Tuesday, January 13, 2004

A Rooting Interest in Death

Amish Tech Support runs an annual "dead pool," in which blogger-participants attempt to guess 15 famous people who will not be with us at year-end. I heard of the pool on Meryl Yourish's site. I didn't participate, because I felt uncomfortable having a rooting interest in death.

Meryl added an interesting twist: A Dead Arab Dictator's matching fund. She would contribute $25 to Magen David Adom (Red Shield of David), a very worthy cause, for each Arab dictator that went to his eternal damnation during the year. Several other bloggers (and some of Meryl's readers) promised to match, so that the total now is $200 for each dead Arab dictator.

Another blogger, Luis Albright, quotes much Talmud in painting Meryl's participation in the dead pool generally, and especially her leveraging of dictator deaths for ambulances, as "un-Jewish," in posts here and here.

While I agree with much of what Albright has written, his criticism is too harsh. Albright quotes many sources for his argument. The most succinct is a story from the Talmud (Talmud Bavli, Megila 10b) recounting God's reaction when, with Pharoah's army drowning, his ministering angels wanted to sing him songs of praise. The Holy One, according to the Talmud, responded thusly: "How can you sing to me now? My children are dying." I have always thought this one of the most powerful lessons in all of Holy Writ. But it can be misused. This story, and all of the sources Albright brings, ascribe not to man but to God Himself the exquisite sensitivity Albright would have us show to the suffering of even such depraved people as Yassir Arafat and Bashir al Assad. I'd agree that Godliness generally, and this sort of bottomless compassion in particular, is an ideal toward which we humans should strive. But we fail, all of us, even Albright. Albright is (as he himself declares) an observant Jew. So it is almost certain that for eight nights last month, he sang (as I did) the hymn "ma'oz tsur"after lighting chanukah candles in his home. Sung in a rousing, joyous, spirit-lifting niggun (melody), here are some of the lyrics :
Le'eit tachin matbe'ach/Mitzar hamnabe'ach/Az egmor b'shir mizmor/Chanukat hamizbe'ach . . . Cheil Paroh v'chol zaroh/Yardu k'even bimtzula
. . . Rosh yemini nisei'ta/v'oyeiv sh'mo machita/
Rov banav/v'kin'yanav/al ha'eitz talita.
In English, that's
When you will have prepared the slaughter
for the blaspheming foe,
Then I shall complete with a song of hymn
the dedication of the Altar . . . Pharaoh's army and all his offspring
went down like a stone into the deep.
. . . You raised the head of the Benjamite and You blotted out the name of the enemy, on the gallows You hanged his numerous progeny, his possessions.
So while God may have remonstrated at joyful song in the face of Pharoah's death, we humans -- in a hymn sanctioned by our rabbis -- still mention it in joyful song millenia after the fact. The reference in the third lyric (after the second ellipsis) is to Haman the Amalekite, the villain of the Purim story. Arafat, Assad, the mullahs of Iran, and the "royal" family of Saudi Arabia, are modern day Hamans. Their deaths will be a deliverance for the Jewish people. Meryl's attitude toward their demise is not quite saintly, but it's also not un-Jewish.

UPDATE: It can be argued that the tone of "ma'oz tsur" is not one of joy at the enemy's death, but of relief and thanksgiving at Israel's deliverance. That's a mighty fine line, since the destruction of the enemy was pretty much the sine qua non of the deliverance. But I think a charitable reading of Meryl's posts puts her on the right side of that line, if you want to draw it.

On Jewish Justices

When I served as a law clerk, I attended a luncheon program at the court where the featured speaker, a reform rabbi and lawyer, was to speak on the topic of the Jewish Justices of the Supreme Court. The Jewish Justices, including the current two, are on the whole a group in whom the American Jewish community can justifiably take great pride, but I nonetheless listened to the address with pricked up ears. What I was listening for was an honest appraisal of Justice Frankfurter. I didn't hear it. An honest appraisal of Justice Frankfurter simply must deal with his votes in Korematsu v. U.S. and Board of Education v. Barnette, and his cowardly dissenting opinion in the latter case. The speaker didn't even mention them. I didn't let it pass then, and in view of the similar defect in Justice Ginsburg's recent article in the Forward , I feel compelled to speak up again.

At the outset, I concede that there is much to admire in Justice Frankfurter, including his intellect and much good that he did before he was appointed to the High Court, all of which Justice Ginsburg mentions in her article.

But in the two cases I mentioned, both landmarks, albeit of very different kinds, Justice Frankfurter was on the wrong side. These were not ordinary cases, and his votes not just simple mistakes of judgment. They were moral failings that must be accounted for in any evaluation of the man.

In Korematsu, Justice Frankfurter was complicit in one of the darkest stains in the history of the Court, voting to uphold the Roosevelt administration's unconscionable policy of imprisoning Japanese-Americans during World War II. At the time that Justice Frankfurter blithely approved of the herding of Japanese-Americans into camps (for the simple crime of being of Japanese descent), his own people were being herded into camps as well, for the simple crime of being Jews (I'm aware, of course, that the camps here and in Europe were not in the same league; but it is no defense of our actions to say that "at least we didn't gas them.") If Justice Frankfurter was troubled by the dissonance, he hardly showed it. The Talmud tells the tale of an encounter between Hillel, one of the great sages in the history of Judaism, and a proselyte. The proselyte challenges Hillel, saying explain the Torah to me while I stand on one foot. Hillel responds: that which is hateful to you, do not do unto your neighbor. That is the whole Torah. All the rest is commentary. Now go study the commentary." Talmud Bavli, Shabbat 31a.

One would think a Jewish justice might have done well to heed that injunction. That's not to say that Frankfurter should have looked to the Talmud for either his judicial philosophy generally or his rule of decision in a particular case, but when the topic is "Jewish justices" and the pride that American Jews can take in them, then I think it appropriate to inquire whether, in their role as justices, they acted as one might expect a Jew to act. And Frankfurter himself was not above asserting his Judaism as a prophylactic to ward off criticism, which brings us to his dissent in Barnette. That case involved a mandatory flag salute in West Virginia schools, from which the defendants in the case, devout Jehovah's Witnesses, demurred on religious grounds. (just as an aside, the flag salute in question at the time consisted of a right arm extended stiffly in front of one, which was thereafter changed because of its resemblance . . .) The Supreme Court, in an opinion by Justice Jackson which remains (in my view) one of the true gems in 225 years of Constitutional adjudication, held that "[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." The Court therefore affirmed the lower court's injunction against enforcement of the mandatory flag salute. It is from this holding that Justice Frankfurter felt bound to dissent. He opened his dissent in this way: "One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution." He then went on to assert that much as he agreed with the sentiments behind the opinion of the Court, he could not join it, because the liberty not to salute a flag did not fit within his crimped view of what liberty entailed.

Frankfurter's votes in these two cases can be defended. Indeed, the sort of judicial restraint he exercised is very much in vogue in certain circles today. But to me Frankfurter's votes in these cases represent the thinking of a court Jew, servile and morally obtuse. When the history of American law is written many generations hence, Frankfurter may well loom as one of the giants. In these two vital cases, he erred greatly, and any encomium that elides these failures does not render a true picture.