Sunday, September 26, 2010

Mad Men

During the summer and after a trial that spanned several years, a Jerusalem court acquitted Knesset member Tzarchi Hanegbi, formerly of Likud and now of Kadima, of fraud and breach of trust charges arising from political appointments made when he served as environment minister between 2001 and 2003 and by a split 2-1 decision convicted him of perjury for denying that these appointments were political in nature.

By Israeli criminal justice standards in high-profile cases, the Hanegbi verdict is a case of speedy determination, witness by contrast the nearly decade-long investigations of Foreign Minister Avigdor Lieberman and the endless and often trivial pursuit of Ehud Olmert, the former prime minister. I have no brief for either man, yet the expenditure of millions of dollars – and still counting – on these cases, as well as enormous manpower, is legal lunacy that should not be tolerated. When special prosecutor Ken Starr targeted President Clinton on a smorgasbord of charges, some quite serious, there was much protest about how much time and money the investigation consumed. In Israel, the pursuit of politicians is overtime activity.

The notion that political appointments can be criminalized absent any showing of bribery is bizarre, even Kafkaesque, and antithetical to the ideal of democracy which mandates that those who are victorious in elections run the government, subject of course to the protection of minority rights and against serious abuses. This doesn’t necessarily result in good government; that is the price to pay for democracy. The antidote is the ballot box and other political processes, not in criminalizing politics, and not, to borrow from Judge Learned Hand about whose court I once wrote a book, to have Guardian Angels protect us against democracy’s inefficiencies.

The anti-democracy movement in Israel, of which the Hanegbi prosecution is but one example, is fed constantly by the nation’s Supreme Court which has embraced authoritarian principles, including the authority to decide whether appointees to top positions are fit to serve. This is in fulfillment of the doctrine promulgated by Aharon Barak, the Supreme Court’s former President, that Israeli democracy must be saved from itself through judicial fiat.

Interestingly, the zeal to proscribe protekzia does not extend to the judiciary, including the Supreme Court, the branch of government that inherently is the least democratic. The selection process of Israeli judges has been controlled, from top to bottom, by the president of the Supreme Court and other judges who do his or her bidding. This is rotten to the core. Can we imagine an arrangement where Chief Justice John Roberts decides who should fill vacancies in our Supreme Court and lower federal courts?

In the Hanegbi matter, the judicial process has been weird. The verdict ran to more than 1,000 pages – this is not a typo – and the summary alone took 60 pages. That’s not all; the case is not over and not only because prosecutorial zealots may appeal in order to protect their cherished right to criminalize patronage. The time taken by the judges to decide on Hanegbi’s guilt and the War and Peace size of the verdict were not sufficient to determine whether his lying about the appointments constitutes moral turpitude which would require his ouster from the Knesset and being barred from public office. There will be another ruling about that.

This case is the first such prosecution and hopefully it will be the last effort to criminalize political activity, although this may be too optimistic to expect. When, as in Israel, the police-prosecutor-judicial triumvirate devote enormous resources to the targeting of politicians, there is severe collateral damage in the neglect of other criminal justice responsibilities, some that are very serious, including police corruption, ordinary crime and the continuing sordidness of Israel’s sex industry and the forced prostitution of hundreds and probably thousands of young women.

When judges spend years clinically examining the careers of the Hanegbis, there is a huge cost in the inability to do justice because other litigation is delayed. The dockets of Israel’s courts are chock full of cases that are awaiting attention and while this is a condition of all modern societies as litigation has exploded, the situation is about as bad as it can get in Israel.

Additional collateral damage arises from the disincentive for talented and conscientious persons to engage in public service, as they feel that if they did the police would quickly open a file on them. In an editorial challenging the Hanegbi prosecution, the Jerusalem Post cited a book by Professor Yossi Shain called The Language of Corruption in Israel’s Moral Culture whose theme is that “the Israeli judicial approach is counterproductive. It creates the impression that Israeli politics suffers from rampant corruption. This undermines the public’s trust of politics and politicians.” This judicially-created attitude leads, in turn, to the usurpation by the judiciary of responsibilities that belong elsewhere in democratic societies.

