A Supreme Bat Mitzvah: Parshat B'midbar 5770

This Shabbas I want to ask a seemingly simply question: What is the most important quality we should be looking for in a Supreme Court Justice? If you ask the question to a pundit on FOX news the answer will undoubtedly be, we should be looking for someone who is a conservative, a strict constructionist not some liberal, activist judge who will legislate from the bench. Ask Rachel Maddow on MSNBC and she would be quick to point out that conservatives can be activist judges too! Therefore we should be looking for a justice with a penchant for progressivism, an understanding that the constitution is a living, breathing document, one that must constantly change with the times. Ask president Obama, as they did on the campaign trail, and you will get another response: The President said “we need somebody who's got…the empathy to recognize what it's like to be a young, teenaged mom; the empathy to understand what it's like to be poor or African-American or gay or disabled or old. And that's the criteria by which I'm going to be selecting my judges.” So which is it? Strict conservative constructionism, pious progressivism, or an empathetic heart and mind? What quality is most important in choosing our next Supreme Court justice?

Well, I have a different answer. Mine is simple. I believe that the most significant criterion for choosing our next justice is that this justice should be the first Supreme Cour Justice to have had a Bat Mitzvah in an Orthodox synagogue. And yes, I recognize that this criterion excludes the 49% of the population who are male, and the 97.8% of Americans who are not Jewish; but please allow me to explain why I feel it is so important that our next Justice be a Bat Mitzvah.

Some years ago as I sat in Rabbi Joel Roth’s course entitled Senior Codes, we spent countless hours poring over some of the most important Sh’elot u’T’shuvot, Rabbinic Legal Responsa ever written. In each class we read and analyzed a Rabbinic response aimed at determining the course of action which was seen as correct in the eyes of Halacha, Jewish Law, God’s desired path for humankind in this world. As Rabbi Roth adeptly explained, when you look at these T’shuvot carefully, you see how the great rabbinic judges rendered their decisions:

-Firstly, we see that the Torah is paramount to any posek, any judge of Halacha, and it must be considered with supreme respect.
-Secondly, since the Torah is not always clear about a given subject, nor can the Torah conceive of every possible scenario under the Sun, the Oral Torah, the laws of the Mishnah and the Talmud must also be consulted with extreme reverence.
-Finally, we must always look at the power of precedent. Whether it is the concept of Minhag Avoteinu B’Yadeinu, the notion that a tradition which was strictly adhered to by our ancestors becomes like a law for us today (hence this kippah that I am wearing), or simply the decision of any posek of past centuries, these cases of precedent must inform our modern responses to a question of Jewish Law.

And from all of this Rabbi Roth explained, two patterns emerge which can justify a wholesale change in the chain of Halachic precedent:

1. If the only expressed reason for the promulgation of a norm no longer obtains, the norm may be abrogated or modified. In other words, if the reason we used to do something is truly no longer relevant, then that something can indeed be changed to match current times.

Secondly, a change can be made if it is proven that:
2. The consequences of maintaining the norm are more detrimental than the consequences of modifying the law. This is of course the justification for the famous ‘Driving T’shuvah’ which argued that the consequence of maintaining the norm, namely people sitting in their suburban homes all alone on a Shabbat morning was indeed WORSE, than changing the law and permitting some to drive to synagogue.

So what does all this have to do with a Bat Mitzvah?

This brings me to a little known hamlet, tucked away in a small corner of America known as Manhattan, birthplace of our Solicitor General, and now Supreme Court nominee Elena Kagan.

As the New York Times reported on Thursday, Ms. Kagan and her family were members of the famous modern-Orthodox shul called Lincoln Square Synagogue. She was a star student in her Hebrew school and when she turned 12 she knew that she wanted to mark her coming of age in the eyes of a Jewish people in the same way as her male coreligionists did, with a ceremony known as the Bar or Bat Mitzvah. Her Rabbi at the time was the famous Shlomo Riskin, who remembers her passion at the time with regard to adapting the precedent of tradition to more closely match the tenor of the times. The only problem was, Rabbi Riskin had never even seen a Bat Mitzvah before, what would it look like?

