Empathy and Jewish Jurisprudence

Sermon delivered September 11, 2009, by Rabbi Barry H. D. Block

When I was a senior in college, my friends and I would often end the night, crashed on the sofas, watching re-runs of Star Trek. I’m talking about the original series, the original cast, William Shatner and Leonard Nimoy, Captain Kirk and Mr. Spock. Though the story line was always different, some things never changed. The guys in the red shirts always died. At the very last moment, Scotty always managed to fix a technical disaster imperiling the Enterprise. And the human touch was always required.

Yes, the men and women of Star Trek relied upon rational thought, with Spock’s reason highly valued. And yet, the world without love, without caring, without feeling, was always rejected. Even the most solid judgment needed to be tempered with the wisdom of real human experience.

This summer, the American people witnessed a real life drama: The same wisdom extolled in Star Trek was put on trial in the United States Senate.

So, here’s what happened: President Obama nominated Sonia Sotomayor to serve on the United States Supreme Court. In discussing what he wanted in a Justice, President Obama spoke of “empathy.” Empathy is different from sympathy, though the two words sound alike. For example, any of us can be sympathetic when a person is diagnosed with cancer. However, only the person who has been through that wrenching ordeal can empathize. True empathy requires having walked in the other’s shoes previously.

The matter was exacerbated by words once uttered, years ago, by Justice Sotomayor herself. She had said something to the effect that she hoped that “a wise Latina” would make a better judicial decision than a white male. Presumably, she meant that, because of her ethnicity and upbringing, she had experienced life’s challenges in ways that might make her more empathetic toward individuals in difficult situations. In other words, neither the President nor Justice Sotomayor believes that Mr. Spock would make a good Judge. Wisdom is gained from real human life.

Judge Sotomayor was confirmed, and she is now Justice Sotomayor. Empathy, though, was found guilty. Sotomayor defended her judicial record. She did not concentrate on the concept that justice would be served by a judge with particular real-life experiences.

Many Americans were outraged. Part of the issue, of course, is that the Judge’s statement may be understood to suggest that a person’s ethnicity is a qualification. That idea is racist, pure and simple. It’s also probably not what she meant and certainly isn’t suggested by the President’s own stated desire for an empathetic Justice. Nevertheless, even among supporters of the President and Justice Sotomayor, empathy came to be treated as the opposite of justice.

Next Friday night, we will stand before the Holy Ark and beseech God as Avinu Malkeinu. We will ask forgiveness from God in two different roles. When we have sinned, we want God to be a heavenly parent, who may punish us for our own good, but who is eager to take us back in love. When we have sinned, we need God to be our sovereign ruler, who keeps us and the entire world in line.

We do not say some prayers to Avinu, that loving God-as-parent-figure, and others to Malkeinu, that strict God-as-ruler. Instead, we say the two words in one breath, time and again: Avinu Malkeinu, two kinds of judges who are one and the same. One Judge. One God.

In Torah, God has much to say about how justice should be practiced. Much of our traditional teaching would seem to bolster the views of the Senators who derided the role of empathy in justice, whether they supported Justice Sotomayor or not.

A few weeks ago, we read, Tzedek Tzedek tirdof, “Justice, justice shall you pursue.” The word “justice” is repeated, not only for emphasis. We have been taught that justice must be not only the end result, but the method by which we attain it. One may conclude that using any other measure, such as empathy, is prohibited, even if the result is just.

That portion goes on to emphasize that we may not favor the mighty or the poor in their disputes. We can well imagine why one might favor the rich and the powerful: Making a decision in their favor could well benefit the judge. But why would anybody favor the poor? God knows, and the Torah teaches, that some people will favor the underdog, right or wrong. Favoring the disadvantaged party, because she or he lacks resources, is unjust. A judge who is more disposed toward the needy, as a result of having been needy herself, would not be a righteous judge.

As with most matters, though, the Torah has more to say on the subject of justice. While we would like to think that the teachings of our sacred texts are entirely consistent, I have often been known to twist a common phrase, saying that “consistency is the hobgoblin of modern minds.” The Torah is a great and complex book. As we will read on Yom Kippur, the Torah does not remain in heaven, but is here in our hands, on Earth. We have a mighty job, studying and contemplating various teachings and moving toward the intended understanding.

Months after the Children of Israel escape Egyptian bondage, they are encamped around Mt. Sinai. Moses is not only the leader, he is the judge. In fact, when his father-in-law, Jethro, comes to meet him, Jethro finds that Moses is the only judge for more than a million Israelites. Jethro sees that Moses is exhausted by the process. He also notices that the people are waiting for Moses all day long. It’s worse than a pediatrician’s office on the Tuesday morning after a holiday weekend. Jethro counsels empathy: Think about how these people must feel! You’re not only wearing yourself out, you’re exhausting them, too. Jethro cajoles Moses into appointing rafts of judges, with levels of appeals. Moses will only resolve the small number of disputes that perpetually perplex other judges and magistrates.

The implications are clear: First, the system of justice is organized, at least in part, on the basis of empathy for the people. Second, the fact that Moses will have to resolve disputes between rulings teaches us something we know well: Different judges will issue different rulings.

But how can that be? If justice is blind, if there is but one set of laws, and if judges are to rule without respect for persons, shouldn’t different judges all render the same decisions? Does diversity in rulings suggest that some judges are incompetent or corrupt? Or might there be another explanation?

Remember the story of Sodom and Gomorrah? God condemns two entire cities to utter destruction, to the death of all the citizens. Their crime is rape, horrific sexual violence in which all the city’s inhabitants are complicit. After God has made an initial decision about the punishment, the Holy One considers Abraham. Abraham is God’s partner, and God wants a consultation. Abraham is different from God. Being a human, with all of our frailties, Abraham is more empathetic with the sinners than God is. But the sin is horrific. God ultimately does destroy the cities, despite Abraham’s pleas. And yet, Abraham is not criticized. Justice prevails, but empathy is neither ignored nor derided.

Captain Kirk and Mr. Spock understood: the right way is found through rational though tempered by the human touch. We are fortunate that our nations’ leaders are men and women, southerners and folks from the Midwest, New Englanders and westerners, and people of various religions and ethnicities. While being of one particular ethnic group ought not to privilege anybody to office, diverse leadership provides our nation with wisdom emanating from a variety of experiences. Just as a “wise Latina woman” has grown from her experiences, so are the wealthier-than-average white men who make up the majority in Congress and on the Court informed by the lives they have led. We are blessed, one might say, with a surplus of empathy, acknowledged or otherwise.

As our High Holy Days approach, let us give thanks for our spiritual blessings. We are grateful that Avinu and Malkeinu are not two separate entities, but one God and the same. In the weeks ahead, we will face judgment, and we will be greeted by empathy. Thank God.