The Israeli penal code is overloaded with “Thou Shalt Nots” that while not mandating lashes for transgressors results in excessive prosecutions and prison terms. In this regard, Israel follows in the path of the United States. It’s time for Israel to join the ranks of civilized nations and stop criminalizing every misstep. Far greater reliance should be placed on civil penalties, mainly fines. My advocacy against excessive criminalizing of wrongdoing may be interpreted as tolerance of wrongdoing. That’s not the case. My point is that there are unintended wrongs and mistakes and minor wrongs and mistakes. These are factors that should be taken into account before there is a rush to prosecute.

Sunday, September 12, 2010

The American Jewish Congress Is No More

Fifty years ago I wrote an article on church-state separation for an Agudath Israel publication. About the American Jewish Congress, then American Jewry’s fiercest advocate of total separation, I wrote that it was scarcely Jewish and certainly not a congress. What I wrote about the American in its name is another question. While this early exercise in scribbling arose from my commitment to government aid to parochial schools, my view of the AJC was also shaped by an incident a year or two earlier when as a graduate student at NYU and working in the new field of judicial behavior under the guidance of my beloved teacher, Joseph Tanenhaus, whose son is the noted writer and editor of the Sunday Times Book Review, I analyzed amicus curiae (friend of the court) briefs in civil liberties cases to determine whether they added meaningfully to the legal arguments advanced by the counsel for the parties. My conclusion was that they did not, that they were essentially interest group pronouncements.

In the course of this research, I arranged to meet at the AJC with Leo Pfeffer, its then legendary general counsel – he is now all but forgotten – who was the country’s most prominent proponent of absolute separation. When I arrived and he saw the black yarmulka perched on top of my then curly black hair, the great civil libertarian sputtered and said that the meeting was a mistake. He was hostile throughout the meeting. Later, in the 1960s, when I was teaching at Hunter College and representing the Orthodox Union at what was then called the National Jewish Community Relations Advisory Council (NJCRAC), Pfeffer and I debated the government aid question a number of times.

In the 1950s, NJCRAC had commissioned Robert MacIver, the eminent sociologist, to examine the organizational structure of American Jewish life, an assignment that resulted in a report that received much favorable attention but no action, as MacIver recommended agency consolidation, bemoaning the duplication and the waste. Our communal response was to create additional groups, in fulfillment of the paramount American Jewish imperative, “Organize, Organize and Organize.” As I have written over the years, each day when the sun sets there are fewer American Jews than there were when the sun rose, yet there are at sunset more Jewish organizations than there were when the sun came up.

What advocacy could not achieve, economics has wrought. The American Jewish Congress is no more, another Madoff victim it said and also the victim of poor lay leadership. Presumably, we should celebrate, if only because at long last we are capable of organicide. I do not celebrate because although it was severely weakened over the past decade before Madoff took it to the cleaners, the AJC played a creative and moderating role in Jewish public affairs, moving away from the fantastic and fanatic notion that this great nation would be endangered if church and state would interact. The absolutists pounce whenever they scent an even tiny breach in their sacred wall of separation. The AJC has cautioned a more cautious approach.

What is left of the organization may now be incorporated into the American Jewish Committee, from which the AJCongress emerged nearly a century ago. We are left with the Committee and the Anti-Defamation League as the defenders of our faithless faith.

The AJCommittee is a study in organizational dissonance. In its research and scholarly activities, as well as in its publications, notably Commentary which remains a bastion of neo-conservatism, it has articulated a nuanced approach to public issues, including the place of religion in the public square. When engaged in litigation or advocating legislation, it invariably veers far to the left, leaving the impression that one part of the organization does not know what the other part is doing. This dualism may be a sign of tolerance. When it comes to legal and legislative issues concerning church and state, however, the Committee lines up with the absolutists.

