I HAVE OFTEN CONSIDERED THIS SECTION OF THE SERVICE TO BE PART OF A YEAR-LONG CLASS IN TORAH INTERPRETATION. WITH THIS IN MIND, AND AS YOUR VISITING PROFESSOR THIS MORNING, I HAVE GOOD NEW FOR YOU, ESPECIALLY FOR THOSE LIKE ME WHO HAVE MISSED MANY CLASSES- TODAY WILL BE A REVIEW SESSION. IN THIS PARSHAH MOSES STOPS TO TAKE STOCK OF WHERE THE ISRAELITES HAVE BEEN BEFORE THEY, WITHOUT HIM, ARE TO ENTER THE LAND OF CANAAN. AS A RESULT, THERE WILL NOT BE ANY NEW MATERIAL- OR WILL THERE?
ONE INTERESTING NOTE IS WHAT HE DOESN’T DISCUSS- THE EXODUS FROM EGYPT. BUT THAT IS NOT A PROBLEM, SINCE I’M SURE THAT YOU ALL HAVE SEEN THE TEN COMMANDMENTS—AT LEAST ONCE. BUT AS THE NOTED SCHOLAR RABBI JOSEPH TELUSHKIN OBSERVES, WHAT IS SIGNIFICANT IS THE TOPIC THAT MOSES CHOOSES TO DISCUSS FIRST. AS HE NOTES: “IT IS SURPRISING THAT AT SO DRAMATIC A JUNCTURE, MOSES’ OPENING REMARKS FOCUS MUCH ATTENTION ON AN ISSUE THAT APPLIES TO A SMALL PERCENTAGE OF THE POPULATION, THE CREATION OF A JUDICIAL SYSTEM”. TO BE MORE PRECISE, MOSES REMINDS EVERYONE OFHIS APPOINTMENT OF THE HEADS OF THE VARIOUS TRIBES TO SERVE AS JUDGES IN ORDER TO ALLEVIATE HIMSELF OF MANY OF THESE DUTIES.
THERE ARE A FEW THINGS TO OBSERVE HERE. FIRST, THIS IDEA WAS REALLY THE BRAINCHILD OF HIS FATHER-IN-LAW, JETHRO. ALSO, HE WASN’T USING THIS TIME TO PRAISE HIMSELF FOR THE CREATION OF THIS SYSTEM OF RENDERING JUSTICE. INSTEAD, HE WAS COMPLAINING OF ITS NECESSITY, CALLING THE PEOPLE TOO CONTENTIOUS, REMINDING THEM “HOW CAN I BEAR UNAIDED THE TROUBLE OF YOU, AND THE BURDEN, AND THE BICKERING”. MANY COMMENTATORS USE THE TERM ‘REBUKE’ IN DISCUSSING MOSES’ COMPLAINING ABOUT WHAT SEEMS TO BE THE PETTINESS OF HIS PEOPLE. BUT LET’S FACE IT-HE WAS KVETCHING.
IT’S TOO BAD THAT MOSES WAS NOT ABLE TO READ THE INSIGHTS INTO HUMAN NATURE THAT JAMES MADISON OBSERVED IN THE LATE 1700’S. WHEN THE UNITED STATES CONSTITUTION WAS FIRST PROPOSED, MADISON, ALONG WITH JOHN JAY AND ALEXANDER HAMILTON, PUBLISHED A SERIES OF ESSAYS, NOWCOLLECTIVELY KNOWN AS THE FEDERALIST PAPERS, IN AN EFFORT TO CONVINCE THE POPULACE TO APPROVE THIS NEW DOCUMENT. IN FEDERALIST 51, MADISON IN ESSENCE SEES WHAT MOSES HAD BEEN STRUGGLING WITH. MANY OF HIS COUNTRYMEN, WEARY OF RULE UNDER THE BRITISH, WERE NOT TOO KEEN ON ESTABLISHING ANOTHER STRONG CENTRALGOVERNMENT. TO COUNTER THIS SENTIMENT, HE SET OUT THIS PREMISE IN ONE OF THE MOST FAMOUS PASSAGES FROM THIS ENTIRE WORK: ”BUT WHAT IS GOVERNMENT ITSELF, BUT THE GREATEST OF ALL REFLECTIONS ON HUMAN NATURE? IF MEN WERE ANGELS, NO GOVERNMENT WOULD BE NECESSARY. SO IT REALLY WASN’T THE PEOPLE OF THE JEWISH NATION’SFAULT THAT THEY OFTEN ACTED OUT OF SELF INTEREST- NOR WAS IT UNIQUE TO THEM. THERE WAS NO REASON FOR MOSES TO REBUKE THEM, OR TO KVETCH ABOUT IT. IT WAS, IN REALITY, AS MADISON NOTED, A FACT OF HUMAN LIFE.
