Turnabout – a Tale for Adar

Just as Haman’s power over 127 states appeared beyond challenge, so did the reign of the Supreme Court over Israeli public life seem immutable, until just recently. Israel’s anomalous judicial appointments procedure gave the three Supreme Court justices on the judicial appointments committee virtual veto power over any candidate who did not share the views of Court President Aharon Barak and his acolytes on the Court. Thus the Supreme Court was turned not only into a sort of "cult," in Professor Ruth Gavison's words, but a "self-perpetuating" one at that.

A fawning media deflected every attack on Barak or criticism of the enormous power wielded by the Court by labeling the critic an enemy on the "rule of law." (The "rule of the judge," former Deputy President of the Court Menachem Elon tartly observed, would have been a more accurate description.)

Any justice minister threatened the hegemony of the Supreme Court, promptly found himself out of a job. When Yaakov Ne’eman, who is both religious and one of Israel's most respected attorneys, was appointed justice minister, then Attorney-General Michael Ben-Yair (according to journalist Uri Elitzur) told the senior staff in the State Attorneys office that this dog would not be allowed to leave deep scratches on the furniture. A trumped up indictment was promptly produced against Ne'eman. Though he was quickly acquitted, with the trial judge severely censuring the prosecution, Ben-Yair had achieved his purpose: Ne'eman did not return to the justice ministry. His place was taken by Tzachi Hanegbi, who was under criminal investigation his whole term in office, and thus only too eager to do the bidding of Justice Barak, who would likely be sitting on his appeal some day.

Chaim Ramon, who came into office with a mildly reformist agenda, joked at a private dinner, just 12 hours before the events that led to his criminal indictment and conviction, that he better be careful or something was likely to happen to him, as it has to every justice minister who tried to shake up the system. And it did.

NOW BARAK IS RETIRED, five vacancies remain to be filled on the Court, and Professor Daniel Friedmann, one of the Israel's leading jurists (and an Israel Prize Winner), who has emerged as one of the fiercest critics of just about every aspect of the government legal system, has just been appointed justice minister. Friedmann has made it clear that he will not rubber stamp the justices' choices for new colleagues, as has been the custom of past justice ministers.

How did this sudden reversal come about? Just as a concatenation of apparently unrelated events – Vashti’s refusal to appear at Achashverosh’s banquet, the choice of Esther to succeed her, Mordechai’s overhearing a plot against Achashverosh – brought about the salvation of the Jews of the Persian Empire, so did a serious of apparently unconnected events bring about this latter day reversal.

First, there was the retirement of Court President Aharon Barak. His successor Dorit Beinisch may be cut from the same ideological mold, but she lacks Barak's brilliance, charm, and supreme political skills. She can neither awe nor cajole the press and politicians with anything like Barak's skill.

But there is another element to the story. In 2004, Barak proposed Professor Nili Cohen for a vacancy on the Court. Justice Beinisch, however, wanted to ensure the appointment to the Court of Edna Arbel, her successor as State Attorney and close friend, and she feared that the appointment of another woman at that point would dim Arbel's chances. She therefore vehemently opposed Cohen's appointment, and since the three Supreme Court justices on the appointments committee always vote together, she eventually had her way in keeping Cohen off the Court.

That, however, turned Professor Friedmann, a close friend and colleague of Nili Cohen, into Beinisch's sworn blood enemy. He subsequently wrote in Yediot Aharonoth, "The high quality of [Professor Nili Cohen's] candidacy could only be offset by a campaign of baseless libel. It was not beneath the Supreme Court to wage such a campaign, even when it meant violating the basic rules of fairness which the Court demands of others."

Since 2004, Friedmann has filled the op-ed pages with biting criticism of Beinisch and almost every aspect of the judicial system that produced her. His appointment as justice minister represents Beinisch's worst nightmare come true. The late journalist Uri Dan once predicted that "those who don't want Ariel Sharon as defense minister will one day have him as prime minister." Today that line is paraphrased: "Those who did not want Chaim Ramon as justice minister will now have Daniel Friedmann."

