Kingdom of Priests

Kingdom of Priests

A Childless Supreme Court Justice?

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.

On the other hand, when we are given the choice of a leader or a judge, I would certainly feel better about choosing someone who had the experience of raising kids — with all that entails in terms of developing real understanding of other people’s limitations, foibles, and needs. 
Being responsible for genuinely helpless little people, where there’s no conscionable option of walking away or finding someone else to hand over your responsibility to, seems to me to be an essential experience in developing meaningful “empathy.”
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posted May 27, 2009 at 7:53 pm

This is an interesting point, and it has some validity. On the other hand, Souter, whom Sotomayor would replace and who was appointed by the Republican George H. W. Bush, not only is childless, too, but (unlike Sotomayor, who is divorced) has never even been married. That was actually brought up as an issue during his confirmation hearings–could he be “empathetic” to family issues? In any case, to all accounts her clerks and aides are like family to her, so that is a positive.
Of course, it becomes a can of worms–if Sotomayor is confirmed, there will be six Catholics on the bench. Is that OK? (and that’s not a swipe, as I’m catholic myself). Should there be some that have been divorced? (Sotomayor, I think, would make two on the current bench). And on and on. My own take is that as long as you have nine justices and it’s not overbalanced in any direction over time, things will average out to be OK.

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Glen Davidson

posted May 27, 2009 at 7:58 pm

Um, Washington had children. I assume that you know that (it’s in a link), but the impression the post gives is that he did not.
His last child, a son, died of disease while serving in the Revolutionary War. This death being near the end of the war, his triumph at Yorktown must have been especially bittersweet.
I have wondered if he would have been quite so reluctant to assume hereditary powers had his son lived, though. Of course we’ll never know, but it is possible that both the freeing of his slaves after his death and his refusal to claim any lasting official powers were assisted by the fact that at the end he had no heirs.
This is not to suggest that prominent people in general may be better at their jobs with no children. I should think that being childless would be helpful for some careers, harmful for others.
A woman might be able to become rather more expert at the law without having children, while not attaining certain valuable experiences. However, many prominent men with children have not actually had much to do with raising them, and rarely has this been considered to be much of a drawback for them.
Glen Davidson

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David Klinghoffer

posted May 27, 2009 at 8:01 pm

Glen, Washington himself had no children. His wife did from an earlier marriage. He was a step-father, not a father.

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Glen Davidson

posted May 27, 2009 at 9:10 pm

Oh yeah, David, sorry about that.
Wow, the programs I’ve watched sure made it sound like he was the genetic father. Disease made him sterile?
Regardless of my mistakes, being childless at the end or through all time may yet have made him more “statesmanlike” than otherwise. Or he may have been that principled no matter what–who would ever know?
Glen Davidson

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David Anderson

posted May 27, 2009 at 11:23 pm

is being childless really “how ordinary people live”?
I don’t know if you’ve seen the statistics, but there are millions of DINKs (Dual Income No Kids). And many single people like me who have never been married. Lots of ordinary people in America have no children. I can’t believe anyone would actually make an issue of this.
I know I’m not qualified to sit on the Supreme Court because I have no legal background. But because I have no children????
If anyone questions her qualifications or her ability to relate the law to ordinary people, listen to Obama give the reasons he picked her, either from his press conference or his website. And after that, talk to me again about “She has no children.” Go ahead. I dare you.
And you wonder why it’s hard for me to take conservatives seriously?

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David Klinghoffer

posted May 28, 2009 at 12:28 am

Thanks for commenting, David. The point is that *if* we are going to make one’s personal life story a criterion for serving on the SC, then certain experiences can’t be ruled out as irrelevant arbitrarily. Opening up this area of inquiry was Obama’s choice, not mine. But given his premise that life history matters, then yes, the experience of having people vitally depending on you would appear to be an element of adulthood. Someone who’s never done this is missing that element. It could be experienced as a soldier in wartime, or by raising children, even by supporting a spouse. Someone who’s never had another human being dependent on him or her is likely to be more childlike in that respect. I would hesitate to elect such a person to high office, where maturity level is obviously crucially important.

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posted May 28, 2009 at 12:44 pm

If parenthood automatically makes one selfless and allows them to develop empathy then why do all states have to have Child Protective Services? Your argument is woefully inadequate.
Parenthood does not automatically make one insightful or sensitive or able to “develop real understanding of other people’s limitations, foibles, and needs.” Parents abuse and murder their own children all the time. And most childless people go their whole lives without murdering anyone. One learns empathy and understanding in many ways. Parenthood is only one of those ways.
If Sonia Sotomayor has the qualifications for the job that is all that is needed. Parents should not get first crack at jobs.

