Kavanaugh: A Talmudic Response

I write today without the benefit of whatever added insight the FBI report regarding the charges against Brett Kavanaugh might already have provided the Senate. Nonetheless, it seems to me that there are really only two plausible explanations of all we have heard. Since Professor Ford and Judge Kavanaugh can't both be right about what happened, one of them may be intentionally lying. Or it could conceivably be the case that they both perceive themselves to be speaking the truth, but that one of them is wrong and has simply misremembered the past. The side issues—the reasonableness of feeling 100% certain about the accuracy of memories more than a quarter-century old, the specific role underage drinking plays in the narrative, the reliability of the specific character witnesses introduced by both sides—are part of the picture as well. As too are the issues represented by the various spectral personalities silently, almost ethereally, floating over the whole sordid drama like the Angel in Angels in America: Anita Hill, Merrick Garland, the Jane Roe of Roe vs. Wade (standing in here for the women of America whose access to abortion would be dramatically compromised if Roe vs. Wade were to be overturned), and any number of lesser spirits.

As the deliberations about Judge Kavanaugh’s nomination continue, those questions give way to broader ones. Should there be a statute of limitations for crimes involving sexual assault? (And, if so, then how should “sexual assault” be defined in this context?) Should the age of the parties involved be a factor? (And, if so, how old is old enough to be  considered responsible enough for one’s actions to face legal action for having committed them?) If there is no reasonable chance for an individual accused of a crime to be tried in a court of law, should his or her presumption of innocence preclude the publicization of his or her alleged crime…or should the accuser’s right to speak out freely and in public trump the accused individual’s right to privacy? And how exactly should we, the public, relate to individuals accused of abominable behavior yet who have specifically not even been arrested by the police, let alone actually convicted of a crime? Should the news media protect the identity of such individuals until they are actually charged with a crime? Or does the greater mitzvah lie in publicizing their names, thus shaming them in public, once it becomes clear that they will specifically not end up convicted in court, which consequence would automatically make their misdeeds part of the public record?

Back in 1982, this could have been a simple matter for the police to handle in the normal way: by investigating a complaint to determine its credibility, then by referring the matter to the District Attorney to determine whether to seek to have the accused individual indicted of an actual crime. And, indeed, if that had happened back in 1982, and the young Brett Kavanaugh had been tried and found guilty, we would surely not be having this specific national debate today about his worthiness to sit on the Supreme Court. (Nor would we, I think I hope, if he had been tried and found not guilty of the charges made against him.) But, of course, there was no arrest, no indictment, and no trial all those years ago. And so we are left discussing whether it is virtuous or morally wrong to hold potential leaders to a set of standards more rigorous than the ones that apply in courts of law. Should the mere intimation of wrongdoing ruin a nominee’s chances of getting the job in question? And, if so, then how exactly should the public evaluate such suggestions of scurrilous, yet unindictable, behavior?  And according to what—or, rather, whose—standard?

In the Talmud, there is a story that seems to shed light on that specific aspect of the question at hand…and particularly in light of the way it was interpreted by one of the greatest of all commentators on the Talmud, Rabbi Yom-Tov ben Avraham Asevilli, commonly called by his acronym, the Ritva. Born in Seville, Spain, around 1260, the Ritva was the student of two of the greatest talmudists of his (or any) day: Rabbi Solomon ben Adret (called the Rashba) and Rabbi Aaron Halevi of Barcelona. But what he has to teach us is a relevant today as any modern rabbi’s comments on the matter could be.

As is well known, Jewish law is rigorous in its exclusion of all testimony in court not offered by eye witnesses to an alleged crime. Feeling that it is always better to allow some guilty parties escape judgment than to punish, let alone execute, even one innocent soul, the exclusion both of circumstantial evidence and hearsay testimony simultaneously makes it extremely difficult for an individual to be convicted at all but also almost impossible for innocent people to be found guilty. (Whether that is actually true or not depends on the ultimate reliability of eye-witness testimony, a topic still being intensely debated among jurists today. But that is certainly how the system was understood to work by rabbis in ancient and medieval times.)