Over the past two decades, the Anti-Defamation League has surged past the Committee in size and prominence. Adept and aggressive at public relations and fundraising which are far and away its major activities, the ADL feeds abundantly on our fear of anti-Semitism and the seeds of paranoia embedded in the psyche of many Jews. For all of its success, the ADL is astonishingly bereft of any intellectual instinct. It has made no contribution to Jewish thought and it has not produced as much as a single publication of lasting significance.

In line with its anti-intellectualism, the ADL is characterized by a high degree of internal discipline, which alone should make it suspect as a Jewish organization. Its boss is at least as much in control as the typical chassidic rebbe is in control of his flock. None of this would matter were it not for the antipathy to religion that is an ADL hallmark, contributing substantially to the defamation of American Jews as a people who are hostile to religion.

The AJCongress’ closure raises the question of whether other organizations will follow suit, particularly since economic conditions remain unfavorable. Unlike people, organizations often have a life after they are functionally dead. In the aggregate, younger Jews do not identify with the organizations that were critical in the lives of their parents and grandparents. New organizations reflecting their interests are coming into being. What about the old organizations? What about the vast and expensive Federation network? Change is overdue, as there is an urgent need to consolidate and to rethink the Federation concept.

There will be changes in our organizational life because life always brings change. We cannot be confident, however, that the death of the American Jewish Congress is a harbinger of other major organizations calling it quits.

Wednesday, September 01, 2010

RJJ Newsletter - September 2010

About fifty years ago, Rav Aharon Kotler invited me to seudas shlishis at his apartment in Borough Park, a block away from where I lived. It was shortly before the Elul zman or term was to begin and he was not in Lakewood for Shabbos. There was another guest, an elderly man who came from Kletzk, the Polish town near the Russian border where Rav Aharon had relocated the yeshiva that Rav Iser Zalman Meltzer, his father-in-law, had established in Slutzk on the Russian side of the border. Soviet officials had made it impossible to remain open in Slutzk.

At one point this man asked, “Rosh Yeshiva, we have a principle referred to as yeridas hadoros, that each successive generation declines in sanctity and observance from the standards of the previous generation. Is this valid? The Talmud tells us that in the First and Second Temple periods Jews committed grievous sins, including murder. Are we now killing people in the streets? How can we say that each generation is diminished from its predecessor?”

The Rosh Yeshiva was obviously not pleased by the question and did not offer an answer. Yet, the question struck me as reasonable. What, in fact, do we mean by generational decline? A possible answer occurred to me many years later when reading “From Berlin to Jerusalem,” the recollections of Gershon Scholem who grew up in a thoroughly secular German home and for a period became observant. Scholem writes about his joy when he began to study the Talmud, ascribing three extraordinary qualities to the sacred text: The remarkable economy of language used by the Sages, the recognition that what is being studied and the questions that are being asked were studied and asked one-hundred years, five-hundred years and a thousand years previously and would be studied and asked one-hundred years, five-hundred years and a thousand years in the future and, thirdly, the total fidelity of the Sages to the truth, so that if a colleague erred in word or deed, that is what was recorded without embellishment in the Talmud.

At that moment, I had the possible answer to the question asked of Rav Aharon. The decline of generations refers to the capacity of each generation to speak the truth about itself. In our generation, we constantly indulge in hagiography, in ignoring what is inconvenient and embellishing stories to make in action and words our rabbinical and lay leaders even more remarkable.

After this essay was drafted, I read Hamodia Magazine, a fine publication whose readership is primarily charedi. The issue included a long article, the first in a series on “America’s noble Torah families,” about a lay person who is no longer alive. It is astounding to read that this man who was born in 1909 on the Lower East Side did not attend yeshiva because “there were no yeshivos in New York in the early 1900s.” The Rabbi Jacob Joseph School was established in 1900 and enrolled five hundred students in 1910. There were other yeshivos, as well. There are also other misstatements in the article, all of which have the aim of making this person who lived a good life even more remarkable than he was. Unfortunately, this style of writing is common in our publications.

