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Agree to Disagree

Surely our obligation of hishtadlus demands that we daven and work for a stable, peaceful, tolerant, functional America


When I recently published a column about then-Judge, now Supreme Court Justice Jackson, I knew there would likely be those who would take strenuous issue with my view, and that it might have been worthwhile to elaborate more. I’ll now take the opportunity to indeed expand on the central thesis underlying both that earlier column, as well as much of what I’ve written about our contemporary politics: That it’s essential for the welfare of America — and thus of the Jews for whom it has been an unparalleled safe haven — for its political factions to eschew the scorched-earth tactics and mutual demonization of recent years and instead return to disagreeing strenuously but amicably.

Since I want to use this space to clarify this main point, I won’t dwell on the specific charges leveled at this particular judicial candidate. In truth, however, some of those side points have their own relevance to us Jews. Take, for example, the apparently terrible sin Judge Jackson committed in having served, between stints as a corporate lawyer, as a public defender, i.e., a government-appointed defense attorney for the indigent.

Put aside the fact that, as conservative commentator Charles Cooke wrote in National Review, “There is nothing wrong with people who are willing to become solicitor generals and defend laws they dislike, or with people willing to become corporate lawyers and defend companies they disdain, or with people who are willing to become public defenders and defend clients they suspect are guilty.” Put aside, too, that the accuser, Senator Ted Cruz, himself was once solicitor general of Texas, where he prosecuted people based on laws he acknowledged were nonsensical. So he knows full well that public defenders are in the best American tradition; he’s not a hypocrite, but a gaslighter.

But more to the point, we Jews know well the evils of overzealous, or worse, patently unjust, prosecutions. Over the years, there have been many instances in which our community railed against the injustices of the American legal system, and now we’re to believe that it’s immoral to be assigned to represent those who may themselves be victims of such travesties? Or is it that the people who need public defenders tend to be poor, inner-city people, while Orthodox defendants facing persecuting prosecutors can count on their community to raise money to hire the best defense attorneys for them?

(And speaking of defense attorneys, there are many who take on the most morally odious clients, yet unlike public defenders they do so willingly, for very large fees. But somehow they are admired, not scorned, even within our own community. So let’s be fair and consistent.)

To return to my earlier column, its point was that there was a time not so long ago when overwhelming majorities in both parties voted to confirm the judicial nominees of presidents of either party so long as they exhibited judicial competence, character, and temperament. This included scores of senators who were rock-ribbed conservatives — far more so than many of today’s right-wing senators, who’ve made a farce of one conservative principle after another.

They did so for a simple reason: They understood that politics isn’t beanbag, as the saying goes, but neither can it be all-out war. We live all together in a wonderful country, and if it is to survive, and certainly to thrive, there must be an understanding that politicians can play rough, but there must be elemental fairness. The moment we begin treating opposing parties as mortal enemies who seek our destruction, in order to thereby justify engaging in the most egregious behavior toward them, we blow up the implicit American compact and tear at the very fabric of what has made this country a historically anomalous success.

The approach of taking the entire picture into account, to consider not just specific issues, but their larger context, and to have the foresight to realize the longer-term implications of things, is one that I observed in the gedolei Torah with whom I have had the undeserved privilege to have some personal connection. I make many mistakes, and perhaps I am mistaken about the topic at hand. But what I can say is that I make a good-faith effort to apply the teachings and implicit attitudes of the gedolei Torah even to situations they never addressed directly.

THIS CONCEPT OF LOOKING AT THE BIGGER PICTURE, so vital for our survival as a country, is something I was thinking about last week when former Utah senator Orrin Hatch died at age 88, following seven terms in office, which made him the longest-serving Republican senator ever. The New York Times obituary notes

“As a Senate freshman, Mr. Hatch found mentors among its deepest conservatives…. A conservative rock… [he] opposed Mr. Carter’s social welfare programs, favoring Reagan and Bush tax and spending cuts and fighting Clinton health care ideas. After the Sept. 11 terrorist attacks, he helped draft the USA Patriot Act and supported Mr. Bush’s retributive wars in Afghanistan and Iraq. He also opposed Mr. Obama’s Affordable Care Act….”

At the same time, the Times continues, “Mr. Hatch had a longstanding and genuine friendship with Senator Edward M. Kennedy of Massachusetts, the quintessential liberal Democrat. They spoke often and shared legislative accomplishments, including programs to assist AIDS patients, protect the disabled from discrimination and provide health insurance for the working poor.”

Hatch was an upstanding Mormon family man and Kennedy was an ultra-liberal lecher; their worldviews couldn’t have been further apart, but they fought when they needed to and cooperated when they could.

Moreover, Hatch served as Judiciary Committee chairman, in which role he helped build a conservative Supreme Court, shepherding nominees like Scalia, Thomas, and Alito onto the bench. But he also voted for Ginsburg and Breyer.

Why? Because he loved America and wanted it to succeed. He understood that if you deny an opposing president his basic prerogative to appoint justices that share his philosophy, you are guaranteeing that his party will retaliate in kind when it gains power, perhaps even upping the ante. You are ensuring a complete breakdown of the political process through which anything necessary gets done.

In addition, turning the court into yet another front in a fight-to-the-death undermines the legitimacy of the very court you believe to be so important for advancing your causes. It is to destroy what you claim to want to protect.

On a court with an existing 6 to 3 conservative majority, Joe Biden nominated a qualified judge to fill Justice Breyer’s seat and a Democratic Senate majority had the votes to confirm. To attempt to deny him that right, or even worse, to refuse to even allow Judge Jackson a hearing, as Lindsey Graham said would have happened had Republicans controlled the Senate — and as Republicans did to Merrick Garland in 2016 — is to add further fuel to the hyper-partisan powder keg threatening to blow up America, the medinah shel chesed whose freedoms and protections Jews have enjoyed for so long, and without which, as Chazal teach, ish es rei’eihu chayim bila’o — man will come to devour his fellow.

It is to spark a war over the court that will result in both sides of the political spectrum rejecting its authority over them, thereby rendering its conservative majority meaningless. It is to open a door to legal anarchy, just as using wild conspiracy fantasies to prevent the peaceful transfer of power and undermine trust in the electoral process is opening the door to political anarchy.

The Ribbono shel Olam will decide America’s fate, and that of its Jewish community. But surely our obligation of hishtadlus demands that we daven and work for shlomah shel malchus, for a stable, peaceful, tolerant, functional America.


(Originally featured in Mishpacha, Issue 908. Eytan Kobre may be contacted directly at kobre@mishpacha.com)

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