Thursday, 22 June 2017

Jewish Supreme Court Justices

From RRW

Guest Blogger: Mitchell First


                Book Review: Jewish Justices of the Supreme Court by David Dalin (2017)

             I just came across this very interesting book about the eight Jewish Supreme Court justices: Louis Brandeis, Benjamin Cardozo, Felix Frankfurter, Arthur Goldberg, Abe Fortas, Ruth Ginsberg, Stephen Breyer and Elena Kagan.
              A main theme of the book is how the country has changed over the years. It was a big issue in 1916 when Woodrow Wilson first wanted to appoint a Jewish Supreme Court Justice (Brandeis). Eventually, there became an informal rule that there should be one “Jewish seat” on the court.  But now there are three Jews on the court and their religion is barely an issue.
             I will limit my discussions here to the lives of Brandeis and Goldberg.
             Brandeis grew up in Kentucky, and had little to do with Judaism in his youth. His parents did not belong to a synagogue or observe any Jewish holidays. (Interestingly, Brandeis’ ancestors were leaders in the heretical Jacob Frank movement!) Brandeis went to Harvard Law School and became a successful lawyer in Boston. In 1912, he met Woodrow Wilson and ended up becoming a close advisor to him on his Presidential campaign that year. When an opening on the court arose in 1916, Wilson appointed Brandeis.
              Brandeis first got reconnected to Judaism in 1910 when he was involved in mediating a  strike of New York City garment workers. This brought him into contact with many Jewish immigrants from Eastern Europe. He was deeply impressed with their values and commitment to social justice, and felt a kinship towards them.
              In his youth in Kentucky, Brandeis had an uncle Lewis Dembitz, who was Orthodox. Although Dembitz heavily influenced Brandeis in many ways, the influence did not extend to the sphere of religion. But in 1912, a crucial event took place. Brandeis met Jacob de Haas, a leading American Zionist who had worked with Herzl. De Haas told Brandeis that Dembitz had been involved with Zionism. This piqued Brandeis’ interest and De Haas taught an eager Brandeis all about Herzl and early Zionism. Brandeis also chanced to meet the noted Zionist activist, Aaron Aaronsohn, who was doing novel agricultural work in Palestine. Brandeis was greatly impressed by him as well.
              By 1914, Brandeis had assumed the leadership position in the American Zionist movement. He held this position for seven years, and helped win Wilson’s support for the Balfour Declaration of 1917. Brandeis remained involved in the Zionist movement until his death in 1941.
              One of Brandeis’ main accomplishments was his ability to market Zionism to American Jews. Jews were afraid that being Zionist would subject them to the accusation of dual loyalty. But Brandeis articulated the position that by being a Zionist, a Jew would be a better American.
                 Arthur Goldberg was on the court for less than three years. But his story is very interesting.  He grew up in Chicago and became a labor lawyer. He helped engineer the historic merger of the AFL with the CIO in 1955.  In 1961, JFK appointed him Secretary of Labor. Then, in 1962, JFK appointed him to the court. He was appointed to fill the “Jewish seat,” as Frankfurter had retired.  Kennedy was reluctant to lose him as a Cabinet member and hoped he would turn down the offer. But Goldberg had dreamed of serving on the Supreme Court since law school, so he quickly accepted.
                  But in 1965, when the US ambassador to the UN died, LBJ wanted Goldberg to take his place. (LBJ’s motivation was to open up a spot on the court for his longtime friend and advisor Abe Fortas.) But being a Supreme Court justice is a lifetime position. It is not usually given up. Nevertheless, LBJ put enough pressure on Goldberg to get him to agree to leave the court and accept the ambassadorship.  As US ambassador to the UN, Goldberg ended up being  involved in the drafting of one of the most important document of the 20th century: UN Resolution 242, passed Nov. 22 1967, a few months after the June 1967 Six-Day war. This is the document with the famous omission of the word “the”: Israel is required to withdraw from “territories” but not from “the territories.” Goldberg is always quoted on this subject for his explanation that the omission of “the” in the English version was deliberate, as it was not imagined that Israel would withdraw from all the territories.
