A reader, Professor Joshua Berman at Israel’s Bar-Ilan University, writes to me with a brilliant insight about President Obama’s Supreme Court pick. Berman’s new book, by the way, is Created Equal: How the Bible Broke with Ancient Political Thought:
Obama is correct when he says “The life of the law has not been logic, it has been experience,” and that a justice must also know “how the world works, and how ordinary people live.”
That’s the wisdom behind the rabbis’ dictum (see Maimonides, Mishneh Torah, Hilchot Sanhedrin 2:3) that a judge — no matter how learned and wise he is — cannot serve on the Sanhedrin [the Jewish high court] unless he has children. Sonia Sotomayor has no children.
It is ironic that a judicial nomination is being trumpeted on the basis of the nominee’s “life experience,” when she would fail the “life experience” test of the Talmud. She may be a fine jurist and a fine intellect, but is being childless really “how ordinary people live”?
Of course, from a constitutional standpoint, a nominee cannot be disqualified because of childlessness. But the rabbis’ caveat should give us pause to consider: What does raising children do to us? What insights and sensitivities are uniquely engendered because of that singular experience? How do those insights inform our judgment generally speaking? Are there sensitivities developed through that process that we would want our judges today to possess?
This is seems to me absolutely right on, and the questions are crucial to consider. Your thoughts? Read on for mine.
On one hand, I could show you there’s a strange pattern among the very greatest men of either having no children of their own, having difficulty conceiving, or having children who fail to carry on the family standard. But these greatest men are rarely chosen popularly to fulfill their historic role. An exception would be the childless and elected George Washington. In his Washington biography, National Review‘s Rick Brookhiser makes the point that Washington seemed destined to be father to his country, not to children.