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Your Name

posted May 28, 2009 at 1:22 pm

The Supreme Court Justice whose resignation created the current vacancy was David Souter, who was childless.
Is DK suggesting, therefore, that Souter was unfit for the job?
Or is it OK for men to be bachelors and childless, but NOT women, since, according to DK’s Christophile perspective, motherhood is a woman’s true calling?
Leave it to DK to ‘circumcize’ Christian sexism!
(and if anuyone is an expert on circumcision – self-taught, no less!- it is DK. Read his first book.)
P.S. wasn’t Jesus also childless? And the Apostle Paul?

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posted May 28, 2009 at 3:34 pm

The thought of questioning a person’s qualifications based upon their marital status or by whether they have children is flatly discriminatory. We should banish the thought. Funny how this issue has been used in different ways by different organized religions. The Catholic and Jewish perspectives are particularly at odds.
Queen Elizabeth would be a prime example of an unmarried woman without children still able to get the job done.

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posted May 28, 2009 at 6:10 pm

I agree fully with DK on the point of childlessness and to answer another person who commented, yes, I opposed Souter as well. But the problems are far deeper with Obama’s poor choice (it does not even seem possible that this man, so poorly chosen for the nation’s highest office–is even capable of making a good choice)for SCOTUS.
Obama has highlighted this woman’s “life story” and it is indeed not flattering. She is divorced and without children and this surely has an impact on empathy at the very least. By Jewish law, a judge must be married and have children so that he can understand all of society. It is no stretch to see Sotamoyer as someone prone to see government as a support system for people since she lacks one of her own. She is alleged to have had at least one abortion, was beaten by a man–these are PRECISELY the kind of things that will quickly get a person dismissed as a suitable juror. She therefore lacks the life experience that would be helpful to be a great judge. The fact that she had hardship and overcame it needs to be defined and explained if we are to be impressed.
By contrast, for example, Miguel Estrada required no affirmative action to reach the pinnacle of the legal profession and the Dems furiously shot him down with slander Do we know if Sotamoyer was brought to the Ivy League purely on the merits?
This is clearly a poorly qualified individual with a radical understanding of the judicial process who believes that a judge is far less umpire than activist. She will not harmonize on the Supreme Court since she has a record of arrogance and brazenness–while Souter was distinguished by his modesty and quiet mediocrity.
To cement DK’s point–it is surely revealing that the guy who does everything right and is the model judge is hated, while the one who has the less than ideal upbringing and brings such controversy is thought of has bringing something special or “better.” Perhaps this is the signature move of Obama, to make that which is less than ideal seem “better.”

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posted May 28, 2009 at 8:01 pm

David K.: But given his premise that life history matters, then yes, the experience of having people vitally depending on you would appear to be an element of adulthood. Someone who’s never done this is missing that element. It could be experienced as a soldier in wartime, or by raising children, even by supporting a spouse. (emphasis added)
So should someone (such as Souter) who is or was single not be nominated? Or someone who has never served in the military (which I think includes the majority of the current bench)? Is there an implication that someone who has not served in the military or been married or had children is less mature? Or should that be a matter of the individual?
DavidF: By Jewish law, a judge must be married and have children so that he can understand all of society.
But the SCOTUS isn’t under Jewish law (or Catholic, or any other religious law), right?

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posted May 29, 2009 at 12:59 pm

I think Suter is childless too.

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Your Name

posted June 2, 2009 at 11:53 am

I agree that having and raising children can be a way of developing patience and self control and nurturing attitudes, but it is specious to say that that makes someone a more worthy judge or any other position. Many mothers and fathers have abused or neglected or been indifferent to their children. Does that mean they would act the same way in their professional lives? Do loving parents always act benignly in their work life? Biographies of famous achievers illustrate sordid as well as the uplifting in their family lives.
There are many skills needed for high office which can be developed through life. I have met Catholic priests and nuns who were as caring and nurturing as a good parent. I worked with people who had developmental delay for many years and that surely taught me as much as raising my children did.
And even if a person is childless there are usually children of others around them. If we examine the lives of people in politics and arts and the Law we find arguments on both sides for the premise that parenthood makes a difference. Other considerations are far more important.

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