We seem compelled to sugarcoat, as if the exercise is some sort of mitzvah. This, I believe, is the essence of contemporary generational decline, a decline from the transcendent level manifested by our greatest teacher, Moshe, especially in the Torah portions that we read in the weeks prior to Rosh Hashanah, to the sad level evident in the present period. We are the generation of feelgood Judaism, the generation where what should be occasions for self-reflection become entertainments, as is evident increasingly on Tisha B’Av, kiruv weekends at luxury hotels and too many other experiences.

Feelgood Judaism seeks to elevate the externalities of religiosity so that they serve as surrogates for the internal piety that was the hallmark of previous generations of religious Jews. Just by looking at the photographs of pre-Holocaust family life in Eastern Europe can we have a sense of how far we are witness to generational decline.

This decline may be built into the ethos of the Jewish people, for each successive generation is further removed from the experience at Sinai. Even so, it is the obligation of Torah leaders to challenge the community, especially since it is evident that excess and sinfulness arise in large measure from contemporary standards and pressures in the societies in which we live. In a sense, there is a chemistry of sinfulness, notably in monetary matters and sexual behavior, in which the shortcomings that are elements of the human condition – ki yetzer lev ha-adam ra min’urav, the inclinations of man are evil from his youth – interact with debased contemporary standards to produce violations of what the Torah requires of us.

Wrongful behavior is inconsistent with Torah living, yet wrongfulness runs in our lives on a parallel track, as if the urges that impel us in that direction are as much part of us as our limbs. Of the remarkable incidents after the Exodus recorded in the Torah, nearly all of which are about the wrongdoing of our people, none is as astounding or as instructive of a profound and sad reality as the story of the Golden Calf. Just days after the never-again achieved spiritual heights reached at Sinai where we stood in total sanctity, we quickly turned away and were diminished – saru maher – and engaged in idol worship.

If sinfulness is an inevitable aspect of the human experience, including in the lives of religious Jews, Torah and mitzvos provide the antidote. Each mitzvah, whether negative or positive, and specifically including tzedakah and acts of chesed, is a restriction on our freedom by limiting what we may do with the resources at our command, whether they be our means, time, physical capabilities, mental capacity and so on. Feelgood Judaism is an insidious antithesis of proper Torah living by masquerading as appropriate, even desirable behavior. As a consequence, the seeming performance of a mitzvah may be devoid of the restraint that defines what a mitzvah is about. When we perform a mitzvah without the necessary restraint that is part of the mitzvah we are in the zone designated by Ramban as repulsive in the precincts of the Torah, meaning that a person can act and ostensibly live a life of Torah and mitzvos and yet act in ways that are repugnant.

We are not required to live as monks or as paupers. We are permitted and, at times, required to enjoy and benefit from the fruit of our labor and from the blessings that we have received. We can eat good food, have nice clothing, enjoy living in fine homes and find ways to be happy, provided that we understand that such blessings are a gift and because they are a gift we need to act with restraint. One aspect of this obligatory restraint is to give tzedakah.

Because of the deficiencies inherent in human nature, much of the character of the Jewish people depends on the quality of our leadership. This is not a license for ordinary Jews to behave as they may please in defiance of Torah standards. What it means is that the behavior of our leaders affects the behavior of our masses, a truth that has been abundantly evident in the two generations of the post-Holocaust American Jewish experience. We need only think of the impact on our community of the extraordinary Torah leaders who guided us in those years.

It is through a synthesis of personal effort and divine blessing that Torah leaders attain a measure of sanctity. They may not be entirely immune from human frailties that affect judgment and behavior, yet through their immersion in Torah study and their elevated midos they largely overcome these frailties. It is therefore their responsibility to lead and to challenge the rest of us to achieve a higher level of Torah observance and this specifically includes a greater degree of restraint. Without their tochocha, their willingness to rebuke, the standards of the community will be lowered. The example of leadership was set by Moshe, the greatest of our leaders. After each untoward incident, he sharply rebuked the Jewish nation and this continued throughout the forty years in the desert until literally the end of his life. In the Torah readings in the weeks before Rosh Hashanah, there is time and time again the message that when the Jews will enter the land that has been promised to them, they must be careful not to lapse into behaviors that could result in the forfeiture of that land.

