Chutzpah in the Court

It has been years since the word chutzpah has appeared in the verdicts of American courts, but in 2004 is made its debut in a verdict of the U.S. Supreme Court.

It has been years since the word chutzpah has appeared in the verdicts of American courts, but in 2004 is made its debut in a verdict of the U.S. Supreme Court. Justice Antonin Scalia, a Catholic who grew up in New York and who is the prototypical representative of the conservative wing of the Supreme Court, used it in a verdict that dealt with government financing of art institutions and its effect on freedom of expression. The word, which finds its etymological roots in the Talmud and penetrated American English by way of Yiddish, is a favorite with judges and members of the press, who feel that no other term comes close to describing the thin line between audaciousness and impudence.

We are currently witnessing a great deal of activity - even "Jewish chutzpah" in the sense of audaciousness - of Jewish organizations that are involved in the political process of appointing judges to the U.S. Supreme Court. This activity is more intensive than in the past, and is indicative of the increased competition among the organizations for public attention but also of a substantive ideological disagreement. It is obvious to all that the decision on the makeup of the Supreme Court can have significant influence on the form that American society will take for many years to come.

In July, upon the retirement of Justice Sandra Day O'Connor, President Bush announced his candidate to replace her: John Roberts. On Tuesday, following the death of Supreme Court Chief Justice William Rehnquist, the president announced Roberts' "upgrade" to serve as the Chief Justice. Bush - who is under pressure from the sharpest criticism leveled at him since he entered office, due to his handling of the tragedy in New Orleans - is no doubt trying to demonstrate decisiveness and control of the Supreme Court nominations.

The public debate on the new justices reveals more than ever before the increased division among American Jews and its various religious and social factions. In the past, one heard only one voice sounded by the Jewish public - a liberal voice that called vigorously for the separation of religion and state, and a considerate, even radical, social approach by the Supreme Court to minorities and weak population groups. Many liberal Jews watched with concern as the court - under Rehnquist, with Scalia and Clarence Thomas at his side - moved in a conservative right-wing direction. Now we are hearing voices in the Jewish community in support of the conservative line.

The National Council of Jewish Women openly came out against Roberts' appointment, and its members swooped down on the homes of the members of the Senate Judiciary Committee while Congress was still in recess. They wanted to make clear how opposed they were to the appointment.

The Reform movement was more sophisticated, and without taking any public stand hinted at its reservations vis-a-vis the appointment, and sent members of the Judiciary Committee questions to put to Roberts at his hearing.

The Anti-Defamation League is also seeking clarification of Roberts' views, particularly on separation of religion and state, the preservation of which it supports. Professor Alan Dershowitz, the attorney known for his book "Chutzpah" about American Jewry which was a bestseller over a decade ago, created a storm this week when he accused Chief Justice Rehnquist of "judicial activism" and as being a Republican thug, and even alluded to the chief justice's anti-Semitic leanings.

One surprise weigh-in was Judaism's Conservative movement, which provoked a storm among its members and among liberals in general when it announced that Roberts was "qualified" to the post.

In the current round, it was the Orthodox movement that openly took up position opposite the liberal wing. It announced that it could see nothing wrong with Roberts' conservative stands on religion and state. The Orthodox are by nature close to the conservative Republican line, which backs funding of religious schools and not only public schools, as per the American tradition. Rehnquist spearheaded an initiative that opened the door to fiscal support of religious schools, and in 2002 the court approved the underwriting of teaching aides and computers in Christian and Jewish religious schools. He also authorized prayer at sports events and graduation ceremonies, and the Supreme Court permitted the placing of Hanukkah menorahs and Christmas trees in the public thoroughfares of a city.

Conversely, Rehnquist caused discomfort among Jews when in 1986 he wrote the majority opinion in a verdict that forbade a chaplain in the U.S. Air Force from wearing a skullcap. But the decision by Rehnquist that sparked the most controversy in recent years - the one for which his critics bestowed on him the "chutzpah" title even before Justice Scalia used the word - was a verdict handed down by a majority headed by Rehnquist to grant the victory in the 2000 national election to George W. Bush, following the vote-counting scandal in Florida.