the arguments warrant it. Trump himself said as much when he announced his nomination of then U.S. Court of Appeals Judge Brett Kavanaugh to replace Associate Justice Anthony M. Kennedy. “What matters is not a judge’s political views,” Trump said then, “but whether they [sic] can set aside those views to do what the law and the Constitution require.”

Trump, of course, did not mean what he said, as his first-term judicial appointments loudly testify, and he surely knew Kavanaugh would always put politics ahead of “what the law and the Constitution require.”

Presidents usually choose people as judges — and justices — based on partisan considerations, and not on whether they would set their politics aside to do what is just, right, and in the best interests of the nation as a whole. In that sense, Trump is no different than other presidents.

Where he does differ — and radically so — is in choosing judges and justices favored by Leo and the Federalist Society, and others on the far right. These choices are people who firmly believe in what they argue is a textualist and/or originalist interpretation of the U.S. Constitution, two of the most dangerous legal theories.

Textualism focuses on the plain meaning of a text as its actual words were understood at the time they were written. There is no allowance for nuance, and no regard may be given to whether current circumstances require a different understanding of that text.

Originalists base their rulings not on a text’s words, but what went on inside the heads of those who wrote those words. They determine this by examining such historical sources as the Federalist Papers and records of the debates at the Constitutional Convention. It does not matter to originalists, for example, whether the framers would have written the Second Amendment the way they did if they had known about bump stocks or that a fully automatic AR-15 could fire up to 900 rounds per minute.

Jewish law requires a whole different approach. To begin with, according to Maimonides (the Rambam), judges must be both “wise” and “understanding,” must be “experts” in the law, and also well versed in other areas of knowledge, “so that they may be competent to deal with cases requiring such knowledge….” (See his Mishneh Torah, Judges, 2:1.)

Also, a judge must act with “perfect impartiality to both litigants” because Leviticus 19:15 demands that impartiality when it tells us that “in righteousness shall you judge your neighbor.” (See MT Judges, Chapter 21:1.)

“A judge who does not render an absolutely true judgment,” the Rambam added, “causes the divine presence to depart from Israel.” (See MT Judges 23:8-9.)

That statement raises the question of what halachah considers “an absolutely true judgment.” In the Rambam’s view, it means a judgment that does not favor any extreme. All Jews, and judges particularly, “are commanded to walk in these intermediate paths — and they are good and straight paths — as [Deuteronomy 28:9] states, ‘and you shall walk in God’s ways….’ Just as God is called ‘gracious,’ so you must be gracious; just as God is called ‘merciful,’ so you must be merciful; just as God is called ‘holy,’ so you must be holy…. A person is obligated to accustom himself to these paths and to resemble God to the extent of his ability….’”

The Talmud, and the responsa literature that followed, significantly added to this definition of “an absolutely true judgment,” and they did so in a way that disqualifies any judge or justice who chooses Leo’s and the Federalist Society’s way over God’s way. That is because judges in Judaism must be willing to go “lifnim mi-shurat ha-din,” which literally means “inside the line of justice,” but actually means going beyond the letter of the law in order to do that which is right and just.

Thus, we are taught, “Rabbi Yochanan says: ‘Jerusalem was destroyed only for the fact that they [strictly] adjudicated cases on the basis of Torah law…and did not go lifnim mi-shurat ha-din.” (See the Babylonian Talmud tractate Bava Metzia 30b.) A similar reason was given for why Sodom was destroyed.

The 16th-century halachist Rabbi Joel Sirkis (the Bach) would never have approved of either textualists or originalists. Noting that the law requires a judge to issue “a true judgment to its very truth” [din emet la-amito], the Bach offered this explanation:

“[One] should judge in accordance with the particular place and time, so that the judgment is in full conformity with the truth, rather than always inflexibly apply the law precisely as it is set forth in the Torah. Sometimes, a judge’s decision must go lifnim mi-shurat ha-din and reflect what is called for by the particular time and circumstances. When the judge does not do this, then even if his judgment is correct, it is not ‘a true judgment to its very truth.’

“This is what the Sages meant by saying that ‘Jerusalem was destroyed only for the fact that they [strictly] adjudicated cases on the basis of Torah law…and did not go lifnim mi-shurat ha-din.” (See Drishah to Tur, Choshen Mishpat 1:2; quoted in Menachem Elon’s Jewish Law, vol. 1, page 159.)

Summarizing Sirkis, Elon adds “that sometimes a judge is obligated to decide lifnim mi-shurat ha-din, in accordance with the felt necessities of the time and the exigencies of the case; if he does not do so, his decision may be ‘true,’ but it does not reflect the essential truth of the law. When, in a particular case, a judge decides contrary to his view of what strict law requires, he is not deviating from the law but declaring it truly: he does not change left into right, but his decision is ‘right.’”

In other words, textualists and originalists are unfit to serve as judges and justices, yet they doubtless will be the ones whom Trump will appoint, and this country of ours will be the worst for it.

Shammai Engelmayer is a rabbi-emeritus of Congregation Beth Israel of the Palisades and an adult education teacher in Bergen County. He is the author of eight books and the winner of 10 awards for his commentaries. His website is www.shammai.org.