And so we come to the story, told briefly in the talmudic tractate called Moed Katan, of a certain rabbi whose reputation was, to use the Talmud’s expression, repulsive. Rashi, always the first commentator to consult, says merely that this was an individual about whom extremely negative gossip was widespread. But the Ritva is far more explicit and makes this about sexual assault, and specifically about the kind that cannot be “proven” in a court of law given the fact that it, like most sex crimes, occurred in private. The man the Talmud is discussing, the Ritva writes, “was widely known to behave poorly by exposing himself in public and [also] by repeatedly secluding himself with single women, both of which behaviors constituted a dark stain on the reputation of his fellow rabbis.” (The Ritva is entirely clear here: the expression I’ve translated as “a dark stain” is literally in Hebrew “a huge ugliness.” The part about him exposing himself in public is related to the end of the story, regarding which see below.)

So how should such a man be treated? Clearly, this cannot end up in a court of law since there are no witnesses to testify against him. But should we leave it at that? Rabbi Judah bar Ezekiel (d. 299 CE), one of the great lights of Babylonian Jewry, is reported to have wondered aloud whether or not to place him under a ban—a kind of extra-judicial distancing to which were subjected precisely people widely understood to be guilty, at least, of poor behavior yet who could not for one reason or another be tried in court. On the one hand, Rabbi Judah can imagine leaving him alone because of the worthy work he otherwise performs. (Is this starting to sound familiar? The Ritva explains clearly that although it is permitted to learn Torah from a rabbi who has been put under a certain low level of ban, pupils are still required to keep their distance—about six feet—from such a teacher, and that that can be a degrading experience for such students.) On the other, he can hardly allow the name of Heaven to be profaned. (This too the Ritva explains in a way that will be very resonant with Americans following the Kavanaugh affair: it can never be a good plan, he reports, to hear reports of people behaving poorly and appear not to care merely because prosecution in a court of law is not feasible. In other words, what about the moral standing of a society that appears not to care about misconduct merely because the offense in question is not deemed actionable in a court of law?)

And now we get down to it. Rabbi Judah asked a colleague if he had heard any precedent on the matter and the answer he got back was that Rabbi Yochanan (bar Nafcha, c. 180-c. 279 CE) once taught a lesson that spoke directly to the question at hand. He was specifically teaching about the verse from Malachi that declares that, because the priests of Israel were the teachers of Torah in his day, the “[priest] serves the nation as a messenger from the Lord of Hosts.” What the prophet meant, Rabbi Yochanan taught, was that people who put themselves in positions of authority have to answer to a higher standard that the people who seek learning or judgment from them. And so it is specifically not enough for public teachers of Torah to be unindicted and unconvicted of any crime, but they must also have reputations that makes them worthy of their status. And the Ritva has something to say about that too: that that lesson means that the man in question should be put under a ban because his behavior was shaming his profession and that the whole concept of the ban was meant in the first place to speak to the unindictable sexual offender, the one who brings shame to his profession even though he technically cannot be punished for his deeds.

The rest of the story is interesting, but less relevant. The man was put under a ban. Eventually Rav Yehudah died and the man sought to have the ban lifted. Different sages lined up on different sides of the issue, but in the end a wasp stung the man on his penis as a result of which he died—thereby proving (at least according to the canons of talmudic reasoning) both the truth of the charges leveled against him and the correctness of the ban under which he was placed. (The Ritva points out that the word for “penis” here, amah, also is used to denote the forearm, which makes it possible that it was on his arm that the man was stung. But, he notes, the weight of plausibility is with those who imagined him with his pants down in the privy—the Ritva was one of our earthier commentator—getting stung at the scene, so to speak, of the crime.) And then the Talmud wraps the whole story up with a brief account of where the man was finally buried.

What the Talmud is saying is that would-be leaders of society have to earn the trust of the public and that it is nowhere near enough for such people merely not ever to have been indicted of criminal activity. Positions of leadership and influence should be offered to people who embody the finest moral qualities, people who are exemplary in their behavior (and not solely in sexual contexts), and who deserve to serve as national role models. In my opinion, the question we should be asking about Brett Kavanaugh is not whether he did this or that thing long ago, but whether he meets the criteria listed just above for a position of supreme national influence and importance.