Central Conference of American Rabbis Resolution on Judicial, Executive Branch, and Federal Agency Appointees
January 25, 2017
Background
Jewish tradition teaches the necessity of fair, just and impartial courts. In Exodus 18:21, for example, Moses’ father-in-law, Jethro, advises him to choose capable, trustworthy, and law abiding members of society as judges. Elsewhere we are taught of the ethical obligation to oppose unjust persons and unfair judgments; judges should neither “favor the poor or show deference to the rich.” (Leviticus 19:15)
These values are also a cornerstone of American democracy. The preservation of the rule of law rests on the independence and fairness of our courts. Judges at all levels must be committed to defending the Constitution, protecting civil rights and civil liberties, acting within the framework of the precedents set by higher courts, and enforcing Constitutional legislation enacted by Congress when cases come before them. Legitimate concern about judicial vacancies and the burdens they impose on an overworked judiciary should not lead us to retreat from insisting that individual nominees meet the highest standards.
In addition to the Supreme Court’s well known and crucial role in our nation’s governance, federal courts at all levels play an increasingly critical role in safeguarding our fundamental freedoms. As the country has grown, and as the number of issues under federal jurisdiction has multiplied, federal court caseloads have burgeoned. At the same time, the Supreme Court has significantly reduced the number of cases that it considers by granting writs of certiorari. This means that even novel precedents set by each of the Federal Courts of Appeals may never be reviewed by the Supreme Court or may not be reviewed for a considerable period of time even when there are conflicts between circuits or significant issues on which a Supreme Court ruling is needed. Those precedent-setting decisions and interpretations by the appellate courts govern all lower court cases in their respective circuits and are effectively final decisions until and unless overturned by the Supreme Court.
Since the landmark ruling in Brown v. Board of Education, advocacy groups on both the right and the left have increasingly come to understand the policy-making role of the courts. While in the past, the pattern was to appoint judges across a fairly wide political spectrum, recent administrations have intensified efforts to shape the philosophical balance of the courts by appointing as judges individuals who subscribe to a particular view concerning the Constitution and controversial policy issues. As a result, the philosophical and ideological divisions in the federal judiciary increasingly mirror partisan divisions in Congress. Moreover, anticipated Supreme Court appointments could tip the balance of an evenly divided court on issues of the most fundamental concern to the Reform Jewish Movement, American Jewry, and our nation.
Unlike other presidential appointees, federal judges serve for life; their service often extends far beyond the term of the President who appoints them. Public input on judicial nominations is part of the democratic process envisioned by the founders. The Constitution makes judicial appointment subject to the Senate’s “advice and consent.”
Presidential appointments were never envisioned to be automatic. Appointment and confirmation are political decisions in which the voice of the people should be heard and weighed. As a democratic institution, the Senate needs to hear from the public before exercising its Constitutional power. This is implicit in the Senate’s own rules, which provide for committee hearings on each nominee; it is expected and desirable that interest and advocacy groups make their views known. As a Conference, occasions will arise when we may wish to raise the collective rabbinical voice, articulating the values of Torah in the debate over the future of our judiciary.
Although a President is entitled to significantly greater discretion in selecting Executive Branch nominees who reflect the Administration’s views and philosophy, some similar considerations apply with respect to confirmation of nominees to these positions. Such appointees serve at the will of the President, and their key roles are to provide advice to, and implement decisions of, the President. The President should have wide leeway in appointing people to carry out the President’s policies and reflect the Administration’s viewpoints. Nonetheless, many of these appointments also shape public policy we care deeply about, and may determine the approach of an entire agency of government. Expressing views on confirmation would bring the collective rabbinic voice of Torah into deliberations when our values are affected by appointees who may determine vital policy matters.
Appointees to independent agencies are charged with carrying out policies enacted by Congress, often during different administrations, have terms in office that often extend beyond the term of the President who appoints them; and are usually removable from office only for cause. As a consequence, the views of Congress and of the public relating to how agency policies are to be carried out must also be considered. When a nominee has a demonstrated record of opposition to the policies that he or she would be responsible to administer, or of opposition to protection of fundamental rights that our Conference supports, our Conference may find it necessary for us to oppose confirmation of the nominee in order to protect our rabbinate’s fundamental Torah values.
THEREFORE, the Central Conference of American Rabbis resolves to:
1. Bring to the attention of the Senate of the United States, without opposing or supporting nominees, issues affecting moral policy concerns as articulated in CCAR resolutions on which the nominees’ views or record need to be clarified before consent is given.
2. Empower the CCAR President and Chief Executive, in accordance with the procedure outlined in paragraph 3 below, to oppose or support a nominee on behalf of the CCAR if, after consideration of what the nominee has said and written, and his or her record, they believe that a compelling case can be made that the appointment would uphold or threaten protection of the most fundamental rights which our Conference supports, rooted in our understanding of Torah – including, but not limited to, the separation of church and state, protection of civil rights and civil liberties, racial justice, LGBTQ rights, climate justice, women’s reproductive freedom, and Israel’s security. Among the considerations that should be weighed in making this determination are whether:
A. The nominee possesses or lacks the competence, professional qualifications, or ethical standards to serve in the position to which he or she is nominated;B. A nominee for a judicial position has demonstrated a pattern of support or disregard for generally accepted principles of jurisprudence or a nominee for an executive branch or independent agency appointment has a demonstrated record of support or opposition to the policies that he or she would be responsible to administer;C. The nominee has a record of bigoted, racist, sexist, misogynist, anti-LGBTQ, or anti-Semitic activity;D. The nominee has emerged as a major and influential ideologue on one or more issues of core concern to our Conference, and the appointment would likely contribute significantly to reshaping American jurisprudence or policy in a direction that would positively shape or jeopardize those core values;E. The nomination has engendered a national debate on one or more issues of core concern to our rabbinate so that the outcome of the confirmation or nomination is likely to be perceived as a referendum on that issue and will have significant implications beyond the individual nomination;F. The nominee’s confirmation would shift the ideological or policy balance of a particular court or independent agency on matters of core concern to our Conference.
3. The President and Chief Executive shall consult with the CCAR Board of Trustees or its Officers before supporting or opposing a nominee, unless urgency precludes such consultation. Guidance shall be sought from CCAR representatives to the Commission on Social Action. While the Union for Reform Judaism will follow its own procedures, and either the CCAR or URJ may act alone, CCAR and URJ may act together through the Religious Action Center of Reform Judaism and the Commission on Social Action.