So much surrounding the Supreme Court nomination of Samuel Alito comes down to two simple words: “life” and “choice.”
Simply put, for many in Washington the question of whether he is pro-life or pro-choice is the be-all and end-all of his nomination. The extreme division that certain groups have created between these two concepts is precisely what at first glance makes it so difficult to pin-point a Jewish position on his nomination.
The Jewish tradition endorses neither life nor choice as ultimate ends. Both are critical elements in God’s master plan. On the one hand, life is God’s first and greatest gift to humanity. However, Judaism’s emphasis on life is matched by the weight it places on the concept of choice.
Maimonides makes bechira chophshit, freedom of choice, one of his 13 primary principles for understanding Judaism. For Maimonides, true observance of the law can only come about through one choosing through their own free will to follow what they have been commanded. Even regarding repentance, he argues (Mishna Torah, Laws of Repentance 2:1) that “to truly repent” involves the ability to have the opportunity to sin but choose not to. The choice to sin must be present and available before someone has fully repented.
Today, in American society, the concepts of life and choice have been hijacked by absolutist political and religious figures asserting that human beings either live by the credo “the sanctity of life” or the motto “life without choice is not worth living.” What both of these noisy sides fail to recognize is the overwhelming silent majority of this country standing in the very grey, murky and complex terrain called real life. Those who stand in the world of the living realize that ultimately each of us chooses life. As the Jewish position states, “ubacharta bachaim,” “And you shall choose living.” Living points to the quality and meaning of one’s life.
Ultimately, the Jewish tradition stands in opposition to both extremes of the debate, offering a sober worldview that gives dignity to the often-conflicting rhythms of human existence. While the tradition worries about “partial-birth” or late-term abortions, there are times that even under such circumstances the most stringent of rabbinic voices would allow for a fetus to be terminated. Likewise, there are almost no rabbinic authorities who contest the importance of stem-cell research, and while the vast majority of the tradition opposes physician-assisted suicide, much debate and legal room exists around the status of those who are brain dead.
When taken together, these rulings can be seen as contradictory, but on closer examination they give testimony to a theology not of life or choice per se, but a theology of the living.
In Hebrew, the word emet begins with an aleph–the first letter of the Hebrew alphabet–and ends with the letter taph–the last letter in the alphabet. Ultimately, any notion of truth must take into account opposing worldviews.
So the next time you hear someone tell you that the Jewish tradition follows in the ideological footsteps of the right-wing element in the Republican Party or the left wing of the Democratic Party, do yourself a favor: Close whatever section of the newspaper you are reading and open up the comics, pick up your T.V. remote and change channel to the Yankees, and if you heard it on the radio, don’t even bother switching the dial to find a more sane station on a.m., just flip on the f.m., sit back and listen to some of your favorite music. Because anything you’re about to be told is only a half truth at best and an outright lie at worst.
Therefore, the real question confronting the nation as we consider the Alito nomination is not so much whether he would vote to favor a pro-life or a pro-choice perspective (besides, he would never answer that question, anyway). Rather, the important question is: Will he ignore a jurisprudence of living and instead privilege a more dogmatic and principled form of legal interpretation?
In recent weeks, Alito has gone back and forth on so many different issues. On the one hand, one is tempted to see his flip-flopping as precisely the type of non-dogmatic jurisprudence that most Americans are looking for in a Supreme Court justice. On the other hand, many fear his fli-flopping is more about doing whatever it takes to get on the high court. Let us hope that it is the latter and not the former.