After much deliberation it was determined that Ms. Kagan would become a Bat Mitzvah on Friday night, May 18th 1973, where she would read from the Book of Ruth, (appropriate for the season of Shavuot) and deliver a speech analyzing the meaning of this special megillah.
And so it was.

Yet I am sure you noticed that her Bat Mitzvah was on a Friday night and not on a Shabbat morning as Bar Mitzvahs tend to be; and I am sure you took note of the fact that she was not permitted to read from the Torah, but rather from the Book of Ruth, whose reading is simply a minhag, not a law in the truest sense of the word. But I believe you have to give Rabbi Riskin some credit for trying, even though sometimes trying is not enough: Rabbi Riskin later said of that night “We crafted a lovely service, but I don’t think it satisfied her completely.”

So what is the big Halachic deal with a Bat Mitzvah anyway, surely the Torah makes no mention of the institution of a Bar Mitzvah, let alone a Bat Mitzvah, so why wouldn’t it be allowed in the first place?

Well, once we exhaust the Torah on a given subject we turn to the Rabbis of the Mishnah and the Talmud, and indeed there, in a Tannaitic source found in Masechet Megillah 23a it reads:

הכל עולין למנין שבעה, ואפילו קטן ואפילו אשה. אבל אמרו חכמים: אשה לא תקרא בתורה, מפני כבוד צבור.

“All are allowed to be called up to read from the seven aliyot of the Torah readings, even a minor and even a woman. Although, the wise sages said: A woman is not permitted to read from the Torah because of K’vod Tzibbur, the Dignity of the Community.”

Hmmm. Interesting right? There are actually a lot of layers to this brief text.
Firstly, the Reisha, the first part clearly indicates that although you might not think a woman could be called up to read from the Torah, afilu isha, actually, she is!
Though no sooner is this said then a contradictory statement arises limiting the original. No, said the sages, a woman is indeed not allowed to read from the Torah.
Finally, the reason for this prohibition is given as “Mip’neyh K’vod Tzibbur,” for the sake of the dignity of the community.”

So now, I turn to our Supreme Court Nominee, Solicitor General Elena Kagan and ask, Ms. Kagan, how would you decide? And I think, given her own life experience with this matter I can venture a guess as to her reply.

She would say: I would like to apply the first pattern of appropriate Halachic change to this situation and say that when the only expressed reason for the promulgation of a norm no longer obtains, the norm may be abrogated or modified. In this case the sages justified their prohibition invoking Mip’neyh K’vod Tzibbur, for the sake of the dignity of the community; and just as it is up to the Supreme Court to determine that ‘Separate but Equal’ was no longer a morally tenable justification for Southern segregation, so too our definitions of “The Dignity of our Community,” have no doubt changed. In fact, I believe it would impinge upon our Kavod, our honor, were we not to have changed this law.

Which brings us to Ms. Kagan’s second (assumed) answer, which would be to enact the second pattern of change claiming that change is necessary when “the consequences of maintaining the norm are more detrimental than the consequences of modifying the law.”
In other words, maintaining the ancient status quo would in fact be far more detrimental to our modern congregations than allowing for change. Imagine our own community without the women who attend and daven in our daily minyan, without the women who read our Torah and lead our prayers in this sanctuary, without the hundreds of young women who come before us to become Daughters of the Commandments….without this necessary change our community would be poorer indeed.

And so I return to my original claim that more important that strict constructionism, more crucial that a commitment to progressivism, more significant than an ability to empathize is the criterion that our next justice be a Bat Mitzvah. I pray that should she be confirmed, Ms. Kagan would learn from our great and wise tradition and understand that the Constitution is indeed sacred and lacking at the same time; that she would believe that the judges who preceded her and their wise precedent must be respected as well as scrutinized for modern relevance; and that she believe that while change should not be made without justification, when ample justification is found change must be made.

And finally, perhaps the most important reason why our next Supreme Court Justice should be a Bat Mitzvah, is so that an entirely new generation of young Jewish women can look up to her and say, I too can be Jewish and I too can become anything I wish to be.

Shabbat Shalom.