From the point of view of the legal establishment – i.e., the unholy alliance of the Supreme Court, the Attorney General, States Attorney office, and the police – Friedmann's appointment, quipped Ha'aretz's Yossi Verter is comparable to Tommy Lapid being appointed head of the rabbinical courts or Tali Fahima (convicted of aiding and abetting Palestinian terrorists) to head the security services. MK Yossi Beilin is for once not far off when he says that Friedmann is not someone who has criticisms of the legal system, but rather some one who has "no faith whatsoever" in the system.

Still the question must be asked: Why did Prime Minister Ehud Olmert appoint Friedmann? Olmert has never, in the past, been known as a critic of the Court. Olmert is known as a loyal friend, and Chaim Ramon has been a long time ally and played a key role in the formation of Kadima. According to one theory, the appointment of Friedmann was an act of revenge against the government legal system for its handling of Ramon's case. Probably more to the point are Olmert's own ongoing travails with the legal system, which include half a dozen current or potential criminal investigations. The prime minister may have wished to signal to the legal system that he is not without tools of his own to defend himself, or perhaps he just wanted to fire a preemptive shot across the bow.

Finally, the appointment of Friedmann represents an example of the role of ideas in a democracy. A "democracy" camp consisting of a barely a dozen individuals outside of the Torah community kept hammering away for the past decade at the excesses of the Court. They include Professor Ruth Gavison, who first pointed out that an ideologically unrepresentative Supreme Court has appropriated to itself a degree of control over all normative debate in Israel to a degree unknown anywhere in the world; former Supreme Court President Moshe Landau, who described the Barak Court as 14 Platonic guardians; Maariv op-ed page editor Ben-Dror Yemini, and through him the entire op-ed page of Maariv; attorney Yaron Festinger, a thorn in the side of the powers that be of the Bar Association; Evelyn Gordon in the Jerusalem Post; MK Ruby Rivlin; a handful of brave figures in academia; and lately the Institute for Zionist Strategies.

Over the past ten years, I have written close to forty op-ed pieces on various aspects of the government legal system – e.g., the Supreme Court and specific decisions of the Court, the judicial appointments process, the incredible non-statutory powers granted the Attorney-General (a position once held by Barak) by the Supreme Court, and proposals for a constitution for Israel. Many times I was asked whether I saw any results from all these pieces. I could never answer affirmatively with any confidence.

But it is clear that the arguments of the "democratic camp," long tarred as enemies of the rule of law, have finally begun to sink in. Friedmann’s appointment was unanimously approved by the cabinet, and most of the comment, apart from that in Ha’aretz, was favorable.

When Chaim Ramon was first appointed justice minister, Professor Friedmann published a lengthy piece in Yediot setting forth a recommended agenda for Ramon. That agenda read like a wish list of the "democratic camp," with a few slaps at Beinisch thrown in for good measure. He points out that "seniority" principle that brought such an inferior justice as Beinisch to the court presidency is not employed by any other court system in Israel, and would probably be struck down by the Supreme Court as lacking "reasonability" if it were.

Friedmann criticizes 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. And 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 would also take away the Court's power to strike down Knesset legislation, and he would confer that power on a constitutional court, 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. Writing on Ynet, Dr. Chaim Misgav predicts, "The committee for selecting judges is also about to undergo a serious shakeup. A longtime, mushy tradition reminiscent of the conduct of dark monasteries is about to end. . . . What Court President Dorit Beinisch really didn't want to happen is without a doubt about to materialize. A series of top-notch legal minds – each one a prodigy in his or her own right – are about to fill the empty chairs at the High Court of Justice. The concept of 'friends" will no longer have added value. The era of appointments born in the State Attorney's office cafeteria is also over."

No doubt Friedmann as justice minister will not try to advance the entire agenda he advocated as a private citizen, and certainly not in one fell swoop. And the power to enact that agenda is not his alone. But it is clear that he will do enough to make life miserable to all those who have been telling us for years that the rule of the "experts" of the Supreme Court is the best of all possible forms of government.

Reacting to Friedmann's appointment, Justice (ret.) Mishel Cheshin, like his father before him a former 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 just have to learn that in a democracy the Supreme Court belongs to all.