Terrified of Judicial Reform
by Jonathan Rosenblum
May 2, 2008
Boxing may be dead but those who still savor the sight of heavyweights throwing roundhouse punches at a fast and furious pace could do worse than the current donnybroook between Justice Minister Daniel Friedmann and former Supreme Court President Aharon Barak.
The verbal fisticuffs between the two – like those between Barak and Richard Posner, one of America's leading jurists -- have performed a valuable public service by bringing to the fore a long postponed debate about the nature of the Israeli legal system. No longer can it be claimed that criticism of the Supreme Court is confined to proto-fascist, right-wing thugs. Friedmann is both an Israel Prize laureate in law and a man of the Left.
Just how long this debate has been suppressed can be discerned from the hysteria that has greeted Friedmann's proposals for reform of the judicial system. In a pre-Pesach interview with Ha'aretz's Ari Shavit, Barak predicted Friedmann would turn Israel into a "Third World country." At least he did not threaten to cut off Friedmann's hand, as did his former colleague on the Court Mishael Cheshin.
In the Ha'aretz interview, Barak accused Friedmann of seeking to dominate the entire legal system. But that is precisely what Barak himself did as Court President. He enforced uniformity of ideology and judicial philosophy throughout the judicial system, and now he seeks to bequeath to his protégé Dorit Beinisch the same power.
Barak expanded the Court's power exponentially by abrogating traditional legal doctrines of standing and justiciability to a degree unparalleled in the world. He admits as much in his interview with Shavit. And he unilaterally declared a "constitutional revolution" on the flimsy evidence of two Basic Laws passed in the middle of the night, after scant debate, and with less than a quarter of the members of Knesset voting. Ours is thus the first constitution discovered by a judge rather than emanating from solemn deliberation.
Barak employed his dominance of the judicial selection committee to prevent anyone who did not share his judicial philosophy from ascending to the Supreme Court. He fought the appointment of Ruth Gavison, an internationally renowned legal scholar, solely because she, like Friedmann and Posner, does not share his judicial philosophy.
Judges in the lower courts knew that their advancement depended on the favor of Aharon Barak. So did law professors who aspired to careers on the bench. And finally, so did the attorneys-general and state prosecutors who hoped to follow the traditional path to the Court. They faithfully snuffed out any who dared to challenge the Court's power. Justice Minister Yaakov Neeman, Reuven Rivlin when his appointment as Justice Minister was being mooted, and Bar Association president Dror Hoter-Yishai were all neutered on the basis of trumped-up indictments, quickly dismissed by the courts, or criminal files subsequently closed.
FRIEDMANN'S PROPOSALS do nothing to strengthen his power. Rather they are designed to reduce the power of the Court President to enforce uniformity. Extending the term of lower court presidents and deputy presidents from four to seven years, while doing away with reappointments, would increase the independence of the court presidents and remove their incentive to keep one eye perpetually cocked on the Court President. Taking away the selection of lower court presidents and deputies from the Court President and giving it to a committee of judges and ex-judges, would lessen the power of the Court President to enforce uniformity of thought over the entire judicial system.
Doing away with the practice of "temporary" appointments of lower court judges to the Supreme Court – a practice designed to allow the Supreme Court justices to ensure that would be colleagues can be counted upon to toe the line – would again open up the judicial system to more internal debate and fresh thought.
The Friedmann proposal that terrifies Barak most is that to end the chokehold of the sitting justices over appointments to the Court itself – a chokehold that Barak weakly justifies as necessary to preserve collegiality. Yet Barak admits that "most constitutional courts in the world are chosen by political bodies." And no democracy invests sitting justices with the power over the judicial selection process they exercise in Israel.
To justify the Israeli anomaly, Barak offers only the self-interested claim that the process has produced excellent justices. In addition, he argues there is a distinction between Israel and other democracies. They are civilized, whereas our politicians are a group of dangerous troglodytes ever eager to trample individual liberties – for instance, the right to marry citizens of an enemy entity and bring them to live in Israel.
Defenders of our current judicial system, Barak chief among them, claim that it is necessary to protect minority rights. But it turns out that the minority they are most eager to protect is the Court itself, and the "right" at stake is that of the Court to determine societal norms to an extent found nowhere else in the world.
When judges import new values into the system or effectively rewrite statutes according to their own lights, writes Barak, they are merely giving effect to the people's most cherished norms and standards. But if all he wanted to do was ensure that legislators legislate and executives execute in accord with fundamental societal values, he should be the foremost proponent of a constitutional court based on European models. In fact, he is the staunchest opponent.
The reason is that the values Barak and his acolytes want to enforce are not those of the Israeli people but their own. Last week's bizarre Supreme Court decision granting citizenship to Messianic Jews whose fathers are Jewish is a glaring example. The Court not only overturned its own precedent in the Brother Daniel case, but the Knesset's codification of that decision in Section 4A(a) of the Law of Return, that one who chooses another religion is not a Jew for purposes of the Law of Return.
Our Sages tell us kol haposel b'mumo posel
– one sees in another his own faults. Barak's accusation that Friedmann seeks to exercise total authority over the judicial system provides a powerful example of that ancient truth.
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