Abstracts

 

Professor of Law and Harry Edward Warren Scholar,

Boston University School of Law

 

 

Illinois Supreme Court Justice Seymour F. Simon (1915-2006) would have filled the stereotype of the righteous man in Jewish lore.  He was a man of principle, communicated those principles in an insistent tone to anyone who would listen, worked hard to further the cause of justice and earned a reputation as a committed public servant.  Justice Simon served as Justice of the Illinois Supreme Court from 1980-1988 after having served on the Illinois Appellate Court from 1974-1980.  Before winning election to the courts, Justice Simon was a politician, serving, inter alia, as an alderman in the City of Chicago and as President and Member of the Cook County Board.  President of the Cook County Board is the second most powerful position in Chicago after the Mayor of Chicago.  The Mayor at the time was Richard J. Daley, whose administration was famous for being both authoritarian and corrupt, the paradigmatic example of machine politics.  Although Justice Simon began his political career as a member of the Daley team, as an alderman he soon became part of the opposition, and was elected County Board Chairman against the wishes of the machine.  Ultimately, he was effectively banished from politics to the judiciary when the corrupt machine made it too difficult for him to be elected to any other post.  He soon earned a reputation as an able and prolific judge.  He led the Illinois Supreme Court in dissents, and one of the areas in which he became especially known was the death penalty.  He voted against the death penalty in every case in which it was at issue, dissenting in every case in which the Court approved the imposition of the death penalty.  Over time, his fears about the death penalty were born out, as the Governor of Illinois ultimately found it necessary to commute the death sentence of every convict on death row in Illinois.   To anyone who knew him, Justice Simon’s Jewish identity was clearly important to him.  He was always active in Jewish institutions.  His sympathy for the underdog and the outsider are traits commonly ascribed to the Jewish values of Simon’s day.  True to his character, Justice Simon departed the Illinois Supreme Court reportedly over what he viewed as misconduct by his colleagues who relied on information not on the record to deny a license to practice law to a reformed heroin addict and petty criminal.  During his entire career, his Jewish identity exhibited itself in two tendencies that Jewish judges have been known for:  On the one hand, as a politician and elected judge, he assimilated into the greater society.  On the other hand, in his role as political and judicial dissenter, he found himself in the traditional Jewish role of outsider, and he was not shy about playing the role of moral conscience of the community. 

Doctor, Faculty of Law,  Hebrew University & Bar-Ilan University

  

The dilemma of   a Judge's "Jewish Identity" came to a critical juncture in the Arlosoroff  Murder Case, a very famous and controversial affair, that even today, almost 80 years later, is still a source of a lively debate in the Israeli society.

 

 Dr. Chaim Arlosoroff, the young (34) and gifted leader of the Mapai Party (Labour - led by David Ben Gurion) was murdered on the beach of  Tel Aviv on 16 June 1933. Immediately, the British Police arrested three Jewish suspects, members of the Revisionist movement (led by Ze'ev Jabotinsky , later to become the Herut – Likud -  party).

 

The long trial took place amidst a very  bitter and even vitriolic rivalry  between the "left" (Mapai), pushing – and even helping the police – for conviction,  and the "right" (Revisionists), wishing the defendants will be acquitted.

 

Two defendants – Stavski and Rosenblatt – stood trial in the Assize Court (called "Court for Serious Crimes") in Jerusalem. The judges were: Two British - Corry, Vice-President of the Supreme Court, and Plunkett, President of the Jerusalem District Court; One Arab – Ali Hasna ; and one Jew – Valero.

 

All  four judges acquitted Rosenblatt  - but three convicted Stavsky and sentenced him to death by hanging. Only Valero, in a very short  decision, acquitted him.  His verdict caused a public storm: The “left” – Mapai – attacked Valero personally, similar to the sharp attacks on the Chief Rabbi of Eretz-Israel, Rabbi Kuk, who declared publicly his  belief that Stavski did not murder Arlosoroff.

 

Did judge Valero acquit Stavsky because of  his “Jewish identity” and because he, as Chief Rabbi Kook, did not believe that a “Jew can  murder a Jew”?  Or did he examine the evidence and concluded that it is impossible to convict Stavski?

 

I will try to answer those questions in the paper I will present to the conference.

Professor, Schulich School of Law, Dalhousie University, Canada

 

By the time Bora Laskin was named as the first Jewish judge ever appointed to the Supreme Court of Canada in 1970 (he became chief justice in 1973), Canadian society had become sufficiently tolerant and multi-cultural that his elevation was greeted with pride and a certain self-satisfaction.  The change in attitudes from even twenty years before, when some major Toronto law firms would not allow his text on constitutional law in their libraries because of the religion of its author, was startling.  Laskin had experienced a relatively contented and prejudice-free childhood growing up in a small northern Ontario town, but encountered a wall of anti-Semitic discrimination when he moved to Toronto to pursue legal studies and bar admission. His response to negotiating his way through these barriers was to make no concessions and in a sense to behave as if anti-Semitism did not exist.  He preferred to seek out sympathetic Gentile allies rather than to rely on communal organizations or support.  When he was more established, he worked with the Canadian Jewish Congress on legal strategies for attacking discrimination, but never in a public way.  Laskin’s Jewish identity was important to him (he was an observant Jew who participated actively in his Reform synagogue) but religion for him was, ideally, a private matter that should not become a defining part of one’s public identity.  He would probably have resisted the idea that there was any identifiable Judaic influence on his judgments.  This of course does not prove that there was not, but it does pose challenges to those who might seek to identify such influences.  Some of the methodological and theoretical difficulties involved in tracing such influences will be considered before tentatively identifying some themes in Laskin’s jurisprudence that may be a product of his Jewish heritage.

