Turnabout – A Purim Story for Our Time
by Jonathan Rosenblum
February 28, 2007
The story of Purim is one of dramatic reversal. When Haman came into Achasherosh's palace seeking permission to hang Mordechai, he had every expectation that his request would be granted. His status as the most powerful official in the empire was unchallenged, his every wish ratified by the king's command.
This time, however, not only did he fail to gain the permission sought, he found himself leading Mordechai around on the king's own steed that very afternoon. A series of apparently random events – Vashti's refusal to appear at the Achashverosh's banquet, Esther's selection as queen, the plot to assassinate Achashverosh overheard by Mordechai – are suddenly revealed to have set the stage for Haman's downfall and the salvation of the Jews.
Today we are witnessing a similar reversal of fortune in Israel. Under Court President Aharon Barak, the reign of the Supreme Court over Israeli life appeared immutable. Israel's unique system of judicial selection gives the justices of the Supreme Court the power to veto any candidate not to their liking. Thus Barak had the power to ensure that only justices sympathetic to his judicial hyperactivity made it to the Court, and thereby turned the Court into a self-perpetuating cult.
Meanwhile, a fawning media labeled any critic of the Court an "enemy of the rule of law." And any justice minister who threatened the hegemony of the Court quickly found himself under criminal indictment – most notably Yaakov Neeman, who was forced from office on wholly trumped up charges brought by then Attorney-General Michael Ben-Yair.
Chaim Ramon, who came into office with a mildly reformist agenda, joked, at a private dinner party 12 hours before the events leading to his ouster, that he better be careful or something might happen to him. He wasn't, and it did.
A CONCATENATION OF EVENTS WORTHY OF PURIM now threatens the power of the Court under Barak's successor Dorit Beinisch. Beinisch shares Barak's judicial philosophy that everything is justiciable, but she lacks his brilliance, charm, and diplomatic skills. She can neither awe nor cajole the press or politicians with anything approaching Barak's skill.
In 2004, Beinisch vehemently opposed the nomination of Professor Nili Cohen to the Court, in order to ensure the appointment of Edna Arbel, her close friend and successor as state attorney. Beinisch's successful efforts to block Cohen have now returned to haunt her. They turned Israel Prize winner Professor Daniel Friedmann, a close friend and colleague of Cohen, into her sworn blood enemy. Since 2004, Friedmann has filled the op-ed pages with biting criticism of Beinisch and every aspect of the judicial system that produced her.
In a modern day parallel to Achashverosh's selection of Esther as queen, Prime Minister Olmert appointed Friedmann to succeed Chaim Ramon as justice minister -- an appointment in the eyes of the legal establishment roughly equivalent to choosing Tommy Lapid to head the rabbinic courts. Those who did not want Ramon as justice minister are now confronted with someone far more threatening in his place.
Friedmann has criticized the Supreme Court's diminished role as a court of last appeal in both criminal and civil appeals, and charges that few of its current members have any substantial expertise in these areas. He laments the Court's constant forays into public policy, using a standard of "reasonability" to substitute its judgment for that of every elected or appointed public official, and the vitiation of the traditional rules of standing and justiciability that the Court has used to expand its power over every aspect of Israeli life.
Friedmann has proposed taking away the Court's power to strike down Knesset legislation, and conferring that power on a constitutional court. That constitutional court would presumably to be very different in composition from the current Court and far more representative of the values of the general population. He also calls for an end of the stranglehold on the Supreme Court justices on the judicial appointments procedure, and can be counted on to fight hard for his own candidates, including Cohen and long-time Court critic Professor Ruth Gavison. He is, in short, Beinisch's worse nightmare.
But why did Prime Minister Olmert, who has never been a critic of the Court's judicial activism, appoint Friedmann? Olmert is known as a loyal friend. The appointment of Friedmann can be seen as an act of revenge against the legal establishment for ousting Ramon. More to the point, Olmert is currently the subject of half a dozen current or potential criminal investigations, and wants to show the legal establishment that he does not lack means to defend himself.
Finally, the unanimous cabinet approval of Friedmann's appointment, and the generally favorable response of the press, represents the triumph of the lonely crusade against the excesses of the Court waged by a handful of figures over the past decade: Professor Ruth Gavison, former Court President Moshe Landau, MK Ruby Rivlin, the Jerusalem Post
's Evelyn Gordon, and Maariv
op-ed editor Ben-Dror Yemini.
In a hysterical response to Friedmann's appointment, Justice (ret.)Mishel Cheshin, the recently retired vice-president of the Court, threatened, "If he raises a hand against my House, I will cut it off." Cheshin, and all those like him long accustomed to viewing the Supreme Court as the property of the "enlightened" few, may Ahave to learn that in a democracy the Supreme Court belongs to all.
And that truly constitutes a Purim story for our time.
Related Topics: Israeli Supreme Court
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