Lessons from the Elyagon fiasco
by Jonathan Rosenblum
September 8, 2000
About one thing both Supreme Court President Aharon Barak's admirers and critics agree: He is an extremely astute politician.
What, then, could he have been thinking of in trying to appoint Oded Elyagon to the Tel Aviv District Court?
Nothing is more crucial to the legitimacy of the legal system than that it be perceived as absolutely neutral in its treatment of citizens and groups of citizens. Justice Barak acknowledges as much with oft-repeated assertion that "judges in Israel administer justice without any political or partisan bias."
Yet, as Barak is well aware, many do not view the government legal system as impartial, and their ranks are not limited to Sephardim and haredim. Hebrew University Professor Ruth Gavison noted the widespread feeling "that an element of persecution is present in the system. The system denies this, but the denial is no longer convincing because the accumulation of cases is too great. It arouses suspicion...."
It would be hard to think of an appointment more likely to fuel such perceptions of bias than that of Elyagon. On more than one occasion, he has publicly likened haredim to "parasites" and "very large lice," most famously in a speech delivered in Barak's presence. Afterward, Barak complimented Elyagon for having spoken so well. Only much later, after a public outcry, did he let Elyagon off with the mildest of reprimands.
Remarks disparaging whole sectors of the population should have led to Elyagon's dismissal from the bench. As Tom Segev pointed out in last Friday's Ha'aretz, Israel recalled its ambassador from Austria for less offensive remarks by Joerg Haider.
If his insults directed at the haredim were the only strike against Elyagon, his promotion might well have gone through. But, in addition, he had shown himself completely lacking the "patience, tolerance and respect for others" required by Israel's regulations on judicial selection. He once told a party whose disabled attorney could not reach the third floor of the Beersheba court building, which lacks an elevator, that he "should have thought about that before he decided to become a lawyer."
In the United States, where access by handicapped persons to public buildings is mandated by law, such gross insensitivity toward a handicapped person would have almost surely doomed that judge's career. Here, Elyagon was pushed for promotion by the chief justice instead.
In response to a number of petitioners, including myself, the Committee on Judicial Appointments this week postponed consideration of Elyagon's appointment until December - a rare setback for Barak.
Justice Minister Yossi Beilin, who has made a mission of improving the civility shown by Israeli judges, strongly opposed the appointment. In fact, Beilin has lately become the last bulwark against Barak's hegemonizing tactics. Though his ultimate vision for the State of Israel may differ little from Barak's, Beilin is a democrat, and as such opposed to the imposition of any social vision by one man and his factotums. Beilin recognizes Barak's insatiable lust for power. Barak is not content with his complete dominance of the process of selecting new judges to the Supreme Court, which enables him to ensure his legacy in perpetuity. Nor even with a power enjoyed, as far as I know, by no other chief justice in the world, to personally select the panel in every case, and thereby determine the result.
In recent years, under the guise of protecting judicial independence, he has pushed an initiative that would give him the power to appoint judges to newly created administrative courts, and another that would make him the chair of a committee to select all new judges.
No other chief justice in the world possesses such powers.
The Or Commission, appointed by Barak, proposed a dramatic restructuring of the judiciary that would remove from the Supreme Court many of the normal appellate duties of high courts around the world. Statutory interpretation and clarifying legal rules when lower courts are in conflict is too mundane for our justices. The Or Commission recommendations would free them for their favorite task of deciding the existential questions confronting Israel, which increasingly involve naked value preferences.
Beilin is the first counterweight to Barak since the latter began his tenure as court president.
But even Beilin's momentary victory over the Elyagon appointment cannot hide the essential problem of a system in which one or two people control all judicial appointments, as is currently the case in Israel. With each new appointment, the newspapers discuss the political negotiations between Barak and Beilin over their respective candidates. Our Supreme Court is the most powerful in the world, and yet the choice of new justices is a low-visibility one reminiscent of the horsetrading of Tammany Hall pols selecting candidates in smoke-filled rooms.
One suspects, for instance, that Barak is intent on securing a permanent appointment to the Court for Eliezer Rivlin in order to gain the support of Rivlin's cousin, Likud faction head Ruby Rivlin, for an expansive new constitution.
Control over judicial appointments is used to stifle all criticism and dissent throughout the legal system. Private attorneys, law professors and lower-court judges know that showing any independence of the chief justice can mean the end of their career advancement. In a recent symposium at the Israel Democracy Institute on the Or Commission, Justice Minister Beilin charged that judges, practicing attorneys and academics warned against the proposed reforms in private discussions with him, after remaining silent in public.
Most importantly, the centralization of the judicial selection process leads to a court in which there is no intellectual clash now nor for the foreseeable future. Yossi Beilin and Aharon Barak hardly exhaust the range of visions for Israel as the Jewish and democratic state.
As the court to an ever larger degree decides political questions "cloaked in legal dress," in Justice Barak's words, it is vital for Israeli democracy that those decisions be made by a court that reflects the viewpoints in the Israeli population.
The alternative is judicial dictatorship.
Related Topics: Israeli Supreme Court
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