 

Professor, Department of History, University of California, Santa Barbara

 

This paper will examine the rise of the Court's "Jewish seat," how the appointments of Jewish Justices have contributed to the politicization of the confirmation process, and the controversy over the disappearance of the Jewish Seat between 1969 and 1992.

     It will then turn to the siginificance of the appointment of three Jewish justices to the Supreme Court since 1992 and the issue of whether a "Jewish seat" even exists. According to Justice Ginsburg, for example, "no one regarded Ginsburg and Breyer as filling a  Jewish seat.  Both of us take pride and draw strength  from our heritage, but our religion simply was not relevant tothese  appointments." Finally, I will explore the difficulties involved in writing about how "Jewishness" affects judges-difficulties which ultimately convinced me that writing a book about the Jewish seat, as fascinated as I was by the topic, was a bad idea.

 

 

 

Professor of Law and Law Alumni Scholar

Boston University School of Law

 

 

The Shalit case, known as the case of “who is a Jew’ depicted secular Zionist nationalism against Jewish law. Shalit, an officer in the Israeli army, was married to a non-Jew. Both atheists, they wanted to register their children either as “Jewish” or as “Israeli” in the state registry. Jewish law mandates that a Jew is only one whose mother is Jewish, and therefore the minister of the interior  refused to register the children as requested. 

The case arrived before the Supreme Court on the heels of the Six Day War, when Jewish Messianism was on the rise. The coalition government was threatened with a downfall if Israeli secular law were interpreted to ignore Jewish law. By then Simon Agranat was serving as Chief Justice for four years and as a member of the Supreme Court for almost twenty years. I shall discuss his agony over this question and his reluctant decision to join the dissent and deny Shalit’s petition to recognize his children as Jewish or Israeli.

A judge of the District Court in Haifa

 

 

Was Itzhak Kahan a Jewish Judge? How does one  define "a Jewish Judge"?

Itzhak Kahan never implemented the Halacha in his opinions, and rarely cited jewish law, even where he could do so. Itzhak Kahan rejected the possibility to give judgements according to traditional Jewish rules. Itzhak Kahan made Aliya after he and his Family suffered from Anti-Semitic pursuits. As chair of the commission to investigate the events at Sabra and Shatila he did applied the high moral expectations of the bible to the IDF and other decision makers, but the author believes that it was out of bench, and should not be regarded as part of his judicial views. The painful loss of his son in the War of Attrition (the "Hatasha war") did not appear to influence any of his opinions.

Kahan was a legal formalist. He did not believe that values – Jewish, Zionist or Universal -- form a part of the law and did not allow his own values to appear in his judicial decision making. The author believes that Kahan was not a Jewish judge. He lived his life by the Enlightenment's idea of being a Jew at home and a Judge outside. Itzhak Kahan was a Jew and a Judge.  

Doctor, Independent Scholar

 

As a judge of the Supreme Court of Israel in its formative period, Judge Moshe Landau was – I will argue -- both typical and atypical. Landau was an ardent Zionist and at the same time he was a 19th century child of liberalism: a secularist and a Western humanist. He had a soft spot and even an admiration for the religious Jews, but he himself felt more comfortable among the Ancient Athenians than among the Tanaim and the Amoraim, more at home in Greek than in Aramaic (or Yiddish). During his long tenure as a judge between 1953 and 1982, all the main legal, philosophical, emotional and political combats between Zionism, Judaism, and Western liberalism that reached the Supreme Court crossed his path. In my paper I will analyze Landau's judicial attitude in response to these conflicts. I will show that Landau believed in the possibility of integration between Zionism, Universalism and Liberalism, and that in his legal decisions he strived to build a path towards such integration. I will meditate on the question, to what extent was his way successful.     

 

Professor of Law. Director of the Centre for Law and Society

Lancaster University, Law School, U.K.

 

Jews rarely reached the higher levels of the British judiciary until the 1950’s and 1960’s. Since the late 1960’s, however, they have been promoted in increasing numbers to Britain’s top courts.   Today, a significant number of judges in the Supreme Court, the Court of Appeal and the High Court are Jewish.  The number of Jews in the Supreme Court is particularly striking, as is the fact that the first and current President of the Supreme Court (Lord Phillips) and the Master of the Rolls (the head of England and Wales’ civil justice system), Lord Neuberger, are Jews. Many Jewish judges are associated with progressive causes, exemplified by the development of public law, judicial review and human rights and the expansion of the rights of the individual against the excesses of state power.

But what does it mean to be a “Jewish judge” in contemporary Britain?  How Jewish are these judges in terms of their personal affiliations? To what extent have they maintained or cut loose from their ties to Judaism? And does the Jewish background of the current judiciary impact on their decisions, and if so, how, when and to what effect? This paper seeks to address these questions, largely on the basis of interviews with twelve prominent contemporary Jewish-born judges. In particular, it will explore the interplay between Judaism, Jewishness, secularisation and the culture of the legal profession in the lives and decisions of Britain’s top court judges.