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Shabbat Parashat Vayeitzei 5773

P'ninat Mishpat: Disqualifying Judges

(from Hemdat Mishpat, Ki Tisa 5773)

The question of what disqualifies a judge is intrinsically related to the question of what is required of a judge and is expected of the process of adjudication. It is also related to the matter of how not only to judge righteously but present the system of judgment before the broad public.

In the State of Israel’s official courts, hundreds of requests are made every year to disqualify judges from sitting in judgment in a specific case. First the request is made of the judge in question to determine his opinion on the matter. If the judge decides that he is fit to sit but a party appeals the decision, the issue is decided upon by the President of the Supreme Court. A study (Yigal Merzel, for the Lawyers’ Association) found that of approximately 180 appeals a year, less than 10% are accepted.

The decisions on the requests to disqualify have dealt with two types of issues: 1. the appearance of impropriety; 2. the possibility of an objective conflict of interest. Over the last several years, the first issue has declined as a serious factor, thus reducing the number of disqualifications, and the objective factor has grown in prominence. There are even times when the judge asks to disqualify himself and the President of the Supreme Court does not allow him to do so, preferring the objective prospects of justice over the judge’s subjective feeling of comfort to hear the case.

What does halacha have to say on the matter? Certainly, anyone who is disqualified from witnessing is disqualified from being a judge (Shulchan Aruch, Choshen Mishpat 7, 9). This includes relatives of the litigants and people who are unfit because of sins they have committed. Another situation is when the judge is impacted in some way by the outcome of the litigation. The Rambam stresses that even if the interest is remote, one cannot be a witness and certainly not a judge. This is a more stringent level for qualification than the Israeli law prescribes (Chok Beit Mishpat 77.a refers to a “significant monetary or personal interest”).

In halacha there are differences between the standards of impartiality for a witness and for a judge. One is allowed to testify about a case that involves his friend or his enemy (Shulchan Aruch, CM 33) but cannot serve as a judge for such a case (ibid. 11:7). The logic is that testimony is about plain facts, and we do not expect that someone will lie because he likes or dislikes someone. In contrast, a judge has to use finer judgment, which is not simply factual, and it is possible for one to subconsciously be influenced by feelings (S’ma 33:1). The gemara (Ketubot 105) tells of Amoraim who reclused themselves from judging based on small favors that one side did for them. One of them subsequently noticed that he was thinking about arguments that “his side” could have made, and declared: “How cursed are those who take bribes … for I did not take a bribe and still my thought process was affected.”

As mentioned, the secular courts are not as strict as this and apparently rely on the judge’s ability to overcome his inclinations based on his cognitive powers. Halacha looks more at the human limitations of the judges and is willing to be more demanding and less trusting.

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