Opinion: For Empathy’s Sake, America Needs a Black Woman on the Supreme Court – Times of San Diego

The U.S. Supreme Court building in Washington. Image via supremecourt.gov

The debate over the next Supreme Court nomination is heating up. During the presidential campaign, candidate Joe Biden promised that, if elected, the first chance he got he would nominate a Black woman to the Supreme Court, and President Biden reaffirmed that commitment when Justice Stephen Breyer announced his resignation.

Predictably, Republicans are gearing up to make it as difficult as possible for Bidens nominee to be approved by the Senate (as Democrats would do if the shoe were on the other foot). GOP leaders have skewered the President for, in their view, making race and gender the primary qualifications hes looking for (never mind that during his campaign for president, Ronald Reagan promised to appoint the first woman to the Court, rather than the best judicial mind possible.)

Race and gender both do and dont matter. Up until the appointment of Thurgood Marshall in 1967, every Supreme Court Justice was of the same race and gender. Most Americans agree that diversifying the Court is a good thing. But whoever Bidens nominee is, she and the nation should have full confidence that she was outstandingly qualified and also a Black woman. Luckily, as weve learned in the several days, there is no shortage of people who fit that bill.

It is ridiculous to think that gender and race are the most important criteria for a judge. President Biden himself emphasized this at the official announcement of Breyers retirement, when he said first that he was going to pick the person best qualified for the job, and second that it would be a Black woman.

The debate that has begun inevitably raises the question: what constitutes the criteria for a person to assume a place on the most important court in America?

Over a thousand years ago, the rabbis of the Talmudic period asked the same question about the highest court in the Jewish tradition, the Sanhedrin. Their answer will surprise you, because the rabbis have a fascinating insight into the type of mind that makes the best judge.

The Talmud, a twenty-volume collection of rabbinic argumentation on all aspects of Jewish law, mostly in Aramaic (the language Jesus spoke), is not a code of law. There was no entity to officially enact it as a code. While the Romans were canonizing their law, the rabbis were doing the opposite. The Talmud is the canonization of disagreements. Why?

Jews were expected to study the Talmud and follow Jewish law. But when you open the Talmud, you dont find the law; you find an argument! If you want to find the law, what youre supposed to do or obey, dont open the Talmud.

There was, of course, a prevailing side in the Talmudic arguments, and thats what the Jew was supposed to observe. But they were also expected to study the opinions of the losing side. They were expected to study views that they were NOT to follow or live by.

You live according to the ruling of one side but you study and understand the positions of the other side. You are expected to listen to voices youre not supposed to follow or obey! You read things by people you disagree with. You live by one ideology or practice, but you study others that you might find quite objectionable.

With that in mind, the Babylonian Talmud, in the section on the Sanhedrin, discusses the qualifications of a judge (rabbi) for that high court. It says, They place on the Sanhedrin only one who knows how to render a carcass of a creeping animal pure (kosher) by the law of the Torah.

In the Torah, the first five books of the Bible, a carcass of a creeping animal is listed as the most impure, or unkosher, thing imaginable. A person becomes impure not only if they eat it; but even if they touch it! And yet, when the Talmud asks who is qualified to serve on the Sanhedrin, it is one who can make a convincing argument based on the Torah! that such an animal is kosher!

What kind of mind does it take to find reasons why something they know is unkosher is kosher? Such a mind would have to be quite sophisticated to muster convincing arguments to declare an unkosher animal kosher. But it would also require a flexible mind; one not subservient to one point of view or ideology.

It would require an open, curious, and empathetic person who was motivated to learn not only why they are right; but why they might be wrong. To be worthy to serve on the Sanhedrin, the rabbis sought a mind that was able to create a convincing argument why something was true that they knew to be not only untrue, but even quite objectionable.

The usual response to opinions and world views that we disagree with, or even detest, is to become judgmental and resentful of those putting forth such ideas. But the rabbinic mind, honed by the extraordinarily complex argumentation that unfolds on every page of the Talmud, was supposed to be able to replace judgement with curiosity. Instead of judging those with whom you disagree, you wonder: why do they hold that view?

You are judgmental when you ask why that person is wrong. You are curious when you ask why they are right. The goal of an argument is not to win; but to learn something.

With this way of arguing, the rabbis ask us to break out of the confines of our world view or ideology and to see the world through the eyes and experiences of others.

Empathy is something catastrophically missing from much of the discourse in our country. Ideology and partisanship smother our political conversations and, increasingly, the deliberations of the Supreme Court. This dearth of empathy was made crushingly clear during the discussion in the Supreme Court about the Texas law practically nullifying the right to abortion.

Justice Amy Coney Barrett, the sole woman in the conservative flank of the court, demonstrated a profound lack of empathy for so many women when she persisted in asking about how easy it is for women to leave unwanted babies with authorities or put them up for adoption.

Empathy is surely not the sole criterion for a judge, but it is critical to the character of a great judge. That is why the voice and experience of a Black woman, never before on the Supreme Court, is so important.

Michael Berk is Rabbi Emeritus ofCongregation Beth Israel, the largest Jewish congregation in San Diego and the oldest in Southern California.

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Opinion: For Empathy's Sake, America Needs a Black Woman on the Supreme Court - Times of San Diego