Rabbi Cookie Lea Olshein

What’s the best way to set up a legal system to ensure fairness for all? In Parashat Yitro, we hear Jethro, Moses’ father-in-law, giving Moses what one might call “a stern talking to,” saying that Moses’ decision to adjudicate every dispute himself was not working for the people. 

Instead, Jethro told Moses it was time to establish a system of courts: lower level courts, intermediate courts and then what we might consider the “ultimate Supreme Court,” one which gives its decisions after consulting directly with God.

Exodus 18:21-22 states: “You shall also seek out from among all the people capable men who fear God, trustworthy men who spurn ill-gotten gain. Set these over them as chiefs of thousands, hundreds, fifties and tens, and let them judge the people at all times. Have them bring every major dispute to you, but let them decide every minor dispute themselves. Make it easier for yourself by letting them share the burden with you.” 

From these verses, who qualifies as a potential judge? One answer comes from medieval commentator Abraham Ibn Ezra, who further defines the requirements as:

“Capable” people, meaning they were supposed to be physically able to withstand the task of judging; people who “feared God,” so they would not acquire a bad reputation as a result of whatever judgments they made; “trustworthy” people, literally people of truth who would not lie; and people who “spurned ill-gotten gain,” meaning people who would never accept bribes.

Whenever I read this verse and consider Ibn Ezra’s comments, I am reminded of my time practicing law (outside of Arizona), before attending rabbinical school. One day, the firm’s senior partner called me into his office to listen to a voicemail message left by a judge. In the voicemail, the judge mentioned that he noticed that our office had a case pending in his courtroom the following week … and he did not think our office had yet donated to his campaign. (Yes, we were both stunned by the implication of the statement.)

Here in Arizona, Superior Court judges are still elected in nonpartisan elections in 11 counties while four counties, including Maricopa, have used a merit system with periodic retention elections since 1974, according to data from azcourts.gov.

The Arizona Supreme Court states on its website: “The merit selection process promotes judicial impartiality and integrity because judges are not forced to solicit campaign contributions from, among others, attorneys who practice before them and people who might someday appear before them in court.” 

The Court gives six advantages for using the merit selection process:  (1) it promotes public accountability; (2) it produces a more highly-qualified judiciary as judges are selected based on their qualifications; (3) it fosters impartiality as it lessens the chance of qualified judges being penalized for unpopular decisions; (4) it encourages a more diverse bench; (5) it incorporates representative democracy as the nominating commission selecting applicants are both lawyers and non-lawyers; and (6) the retention process provides for continuous improvement of the judiciary by requiring regular setting of performance goals by the judges, as well as self-evaluation.

Unfortunately, since the time of Torah, we know too many stories where judges might not be “trustworthy” or might not “spurn ill-gotten gain.” So, what about the other 11 counties in Arizona? Don’t they deserve the same merit-based system surrounding judicial selection and retention?  Only when everyone has the opportunity to be judged fairly by the best available jurists will we have a truly fair legal system. Maybe it’s time for a change in the rest of Arizona. JN

Rabbi Cookie Lea Olshein is the senior rabbi of Temple Emanuel of Tempe.