With but one exception, after each wrongful incident in the desert, Moshe intervened on behalf of the Jewish nation. There was punishment and then forgiveness. The exception is referred to in the Torah as Kivroth Ha-Taavah which can be translated as the graveyard of excessive desire. Because they craved fresh meat and other delicacies and were tired of a regiment of Manna, the Jews rebelled. As compared with the Golden Calf, the episode of the Spies and its aftermath and several other incidents of rebellion against
G-D and Moshe’s authority, Kivroth Ha-Taavah seems to be a minor affair. In fact, it was an epic leadership-changing experience. Rather than just once more rebuking those who sinned, Moshe throws in the towel, at least partially, saying that he can no longer lead this difficult nation. This resulted in the appointment of the Seventy Elders who were invested with a share of Moshe’s authority. This was followed by a plague and punishment, but unlike other occasions of defiance, Moshe did not pray for the plague to cease. He did not intervene. Nor are we told how many died, again unlike the other incidents.

This is the story known as Kivroth Ha-Taavah. What exactly is the place that was named Kivorth Ha-Taavah? Where was it located? Why did Moshe refuse to intervene? Why is there no tally of the casualties?

Kivroth Ha-Taavah is that place, in whichever generation or location, where Jews are engulfed by excessive desire. The sin of idol worship or sexual immorality for which the Jews were punished severely in the desert is obviously greater than the craving for food or luxuries. But those sins have boundaries. When the passion to sin has been sated, it is, in a sense, a return to normalcy, until the next episode which likely will be a repeat of its predecessor. This is not true of ta-avah, excessive craving. There is no boundary and such desires are dynamic, meaning that whatever was craved for previously is a prelude to even greater desires. That is the reason why Moshe gave up. That is the reason why no reckoning of the dead is provided. The toll just kept on climbing.

The craving for food or luxury or another experience that is above the ordinary is a universal instinct, an aspect of our physical and emotional make-up. How this craving is expressed is determined by the environment, as Rambam taught in his laws regarding ethical behavior. This is the phenomenon that we identify as conspicuous consumption. Doubtlessly, in the shtetls of Eastern Europe and other places of Jewish settlement over the generations, there was the phenomenon that is referred to as ta-aavah or excessive craving. However, circumstances, including poverty and the lack of social and geographic mobility, imposed restraints on most Jews. An additional barrier of restraint was provided by an innate sense of piety.

The generational decline we are witness to is manifested through a lack of restraint and this impacts, in turn, on the giving of tzedakah. Whatever the degree of fulfillment of this obligation was in previous generations, the contemporary situation is clearly worse and continues to deteriorate. Fewer religious Jews are giving an appropriate amount of tzedakah. As I have noted elsewhere, Rav Moshe Feinstein, ztl, said as much in a tshuva published a generation ago. Without a doubt, the situation is worse today. When ta-aavah and tzedakah are in competition, invariably it is the latter that is the loser.

One of the hallmarks of our contemporary religious life is that we can have our cake and eat it, or so we believe. The yielding to excessive desire does not on the surface always require the abandonment of religious obligations. We can have glatt kosher and be in the lap of luxury, as, for example, when tens of thousands – including respected Rabbis – make their annual exodus to hotels for Pesach or in the rapidly growing number who feel impelled to take luxury cruises because, after all, that is what their friends have done and, besides, what better way to spend one’s money?

This is the essence of feelgood Judaism. There are costs, although they are not necessarily apparent or it is convenient to disregard them. One certain cost is the diminished giving of tzedakah, notably in the ranks of comfortable but not especially affluent religious Jews. I know people who have plunked down thousands for Pesach or cruises for whom writing a modest tzedakah check to a yeshiva is about as difficult as mountain climbing.