THERE IS ANOTHER INTERESTING FACET OF THIS PARSHAT. WHEN MOSES STARTS TO SET UP THIS JUDICIAL SYSTEM HE TELLS THE PEOPLE “PICK FROM EACH OF YOUR TRIBES MEN WHO ARE WISE, DISCERNING, AND EXPERIENCED, AND I WILL APPOINT THEM AS YOUR HEADS.” BUT JUST TWO SENTENCES LATER HE NOTED HOW HE “TOOK YOUR TRIBAL LEADERS, WISE AND EXPERIENCED MEN, AND APPOINTED THEM HEADS OVER YOU”. WAIT A SECOND- WHAT HAPPENED TO THE REQUIREMENT THAT THEY BE DISCERNING?
THIS OMISSION WAS NOT PICKED UP ON IN THE ETZ HAYIM CHUMASH THAT YOU HAVE BEFORE YOU, BUT IT WAS NOTED BY RABBI HERTZ IN HIS CHUMASH. YOU ALL REMEMBER THE HERTZ CHUMASH, ALSO KNOWN IN MANY SYNAGOGUES AS “THE BIG BLUE BOOK”. IF WE EXTEND THE PRINCIPLE THAT “EVERY LINE OF TORAH HAS MEANING” TO INCLUDE OMISSIONS, THEN IT IS PROPER FOR US TO ASK WHY WAS DISCERNMENT LEFT OUT. ACCORDING TO RABBI HERTZ, THE RABBIS EXPLAIN THAT “MOSES WAS UNABLE TO FIND MEN WHO POSSESED ALL THE DESIRED QUALIFICATIONS.” MAYBE SO, BUT THIS AGAIN BEGS THE QUESTION “WHY WAS DISCERNMENT LEFT OUT?”
MY FIRST INSTINCT IS TO PARROT THE WORDS OF STAR TREK’S DR. MCCOY: “I’M A LAWYER, NOT A TORAH SCHOLAR!” BUT THAT’S TOO EASY. SO LET ME PROFFER THIS IDEA. BOTH KNOWLEDGE AND EXPERIENCE ARE EASY TO IDENTIFY. IN TODAY’S WORLD, WE COULD ASSESS KNOWLEDGE BY KNOWING WHERE A PERSON WAS EDUCATED, IF HE GRADUATED WITH HONORS, AND IF HE HAD ANY SIGNIFICANT PUBLICATIONS. LIKEWISE WITH EXPERIENCE- WHAT WAS HIS JOB BACKGROUND, AND DID HE HAVE ANY NOTABLE ACHIEVEMENTS OR AWARDS. THERE LIKELY WERE SIMILAR BENCHMARKS IN MOSES’ DAY AVAILABLE FOR THE PEOPLE TO USE IN ASSESSING THE KNOWLEDGE AND EXPERIENCE THAT WERE NECESSARY FOR JUDICIAL CANDIDATES.
BUT DISCERNMENT, WHICH I BELIEVE IS THE MOST IMPORTANT OF THE THREE QUALIFICATIONS, IS DIFFERENT. THE MERRIAM WEBSTER DEFINITION IS ”THE QUALITY OF BEING ABLE TO COMPREHEND WHAT IS OBSCURE”, AND OF BEING ABLE TO UNDERSTAND NUANCES. ANOTHER CHARACTERIZATION MIGHT BE NOT ONLY BEING SMART, BUT ALSO BEING WISE. ON THE OPPOSITE SIDE, A SMART PERSON WITHOUT DISCERNMENT MIGHT BE CHARACTERIZED DOWN HERE AS SOMEONE WHO “MAY BE BOOK SMART, BUT HE A’INT GOT A LICK OF COMMON SENSE.”
