The NBA and the Elul Wager

Justice came quickly for NBA veteran referee Tim Donaghy, who pled guilty recently to betting on games at which he officiated and sharing his predictions on the point spread with professional gamblers. Donaghy, who admits to a serious gambling problem, is now looking at a half-million dollar fine and a thirty-thousand dollar restitution judgment against him. The trial he faces could land him in prison for twenty-five years.

Donaghy’s behavior sullied the reputation of professional basketball, not just the games he called. Americans take their sports seriously. His behavior was a serious breach of public trust, and the swift retribution is understandable.

Less understandable is why others mired in conflict of interest walk away unscathed. Consider the prominent judge who sat on a panel asked to consider the charge that Vice President Cheney had pandered to outside interests in formulating Federal energy policy. Some thought this judge ought to have recused himself after being flown on Air Force One to a hunting weekend, along with two family members. He didn’t, and there were no consequences. Perhaps, given Cheney’s hunting record, Justice Antonin Scalia thought there was punishment enough in being close enough to the VP that he could have been mistaken for a duck.

A different judge, sitting on the 1st Circuit Court, did not recuse himself from a case that came before him regarding the limits of Superfund liability. The decision that he signed on to became a benchmark in restricting the EPA’s access to Superfund assets. The jurist did not see any conflict in the fact that he was a “Name” for Lloyd’s of London, which means that a good deal of his personal fortune was potentially at stake if plaintiffs were allowed to raid a Superfund’s cookie jar. Professor Monroe Freedman, a Harvard-trained authority on legal ethics, testified against this judge at his Senate confirmation hearing, arguing that the failure to recuse was a serious moral breach. Stephen Breyer, however, won confirmation to the country’s highest court without ill effect.

Does the law expect too little from judges weighing their own potential conflict of interest? I spoke with Professor Freedman last week, and he assured me that this was not at all true. The Federal statute – as well as the ABA’s Model Rules in most states – sets a strict standard. A judge is certainly supposed to recuse himself if some material connection to a case would be sufficient to turn his head a bit. Even if it wouldn’t, he is supposed to step aside if it might appear to do so in the public eye. If a judge does not recuse himself, his decision is subject to review. Important cases have been thrown out because judges should have stepped down, and didn’t. But there are also cases in which no one notices, cares, or challenges the judge.

The Torah has a different standard, arguing that judges cannot determine if their potential benefit from the outcome of a case will or will not cloud their judgment. According to the Gemara (Kesuvos 105B), there are no two options. Benefit, self-interest are certain to cloud judgment. People are subconsciously disposed towards those who have benefited them. (As the Gemara wryly observes, the term shochad, bribery, can be seen as a contraction of shehu chad – he becomes as one with the other party.) The benefactors become incorporated into the identities of the recipients, and people don’t have a good record of finding arguments that run afoul of their own best interests.

Even non-material benefit can devastate impartiality. The Gemara argues that if one of the litigants performed some small servile act for the judge, like extending a hand to help him on to a bridge, he has reason to recuse himself [See Derisha and Bach, Choshen Mishpat 9 as to whether this is an act of piety, or a legal requirement.]

Bribery, then, need not be material, and it not be linked explicitly to an expectation of foul play. If anything, the unstated expectation, the unconditioned gift is more insidious, because the recipient can easily deny its effect upon his thinking. (Perhaps this is the meaning of “shochad blinds the eyes of the wise, and confuses the words of the righteous. If Tony Soprano offers me a deal I cannot refuse before presiding over his trial, I may be evil, but I am hardly blind or confused. I realize full well that I am throwing the trial in expectation of some reward. The non-obvious bribe subconsciously warps thinking and destroys impartiality, and is harder to guard against.)

Shochad at its most damaging affects all of us, not the judges and juries. When we strive to improve ourselves in our avodas Hashem/ service of G-d, we become aware of just how many “trials” we preside over in the course of a day, moving quickly from one moral decision to the next. All too often decisions are helped along through palms greased by our own self interest. It is easy to tell ourselves – for the sake of Heaven of course! – that we had better not get out of bed and go to minyan. We need the extra half hour of sleep. After all, we had a cold a mere eight months ago, and the additional sleep will certainly be beneficial to our complete recovery. By the time the Nth meshulach walks through the door, it is easy to convince ourselves that one more check will certainly doom us to spending our senior years pushing our material possessions down the street in a shopping cart.

In decision after decision, we bribe ourselves by subconsciously cashiering our objectivity in favor of a hidden agenda that suits our needs. Rav Elchonon Wasserman zt”l saw this kind of bribery behind the most crucial decision of them all: whether to accept or reject Divinity. Too many people avoid the evidence and the arguments that would otherwise force them to take G-d seriously simply because deep (or not so deep) down, it is more comfortable for them not to have to worry about some Authority to Whom they are constantly responsible.

The most difficult kind of self-interest to escape, perhaps, is intellectual and spiritual inertia. Challenging the ideas and premises – conscious and preconscious – with which we face life every day is enormously painful. It is easier to sluggishly spin our wheels than to have to reexamine patterns of thought and action that we have grown comfortable with, even if they consign us to a mediocre existence. We even prefer to live with acknowledged faults than to completely reexamine the premises with which we have labored for years or decades. Who needs that kind of pain? So we may get ourselves to try to daven a longer shemonah esreh in Elul, but it is less likely that we will ask ourselves whether we are cheerful enough, or kind enough, or generous enough, or vigorous enough. It is even less likely that we will open ourselves up enough to question the rationalizations we depend upon to accpet our failings, the private “deals” we believe we have made with the Ribbono Shel Olam. Our self-interest in not exploring some issues leaves us thoroughly blind to the urgency for change.

We all do, of course. Through Hashem’s chesed, we are given an opportunity each Elul to make amends, to right the wrongs. It can be an opportunity squandered if we succumb to the self-inteest arguments to deny and to delay. Elul’s potency is getting us to examine the big picture, the very context of our lives, which is probably one of the reasons that so much of Rambam’s Hilchos Teshuva deals with the theoretical underpinnings of our free will and our relationship with Hashem, and not straightforward mussar.

We can avoid the discomfort, and try to improve ourselves without considering the Xtreme Makeover. We can focus on a wish list of our perceived inadequacies, and address them individually, hoping to craft a better person.

It can, I imagine, work for some people. But I wouldn’t bet on it.