Neal Hendel has journeyed from the Yeshiva of Flatbush to NYU to studying Talmud with the Rav to a Hofstra J.D. degree to picking strawberries on a kibbutz to a seat on the Israeli Supreme Court. Recently, in an event sponsored by Congregation Rinat Yisrael and Nefesh B’Nefesh, Justice Hendel discussed his journey and much more in a presentation entitled, “Justice in the Jewish State in the Eyes of an American Oleh.”
In a self-effacing and light manner, Justice Hendel shared how he ended up where he did (the idea of moving up from strawberries to kiwis was not as exciting a possibility for him as was practicing law) and his views on how to make a successful aliyah. Much of it, he opined, depends on truly wanting it to happen, speaking Hebrew well, being surrounded by family already there, and having a job waiting—things Justice Hendel emphasized he did not have.
The audience also received an oral primer on the Israeli Supreme Court. One major difference between the Israeli court system and the American one is that Israel has no intermediate appellate courts. Therefore, all cases originating in the District Courts, which hear serious cases, go directly to the Supreme Court together with appeals from the lower Magistrate Courts which it has discretion to hear. It also sits as a High Court of Justice, hearing cases of which it has original jurisdiction, primarily in matters regarding the legality of decisions of State authorities.
One result of these differences is that the Israeli Supreme Court has a tremendous case load which the court usually hears and decides in panels of three, and issues thousands of decisions annually. The U.S. Supreme Court, on the other hand, in a country with a population of over 317 million as compared to Israel’s 8.1 million, hears and decides, by the full 9-person bench, only about 75-80 cases a year—less than 1% of the cases which it is asked to decide.
There are also significant differences between how the justices are chosen. The U.S. system, especially in recent years, has become extremely political, and only politicians (the President and the Senate) are involved in the process of nominating and approving justices. In Israel, the system is more broad-based and committee centered; both politicians (two members each of the cabinet and the Knesset) and members of the legal world (the Chief Justice, two other justices of the Supreme Court, and two members of the Israeli Bar Association) are included in the committee which appoints the justices. And since the votes of a super majority of seven of the nine committee members are needed, consensus rather than political bickering becomes a focal point of the process.
Justice Hendel also shared his ruminations on comparative law and the use of law from other jurisdictions (including halakha) in deciding cases. He explained that his view, in contrast to the view of many U.S. justices (especially Justice Scalia), is that since law, unlike mathematics, has few absolutely right answers (though his characterization of mathematics was lovingly disputed during the question and answer period by his sister), it is helpful to look at other cultures to see how they deal with the often complex issues that are being adjudicated. The foreign law is not, of course, binding, but as Rambam, quoted by Justice Hendel, wrote, it is an important Jewish concept to “accept the truth from whatever source it comes.”
He then gave some examples of how halakha has been used by the court in analyzing difficult issues. One concerned the use of confessions, and Justice Hendel explained three different theories—from Rambam, Radbaz and R. Shimon Shkup—behind the unique halakhic rule that imposes an obligation on, rather than a right to, criminal defendants to remain silent, which precludes a beit din from accepting confessions as evidence in criminal matters. While these theories were not dispositive of the case before him, the significant psychological and juridical insights they provided on a difficult and complicated issue did give Justice Hendel a framework to think through the role of confessions in the criminal justice system. Perhaps, ironically, this partially halachic analysis resulted in a favorable decision to the Muslim defendant.
But the most profound message that was imparted to the audience came toward the end of the evening as a reminder that Supreme Court justices are human beings and not machines; they are children, parents, spouses, and friends, and these roles and life experiences have an impact on their thinking and how they look at issues before them. He told a moving story of a conversation he had with his son, at that time an IDF officer, shortly after he came back from active service leading troops in Lebanon. While Justice Hendel did not share the details of that conversation, what became clear was that it shaped his view of what war truly was and, as we all know only too well, war is, unfortunately, a fact of every day life in Israel and a recurring issue before the court. Indeed, earlier in the evening, Justice Hendel discussed how Israel’s commitment to law and morality resulted in the banning of the “neighbor directive” which allowed soldiers needing to enter a house sheltering terrorists to send in a neighbor first.
And there is one more difference between the U.S. Supreme Court and Israel’s. Out of the 112 U.S. Supreme Court justices, only 6 were born outside the U.S., and if you eliminate 18th century justices, there were only three, one of whom was born to American missionaries in Turkey. In Israel, though, having naturalized citizens on the court is not nearly as unusual, with justices having been born in Germany, Lithuania, Iraq, and the United States, among other countries. And Teaneck was privileged to host one such immigrant/oleh who rose to the highest possible judicial level. Yeshiva of Flatbush can legitimately kvell.
By Joseph C. Kaplan
