James Taranto of Opinion Journal had some good fun at the expense of The New York Times editorial page last week. He compared the Times’ editorial urging Senators to vote no on President Bush’s nominee for Chief Justice, John Roberts, to one written 11 years ago in support of Ruth Bader Ginsburg, a Clinton nominee for the Supreme Court.
The two nominees have much in common. Both were sitting on the D.C. Court of Appeals at the time of their nomination for the Court. Both had well deserved reputations as excellent appellate advocates. Ginsburg made hers as an advocate on behalf of the ACLU and womens’ groups; after serving as a deputy solicitor general under President George H. W. Bush, Roberts’ represented clients across the ideological spectrum in private practice. In their Senate confirmation hearings, both left their questioners looking more than a little out of their depth, if not a bit silly, and both had refused to say how they would rule on particular cases that might come before the Court.
The Times charitably conceded that Roberts’ legal abilities more than qualified him for the Court, and even conceded that he might make a superb chief justice. Nevertheless, bemoaned the Gray Lady, his failure to promise never to tamper with existing precedents on a number of liberal red-flag issues rendered him too much of an enigma for confirmation. Roberts frequent protestations of respect for the weight of precedent failed to satisfy the Times.
Curiously, the Times took a very different approach to the Clinton nominee. The paper’s unsigned editorial stressed how Ginsburg had “dwarfed . . . her questioners” and “outclassed those entrusted to advice and consent on her nomination” — a description that applied equally to Roberts. Ginsburg, opined the Times, was correct in demanding that the Senators judge her “as a judge, not as an advocate,” and refusing to commit herself on particular issues like the death penalty.
The only explanation for the Times’ different approaches to the two nominees is the men who nominated them: There is no nominee that President Bush could conceivably put forward whom the Times would support.
It would be tempting to think that the Times’ slippery approach to first principles is a particular affliction of the Left. Certainly, the Israeli Left has long been more concerned with winning the battle for its “peace” plans than with the values of democracy, the rule of law, and civil liberties of which it claims to be the stalwart defender. And it is child’s play to point to pairs of decisions of the Israeli Supreme Court where only the identity of the parties can explain the difference in results. It would be amusing, if it were not so sad, to observe the manner in which some ardent feminists can be found defending the most oppressive regimes towards women, as long as they are sufficiently anti-American or anti-Israel.
But truth be told, the tendency to concern oneself only with immediate results, without much concern for underlying principles or means, cuts across the ideological spectrum. Critics of the Israeli Supreme Court (myself included) have frequently accused it of usurping decisions properly left to the legislative and executive branches in a representative democracy. Yet few of those critics rushed into print recently to defend the Court’s decision to permit the Israeli government to raze Gush Katif synagogues (a decision which the government ultimately retracted.)
From a point of view of democratic theory, the Court conducted itself in an exemplary fashion. After Rabbi Yaakov Bleich of the Ukraine and others pointed out that the government’s decision could have potentially serious repercussions for claims for the return and preservation of Jewish cemeteries and holy sites around the world, the Court sent the matter back to the cabinet for further consideration. But it did not attempt to make the decision for the government.
True, the Court has frequently taken a more interventionist with respect to foreign policy and security decisions, as when Justice Dalia Dorner issued an injunction against Prime Minister Binyamin Netanyahu’s closure of the Palestinian Authority’s Jerusalem headquarters at Orient House. But at least in this case it got matters right, and critics should have been the first to say so. That they were not likely reflects the fact that most of them were hoping for a different – more “Jewish” – result from the Court.
ADMITTEDLY, I FIND ANY OPPORTUNITY to make fun of the New York Times virtually irresistible. But it is already late Elul and I have more immediate concerns than the Times’ futile opposition to the Roberts’ nomination. Unfortunately, the shallowness of our thinking and argumentation on public issues, serves as a good moshol for the same shallowness of thinking about our own lives and conduct. The inconsistencies in our thinking about the great public issues of the day too frequently mirror the inconsistencies of our own lives. We spend too little time either articulating the guiding principles of our lives or asking ourselves how our actions accord with our professed principles.
At no time in the year is our reluctance to subject our lives to any form of rigorous self-scrutiny more evident, than during Elul. How many of us wake up with the first Shofar blasts of Elul, which call upon us to awaken from our spiritual torpor? Who feels an air of spiritual trembling all around, such as we read about in descriptions of the Bais HaTalmud of Kelm during Elul?
For some, the first night of Selichos is sufficient to awaken them to the impending Day of Judgment. But many of us just find ourselves a bit more tired during Selichos, without being any more alert to the cheshbon hanefesh that is the prerequisite to Yom HaDin. Too frequently we arrive at Rosh Hashanah unprepared to face the Divine Judgment, and wondering where Elul went. If we are not careful, we may be no better prepared for Yom Kippur. As we klop Al Cheit, we do so as someone considering the state of our souls for the first time: “Hmm, this one seems to have something to do with me. If so, Hashem, I’m sorry.”
Our self-examination would not have to be terribly searching to uncover some of the basic inconsistencies of our lives. When we look in the mirror, most of us find ourselves responding favorably to the image staring back at us. Of course we are aware that the person in the mirror has hurt others, usually those closest to him or her, in the past year, and that there is much that could be improved in his or her behavior. But we also know all the mitigating circumstances that make the fellow in the mirror less culpable in our eyes.
When it comes to the behavior of others, however, we show no similar inclination to consider pleas in mitigation or to look for extenuating circumstances that might make their behavior more understandable. We cut others, even those closest to us, little of the slack that we readily grant ourselves. Yet it should be just the opposite: We should be much more exacting with ourselves and far more understanding of the failures of others.
Our failure to note the inconsistent standards that we apply to ourselves and others reflects our general reluctance to think very deeply about ourselves. Rabbi Asher Weiss recently proposed a simple test to ascertain where we stand on a ruchnios scale. He suggested that we ask ourselves how many of our pleasures are ruchnios pleasures and how much of our tzar is ruchnios tzar from the failure to daven better or learn more, and the like. How many of us could undertake that inquiry with causing ourselves more pain in the process?
We are less than a week before the Aseres Yamei Teshuva, when we beseech Hashem and our fellow man for forgiveness. But without some hard thinking about the patterns of our behavior and a rigorous spiritual accounting, we have no chance to break those patterns and start the year anew with a fresh slate.
It’s not too late, but it’s getting later.
This article originally appeared in Hamodia, September 29, 2005