There are persons who properly allot a share of their income to tzedakah. These are mostly affluent individuals, some of whom exceed by a wide margin the maaser requirement. Poorer persons in the chassidic and yeshiva-world sectors also are careful to give tzedakah properly. Our Achilles heel is our middle class, especially its upper range, where, as is true generally in American life, there is a craving for the good life.

Whether adequate or not, in allocating tzedakah funds, yeshivas and day schools often are assigned a low priority, as chesed causes that inherently have a strong emotional appeal trump Torah education. This is understandable, yet it is a manifestation of the feelgood phenomenon. We feel good about supporting chesed causes because, after all, we are doing a noble thing by helping persons who are needy. This kind of feeling does not inhere in the giving of tzedakah to Torah education. Rav Aharon Kotler used to say about support for Torah chinuch, lav kol adam zocheh, not everyone is privileged to understand the importance of giving to yeshivas and day schools. Irving Bunim of blessed memory frequently echoed the same message.

Feelgood Judaism conditions us not to question the legitimacy or appropriateness of chesed appeals. Mishpacha Magazine, another fine publication, regularly runs ads placed by Israeli tzedakahs that convey messages that are offensive to the truth. One recent ad, on behalf of Kupat Hair, an organization that raises many millions each year, proclaims, “For the first time since the time of Moshe Rabbeinu 40 consecutive days and nights of tefillah without a moment’s let-up!” Can we imagine a yeshiva placing an ad claiming that the level of learning at the institution has never been equaled since the Jews stood at Sinai?

It is the responsibility of our Torah leaders to constantly advocate support for yeshivas and day schools at all levels. For a generation, they inadvertently conveyed the wrongful message that basic Torah education is essentially a parental obligation and not a tzedakah priority. Is it surprising that this message received a favorable reception in many religious homes?

What is remarkable about this is the departure from the lesson taught by the transcendent Torah leaders of recent generations. A third volume of the letters of Rav Chaim Ozer Grodzienski, the paramount leader of the yeshiva world in pre-Holocaust Europe, has just been published. There are many letters pleading for support for yeshivas at all levels. There surely were multitudes of needy Jews in Warsaw and Vilna and organizations to assist them. Rav Chaim Ozer was a man of extraordinary kindness. Yet he knew that his primary obligation was to assist Torah institutions.

I have written often about the similar course taken on these shores by the great Rosh Yeshiva of Lakewood who toiled tirelessly on behalf of Torah Umesorah and American day schools and Chinuch Atzmai in Israel. Exhausted as he was, he strove to help institutions at the elementary school level. I will never understand why American Roshei Yeshiva veered from this course, why or how they allowed themselves to be in the position of sending a contrary message.

A new school year is opening. The strong indication is that it will be more difficult than its two predecessors which were themselves quite challenging, as a great number of schools are struggling to meet their obligations. More parents are saying that they cannot pay full tuition or anything close to it. Contributions are down sharply. There are reasons to be concerned because in key day school sectors, including kiruv and immigrant schools, enrollment has declined significantly.

The good news is that Roshei Yeshiva and community leaders are awakening to the situation and seem to be more cognizant of their responsibility to advocate support for basic Torah education. Admittedly, it will not be easy to break the harmful mindset that support of this education is essentially the responsibility of parents and there is scant need for tzedakah funds to go to ordinary yeshivas and day schools.

Reversing the wrongful attitude will not occur overnight and probably not for several years, at best. The effort must begin now and that effort must be predicated on the willingness to challenge the atmosphere of feelgood Judaism which is at the root of what may be termed the tzedakah crisis. Unless there is a willingness to challenge feelgood Judaism, we shall be in the territory known as Kivroth Ha-taavah. In that territory, as Moshe taught in the desert, no words of tochocha or admonition will avail. Rather, the situation will continue to deteriorate, as there will be even greater dereliction in the fulfillment of tzedakah obligations and greater pain in the yeshiva and day school world.