                   But what happened to Goldberg afterwards? In 1968 he resigned the US ambassadorship position. In 1970, he ran for governor of NY against Nelson Rockefeller who was seeking his fourth term, but Goldberg lost badly. He returned to Washington to practice law. Although he had many accomplishments thereafter, he never achieved public positions as high as he had before. (One of his clients in his legal practice was the baseball player Curt Flood who brought a famous case antitrust case against Major League Baseball.)
                 Even allowing for LBJ’s talents of persuasion, historians remain perplexed by Goldberg’s willingness to leave the court for a short term ambassadorship post. One theory is that Goldberg very much wanted the war in Vietnam to end and thought that in the new position, he would have more influence in that regard. Others suggest that he believed that Johnson would now be in his debt and would feel obligated to reappoint him to the court later. Others suggest that Goldberg saw the UN position as a stepping stone to a future vice presidential position.  In any event, there is little question that Goldberg later regretted his resignation from the court.
               A few more biographical tidbits.  He was a Zionist from his youth and attended Chicago’s Zionist-oriented Theodore Herzl Elementary School. He later befriended Golda Meir, and one time asked one of his law clerks going on a trip to Israel to sneak some Chesterfield cigarettes past her security guards her so that she could enjoy them. Her doctors had prohibited them.
             Although he was not kosher, he was sensitive to those who were. When he invited his law clerk Alan Dershowitz (who was Orthodox at that time) to his seder, Goldberg made sure that the entire dinner was provided by a kosher caterer.
              One time, while he was at his mother’s house, the phone rang for him and his mother answered “who’s this?” The caller replied: “This is the President.  His mother replied: “Nu, president from which shul?”
             Finally, a great story is the reaction of his mother-in-law to his appointment to the court. She was asked: “Wasn’t it wonderful about Arthur?”  She replied:  “Wonderful? Yes, but who cares about Arthur? Everybody knows something like this could happen to him, but that it should happen to me, that’s more wonderful. That I’m the mother-in law of a Supreme Court Justice.”
            I mentioned  Supreme Court justice Fortas briefly above. He enjoyed a lucrative career as a lawyer in Washington and was a longtime friend and advisor to LBJ. A great story is how LBJ got him on the court in 1965, despite Fortas’ reluctance because the position would cut his salary by over $150,000.  LBJ wanted him on the court because he was afraid that some of his legislation might be held unconstitutional. But Fortas and his wife continually refused LBJ’s pressuring.
            Finally, LBJ used a trick to get what he wanted. He invited Fortas to a press conference that he was holding on the Vietnam War and halfway down the hall told Fortas that at this press conference, he was also going to announce Fortas’ appointment. He also added: “I am sending all these boys to Vietnam. They’re giving their life to their country and you can do no less.” By this method, he forced Fortas to accept the Supreme Court appointment. Fortas’ wife was furious, as they had been leading an expensive lifestyle in Washington. The story of this Jewish Supreme Court Justice does not end well. In 1969, Fortas had to resign due to ethical questions about money he was earning on the side.
                Finally, the book includes the famous story of Justice Kagan’s bat mitzvah.  Her family attended Lincoln Square Synagogue and the twelve year old highly confident Hebrew school student told Rabbi Riskin that she wanted to celebrate her bat mitzvah there. At this time, 1972, the bat mitzvah ritual was not typically done in Orthodox shuls, and Kagan wanted to read from the Torah like the boys did. A compromise was reached, in which the bat mitzvah would take place on a Friday night and she would read from the book of Ruth. So she had the first formal bat mitzvah at Lincoln Square synagogue. Asked about it years later, Rabbi Riskin said “We crafted a lovely service, but I don’t think I satisfied her completely.”
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Mitchell First is a personal injury attorney and Jewish history scholar. His most recent book is: Esther Unmasked: Solving Eleven Mysteries of the Jewish Holidays and Liturgy. He can be reached at MFirstAtty@aol.com.
 

