Our Torah portion this week, Tetzaveh, deals with the construction and decoration of the Mishkan – the Tabernacle in the Wilderness, and the clothing and responsibilities of the Kohanim – the Priests – as divine intermediaries in the sacrificial rites.
This being said, I ask for a bit of indulgence for this particular week in referencing a completely different section of the Torah, because it has been echoing rather loudly since the extraordinary events of this past weekend. That is the portion in Deuteronomy known as Shofetim – Judges – which we usually read in its schedule at the end of the summer, as we are anticipating the Days of Awe.
Deut 16: (18) You shall appoint magistrates and officials for your tribes, in all the settlements that the Eternal your God is giving you, and they shall govern the people with due justice. (19) You shall not judge unfairly; you shall show no partiality; you shall not take bribes, for bribes blind the eyes of the discerning and upset the plea of the just. (20) Justice, justice shall you pursue, that you may thrive and occupy the land that the Eternal your God is giving you.
On Saturday afternoon, before the Last Rites of the Church were even administered to the late Supreme Court Justice Antonin Scalia, z”l, Senate Majority Leader Mitch McConnell made a public statement saying that the Senate should not confirm a replacement for Justice Scalia until after the 2016 election. This was an act of direct defiance and rejection of President Obama’s authority as President, and in fact, his responsibility according to the Constitution that he swore to “protect, preserve and defend.” It was also a direct rebuke of the prescribed practice of giving serious consideration to each nominee on his or her individual merits.
The section in Deuteronomy that I quoted focuses on the establishment of government and domains of authority. The primary function of the civil government is adjudication. The Torah sets forth basic rules of adjudication, with the goal of achieving justice in the society. There are rules of judicial procedure, bringing evidence, capital punishment and lesser forms of punishment, the establishment of an appellate system, and provisions for each succeeding generation’s ability to interpret and reinterpret Torah law.
While United States law is not governed by Torah law, of course, nevertheless we can see forerunners of certain fundamentals of American governmental organization in the Torah, set forth with the goal of establishing justice in society. The Torah actually divides the civil sphere into three domains of governance, called ketarim – crowns. These were: Keter Torah – the Crown of Torah, Keter Kehunah – the Crown of Priesthood, and Keter Malkhut, the Crown of Kingship. As I said, they are not the same as our American notion of separation of powers into the executive, legislative, and judicial branches of government. Nevertheless, the intent in Ancient Israel was to prevent any one entity from overtaking the entire society through the concentration and abuse of power.
While this is far from a comprehensive study of either Torah law or American law, it is clear that both systems were designed with the intent of preventing the concentration of power into a single human authority through the separation of powers structure. A number of legal scholars and public figures have repeated numerous times in the past few days that the United States Constitution clearly and undeniably states that when a vacancy occurs on the Supreme Court, the President is obligated to put forth a nominee to the Congress, and the Congress is obligated to vet that nominee to the ultimate end of either accepting or rejecting him/her. We all understand what is at stake in the quagmire that Senator McConnell and his colleagues are seeking to create. We also know that this is contrary to the very American system of justice that our Constitution aspires to establish. Every effort should be made to block this quagmire so that we as a society can get on with the business of pursuing justice in our society.