Our tradition asserts that Moses was the most remarkable of men. He was kind, and we are shown many instances in early Exodus that show him defending the helpless, whether Israelite or polytheist. He stayed true to God. He turned down offers where the Creator was willing to elevate him to the highest of status and destroy the wayward Israelite nation. He was dedicated to the people, and despite his errors, most notably at the scene that features the hitting of the rock, he remains an inspiration to us. But even he had allegations made about him. This shows it is possible for allegations to be made about the most upstanding, upright people.
At the same time, when Moses gives his farewell address in the book of Deuteronomy, one of the accomplishments he chooses to home in on regards his appointment of judges. In his words:
A close reader of the Torah notices something peculiar. In this instance, Moses indicates that judges must have certain qualities. They must be חכמים-wise men. They must be נבונים- understanding. They must be ידעים- full of knowledge. But these are not the qualities that were originally recommended for these arbitrators of justice.
The original qualities can be seen featured in Exodus 18:21, and is suggested by Jethro, Moses's father-in-law and originally, a priest of Midian.
| כא וְאַתָּה תֶחֱזֶה מִכָּל-הָעָם אַנְשֵׁי-חַיִל יִרְאֵי אֱלֹהִים, אַנְשֵׁי אֱמֶת--שֹׂנְאֵי בָצַע; וְשַׂמְתָּ עֲלֵהֶם, שָׂרֵי אֲלָפִים שָׂרֵי מֵאוֹת, שָׂרֵי חֲמִשִּׁים, וְשָׂרֵי עֲשָׂרֹת. | 21 Moreover thou shalt provide out of all the people able men, such as fear God, men of truth, hating unjust gain; and place such over them, to be rulers of thousands, rulers of hundreds, rulers of fifties, and rulers of tens. |
Jethro talks of the character traits these men must have. Knowledge is not sufficient. These men must be אנשי חיל- valorous, and able to serve in the post without being intimidated. They must also be יראי אלהים-God fearing. (An interesting note: in the book of Genesis, when there are miscarriages of justice such that women are taken from their protectors, who often claim the title of brother, this demonstrates that the culture was not God-fearing.) They must be אנשי אמת- men of truth; men who find lies and falsehoods or anything that remotely resembles falsehood utterly repugnant. They must be שנאי בצע- those who hate bribes. For those who will understand this reference, they must be men like Ned Stark.
A few verses later, we see who Moses appoints:
| כה וַיִּבְחַר מֹשֶׁה אַנְשֵׁי-חַיִל מִכָּל-יִשְׂרָאֵל, וַיִּתֵּן אֹתָם רָאשִׁים עַל-הָעָם--שָׂרֵי אֲלָפִים שָׂרֵי מֵאוֹת, שָׂרֵי חֲמִשִּׁים וְשָׂרֵי עֲשָׂרֹת. | 25 And Moses chose able men out of all Israel, and made them heads over the people, rulers of thousands, rulers of hundreds, rulers of fifties, and rulers of tens. |
Why does Moses only end up choosing men who are אנשי חיל but who lack the other qualities? It seems very strange.
There are several interpretations of the episode. Seforno among others suggests that Moses searched in vain to find men who possessed all the admirable qualities laid out by his father-in-law. He simply could not find such people, which is unsurprising, because men of that caliber are rare indeed. The Chizkuni offers another approach which both answers the implicit question raised by the text in Deuteronomy and seems appropriate for the current moment. He writes:
ויבחר משה אנשי חיל, “Moses selected capable men;” the meaning of the words אנשי חיל, is that he selected men whose qualities corresponded to the criteria stipulated by his fatherinlaw, Yitro in verse 21. Moses at least knew beyond doubt who were the wealthy men among the Israelites, and who could therefore be more or less immune to the temptation of bribes. As far as the invisible virtues were concerned that his fatherinlaw had stipulated as criteria for making someone suitable to be a judge, he had to rely on his intuition and G-d’s help. This is why they were not mentioned here, as Moses’ judgment was not based on evidence acceptable in a court of law. Even forty years later when Moses recalls the episode, he speaks only about characteristics which are visible, i.e. possessing insight, displaying wisdom and possessing knowledge, i.e חכמים נבונים, ידועים. (Compare Deuteronomy 1,13) No one, on the other hand, can be sure if his fellow man truly is a G-d fearing person.No one can truly know whether his fellow man is a God-fearing person. (Recall, as I mentioned earlier, that sexual propriety is aligned with fear of God in the entirety of the Book of Genesis). Thus, at the end of the day, Moses found himself in a position where he needed to judge based on visible virtues - whether a person possesses insight, displays wisdom and possesses knowledge.
But Maimonides tells us the law is stricter than this. He brings up another important point- reputation. In Hilkhot Sanhedrin, Chapter 2, Law 7:
We are not careful to demand that a judge for a court of three possess all these qualities. He must, however, possess seven attributes: wisdom, humility, the fear of God, a loathing for money, a love for truth; he must be a person who is beloved by people at large, and must have a good reputation.
All of these qualities are mentioned explicitly in the Torah. When relating Moses' statements concerning the appointment of judges, Deuteronomy 1:13 mentions: "Men of wisdom and understanding." This refers to wisdom.
The verse continues: "Beloved by your tribes." This refers to those who are appreciated by people at large. What will make them beloved by people? Conducting themselves with a favorable eye and a humble spirit, being good company, and speaking and conducting their business with people gently.
When relating Jethro's advice to Moses to appoint judges, Exodus 18:21 speaks of "men of power." This refers to people who are mighty in their observance of the mitzvot, who are very demanding of themselves, and who overcome their evil inclination until they possess no unfavorable qualities, no trace of an unpleasant reputation, even during their early manhood, they were spoken of highly. The phrase "men of power" also implies that they should have a courageous heart to save an oppressed person from the one oppressing him, as Exodus 2:17 states: "And Moses arose and delivered them."
Just as we see that Moses was humble; so, too, every judge should be humble. Exodus 18:21 continues: "God-fearing" - the intent is obvious. It mentions: "men who hate profit," i.e., people who do not become overly concerned even about their own money. They do not pursue the accumulation of money, for anyone who is overly concerned about wealth will ultimately be overcome by want.
The verse continues: "men of truth," i.e., people who pursue justice because of their own inclination; they love truth, hate crime, and flee from all forms of crookedness.It is possible that Brett Kavanaugh is innocent of everything he is said to have done. As the Chizkuni asserted above, none of us can know who is truly God-fearing, who is truly moral. At this point, however, such a divisive nominee- someone whom half the country believes assaulted a classmate- is not fit for the post. On a biblical level, he cannot be seen as a man of integrity who defends the helpless and oppressed, a man beloved by your tribes. Indeed, in his testimony he himself admitted that he will never be able to recover his reputation- it has been ruined. Most of all, unlike Moses- whom God Himself describes as humble- he is not humble. If Brett Kavanaugh sought to do what was best for the country as opposed to what is best for himself in terms of achieving status and position, he would ask for the President to withdraw him as a candidate (consider Moses' well-loved statement in Exodus 32:32 "Erase me from your book!"). To serve as Justice is to serve the people, and to serve the people is to act with humility and choose their well-being over one's own. Despite the allegations made against Moses, this is something the biblical figure indisputably did, time and time again. Over and over again, when he had to choose between himself and the people's needs, he chose the people. To be a leader and to be a Justice is to some degree, indicated by a willingness to sacrifice. It is a mantle that can only be assumed by someone who is willing to serve and thus someone who is willing to humble himself.
Brett Kavanaugh is not that man.