Monday, 19 June 2017

Meaning of the word Hefker

From RRW

Guest Blogger: Mitchell First


                       A Column About Nothing:  What is the Root of the Word Hefker?

                The title of this column alludes to a famous TV show. (For the handful of you who don’t understand it, it is not worth explaining.) In any event, my intent here is to write a serious column about the root of the word “hefker” (=ownerless property).  I got interested in this topic when Mollie Fisch pointed out to me that in the edition of Mishnah Peah that she had been using, at Mishnah 6:1, the word hefker was spelled two different ways: once as HBKR and then as HFKR. Why would there be such an inconsistency, she asked, and what was the root of this word?
                  Since the prevalent term today is HFKR, our first thought should be that the root is PKR. But there is no root PKR in Biblical Hebrew.
                    The first source I typically go to for questions like this is Ernest Klein, A Comprehensive Etymological Dictionary of the Hebrew Language for Readers of English. This source is very useful because it covers words from all periods of Jewish history, not just words from Tanakh. This source had an entry for PKR and it related to HFKR to this root in two possible ways. First it suggested that the root PKR was a metathesis from the well-known root PRK, which meant things like “break” and “throw off the yoke.” Then it suggested that the root PKR was derived from the philosophy of the ancient Greek thinker Epicurus (3rd century BCE).   Neither of these ideas sounded like good explanations for the word HFKR, so I began to research further. (But the Epicurus explanation is almost certainly the explanation for the Mishnaic term apikoros.)
                    My research led me to the Ramban on Lev. 19:20. Here the Ramban states that the Mishnah consistently spells the word with a bet, HBKR, and that the spelling HFKR is a later variant that arose in Babylonia.
                       Of course, today we don’t have Mishnah manuscripts from the time of R. Judah Ha-Nasi (200 C.E.) or anything close to that. The earliest Mishnah manuscript extant today is the “Kaufmann“ manuscript. It dates to the 10th or 11h century. But yes, it does spell the word with a bet. From everything I have read, I suspect that the Ramban is correct that this was the original Hebrew spelling in the Mishnah. (Over time, the HFKR spelling in the Babylonian Talmud influenced the copyists and printers of the Mishnah and led to some HFKR spellings in Mishnah manuscripts and printed editions.)
                    It is still possible that HBKR has a relation to Epicurus or apikoros (one who abandons his religion), but the HBKR spelling opens up new possibilities.  For example we can connect HBKR to the fact that bakar often graze on abandoned, ownerless land.  But scholars today usually take a different approach to understanding the origin of the word HBKR with its bet spelling, as I will now explain.
                   A verse in Leviticus 19:20 refers to a case of a man who has relations with a female slave who is already designated in some way (=necherefet) to another man. The term “necherefet” is very unclear and many facts of the case are unclear as well. In any event, in discussing the conclusion, the verse uses the phrase: bikoret tihiyeh (=it shall be a bikoret).  Rashi and many others have understood the term has implying an investigation. But when you see the phrase in context, it seems to be more of a conclusion or an explanation, and not just a call for an investigation. Therefore, Ramban took the position that the meaning here was related to the meaning of HBKR and that the meaning was that the female slave was to be treated as if she was free of marital commitments (so that the usual death penalty for adultery would not apply).      
          Today scholars continue to adopt the general approach of the Ramban and view the meaning of HBKR as tied to the meaning of “bikoret tihiyeh” in the above verse, even though they may disagree with the Ramban on the details of the interpretation. For example, a detailed article on this root was published by Shamma Friedman in volume 12 of Sidra (1996). Based on Akkadian, he believes that the meaning of the root BKR is freedom (shichrur), and movement from one reshut to another, and he understands both “bikoret tihiyeh” (freedom from a death punishment) and the root HBKR in this light. 
        (Note that the Talmud, at Keritot 11a, understood “bikoret tihiyeh” as implying a punishment of lashes.  But the two reasons offered there to justify this interpretation are not plain sense ones.)
         A general lesson we see from all of the above is that when you see an obvious problem as Mollie did, two different spellings of the same word found very near one another, it cries out for investigation (bikoret!) And then you can learn much from the answer and get a completely new perspective.  Something similar happened to me many years ago.  I was bothered by a severe inconsistency within the book of Eikhah. In the acrostics in chapters 2, 3 and 4, the pe verse preceded the ayin verse (an unusual  phenomenon in itself). But there was a further problem that the acrostic in the first book was in the regular order of ayin preceding pe. I suspected that Eikhah was too small a book to have two different acrostic patterns. After many sleepless nights, I finally did the research and discovered that in the Dead Sea text of Eikhah chapter one, the pe verse preceded the ayin verse. Now at least there was consistency within the book of Eikhah (assuming the Dead Sea text reflected the original text). This discovery, along with some other archaeological discoveries made in the 1970’s, made me realize that pe preceding ayin was in fact the original order in ancient Israel. I ended up publishing an article in Biblical Archaeology Review in 2012 on this topic.                                                                                 
        Does our different spelling of hefker have any consequences for halakha? Today most of us include the term “hefker” in our bitul of chametz. (This was not always the case. Whether the bitul of chametz is connected to a hefker process is a major dispute. See M. Kasher, Haggadah Shelemah, p. 54. )  Since we are typically more strict when it comes to Pesach observance, perhaps someone will eventually suggest that we recite both the terms HFKR and HBKR!
      PS Anyone interested further in the meaning of HBKR, can go to the site balashon.com and find his discussion of “apikoros and hefker” (Mar. 2 2016). There, the article by Friedman can be accessed along with some other sources. Anyone interested in Hebrew words in general should subscribe to the balashon.com site.
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Mitchell First is a personal attorney and Jewish history scholar. He can be reached at MFirstAtty@aol.com. His latest book is: Esther Unmasked: Solving Eleven Mysteries of the Jewish Holidays and Liturgy. You can read more about the pe ayin order in ancient Israel there.  He hopes you learned something from this column about nothing.