FINDING THIS QUALITY OF DISCERNMENT IN SOMEONE REQUIRES AN ALMOST CASE-BY-CASE APPROACH, SOMETHING THAT DOESN’T SHOW UP IN DIPLOMAS OR JOB RESUMES. IN FACT, IRONICALLY,EVIDENCE OF IT MIGHT ONLY ARISE AFTER THE PERSON HAS BEEN JUDGING FOR A PERIOD OF TIME. SO IF YOU NEED TO SELECT A GROUP OF JUDGES IN A HURRY, IT MAKES SENSE THAT DISCERNMENT WAS LEFT OUT. LET ME GIVE YOU A FEW EXAMPLES OF WHAT I AM TALKING ABOUT.
EARLY IN MY LEGAL CAREER, I WAS WORKING FOR BAY AREA LEGAL SERVICES, REPRESENTING A WOMAN IN AN EVICTION PROCEEDING. THERE WERE NO LEGAL DEFENSES. THE HEARING WAS ON A MONDAY MORNING. THE JUDGE, A MAN NOT KNOWN FOR HIS LEGAL KNOWLEDGE, APPROPRIATELY RULED AGAINST MY CLIENT. BUT THEN DISCERNMENT KICKED IN. HE STATED THAT HE WOULD NOT SIGN THE ORDER UNTIL FRIDAY AFTERNOON, MEANING THAT IT WOULD NOT REACH THE SHERIFF’S OFFICE FOR ENFORCEMENT UNTIL THE FOLLOWING WEEK. THAT ALLOWED MY CLIENT ADDITIONAL TIME TO FIND ANOTHER PLACE TO LIVE.
A FINAL EXAMPLE COMES FROM ONE OF THE FIRST SERMONS I HEARD AFTER MY ARRIVAL IN TAMPA. IT WAS CLOSE TO PASSOVER AND THE RABBI, A WONDERFUL MAN NAMED NATHAN BRYN, TOLD THE STORY OF A SHTETL IN EUROPE MANY YEARS AGO WHERE THE JEWISH RESIDENTS WOULD COME TO THE RABBI BEFORE PASSOVER TO MAKE SURE THAT THEIR FOOD WAS PROPER FOR THE HOLIDAY. WITH THE WHOLE TOWN WATCHING, A POOR WOMAN PRESENTED HER MEAGER PASSOVER PROVISIONS FOR INSPECTION. IN A LOUD VOICE THE RABBI DECLARED “ALL YOUR FOOD IS TRAIF! YOU HAVE TO THROW IT ALL OUT.” THIS SEEMED HARSH, UNTIL YOU REALIZED WHAT HE WAS DOING. ALL THE WEALTHY PEOPLE OF THE COMMUNITY HEARD HER PLIGHT AND RUSHED TO PROVIDE HER WITH MORE KOSHER LE PESACH FOOD THAN SHE COULD EVER HAVE DREAMED OF.
DID THE RABBI FOLLOW THE LAW? PROBABLY NOT. BUT IS IT ALWAYS JUSTICE TO FOLLOW THE STRICT LETTER OF THE LAW? AS THIS CASE ILLUSTRATES, DISCERNMENT, THE ABILITY TO UNDERSTAND NUANCES, IS SOMETIMES THE BETTER APPROACH.
SO WHAT CONCLUSIONS CAN WE REACH THIS MORNING?
I THINK ONE LESSON HERE IS THAT SOMETIMES YOU HAVE TO LOOK BEYOND THE SURFACE TO SEE WHAT IS REALLY IMPORTANT. TO ME, KNOWLEDGE AND EXPERIENCE ARE CERTAINLY CRITICAL ATTIRBUTES OF JUDGES . BUT IT IS DISCERNMENT, A QUALITY THAT MIGHT ONLY BE FOUND AFTER A PERIOD OF TIME, THAT MAKES THE DIFFERENCE BETWEEN BEING ACCEPTABLE AND BEING GREAT. AND THE OTHER LESSON TODAY IS THAT YOU CAN LEARN SOMETHING NEW EVEN IN WHAT WAS SUPPOSED TO BE A REVIEW SESSION.
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