Drunk with its own arrogance
by Jonathan Rosenblum
February 15, 2002
``Immoral adversaries make stupid mistakes," community organizer Saul Alinsky used to say. That observation applies particularly to the haughty. Even where they could achieve their goals more effectively by disguising their own lust for power and sense of their own righteousness, they are incapable of doing so. Our Supreme Court provides a classic case in point.
Last month, the Court had the opportunity to consider a ten-year-old case, in which the Bar Association Ethics Committee fined attorney Simcha Nir for a magazine article critical of the procedures in Israeli traffic courts. A decade ago, Nir described the requirement that those who contest traffic tickets return for a hearing another day (and thereby miss a second day of work) as a ``conspiracy" between the courts and the police to compel guilty pleas. In response, the bar association fined Nir for not upholding the honor of the legal profession and for conduct unbecoming a lawyer.
The case presented the Court with an opportunity to write a paean to the virtues of robust, free speech, and to apply to the judiciary the same advice that it has often given to other governmental branches aggrieved by sharp criticism – develop your ``powers of endurance."
But the Court did nothing of the kind. First, Justice Strassbourg- Cohen read Nir’s article as if he had accused the judges and police of actually sitting around a table plotting how to extract guilty pleas. Based on that forced reading, the Court then found that Nir had defamed the judiciary and gone beyond the bounds of legitimate criticism.
All this will no doubt be astounding to students of traditional free speech doctrine. In America, for instance, there is much debate about whether the First Amendment applies to so-called ``commercial speech" or to allegedly artistic works that violate community standards of morality. But there is unanimity that ``political speech" is protected, for without that protection democracy is impossible.
It would be difficult to imagine a purer case of political speech than criticism of the various organs of government. Limiting criticism of the government under vague categories such as ``conduct unbecoming a lawyer" will have a chilling effect on the freedom to speak harshly to authority, one of the hallmarks of a free and democratic society.
What makes the Court’s decision particularly galling is that Court President Aharon Barak has himself been highly critical of the other branches of government and protective of critics of those branches. In his book Judicial Discretion, he writes of the ``suspicion, based on experience, that the Knesset will harm fundamental democratic values." Barak’s recent campaign against the bill to create a constitutional court– a campaign that he orchestrated with the skill of a old-time Chicago ward healer in strategy sessions with Justice Minister Meir Sheetrit and Law Committee Chairman Ofer Pines-Paz – was predicated on the claim that sponsors of the legislation were out to limit human rights, which only the current Court can protect.
By upholding the Bar Association’s disciplinary action against Nir, the Court not only betrayed the most fundamental principles of free speech, it showed that it applies one set of rules to itself and another set of rules to other governmental branches. Criticism of the judiciary is lese-majesty, which threatens the very rule of law, while criticism of other branches is not only permissible but desirable.
Such judicial double standards are already an old story. The same justices who claim the authority to apply ad hoc standards to judge the appropriateness of every prime ministerial appointment, as in the recent case of Ehud Yatom, do not even view themselves as bound by explicit rules drafted by one of their own colleagues, and based on norms applied by courts throughout the world.
The ethical code for judges, drafted by former Court President Meir Shamgar, requires a judge to recuse himself from any case ``in which he has social or family ties to the accused, or to any of the attorneys or a central witness." Yet when an appeal from a criminal conviction came before the Supreme Court, Justice Theodore Orr refused to recuse himself, even though a key witness in the case, who had been sharply criticized by the trial judge, was a close friend, as were the convicted man’s attorneys. Orr argued the ethical code was only advisory -- not binding -- and the Supreme Court upheld his position.
By not requiring Orr to recuse himself, the justices modestly declared themselves immune to the natural human bias in favor of one’s friends.
In another display of arrogance, Court President Aharon Barak declared last month that the judicial selection committee, which he controls, would simply ignore the Bar Association evaluations of judges based on the comments of attorneys who appear before them.
At the same time, such evaluations by the Bar are formalized in most jurisdictions throughout the United States. There is a widespread recognition that attorneys who have appeared in a particular court can provide a valuable perspective on such intangible qualities as judicial temperament and courtesy to litigants and attorneys, which cannot be ascertained from a trial record. (Admittedly such evaluations, like students’ evaluations of professors, cannot be the sole measure of judicial competence. There is plenty of room for mischief by attorneys who may have lost a case before a particular judge.)
Barak, angrily rejected the Bar’s interference in his appointment prerogatives. The panel on judicial selection can ascertain all it needs to know about a judge by examining the reasonableness of his or her sentences and other objective criteria, he declared.
This is vintage Barak. First, his standard of reasonableness becomes the measure of all things. Second, he can ascertain the reasonableness of a sentence without ever having heard the witnesses or being present at the trial – just one more supernatural power claimed by our justices. (That power is most frighteningly applied in criminal cases when the Supreme Court overrules a lower court’s acquittal without having heard the witnesses.)
Finally, it is wrong in elevating sentencing above all other aspects of a judge’s task. If Barak had a practicing attorney’s sensitivity to the importance of judicial temperament, he would never have nominated for the Tel Aviv District Court a judge who once told a handicapped lawyer that he should have considered the lack of elevators in some court buildings before going to law school.
By consistently applying different rules to itself than to the other branches of government and attributing to itself superhuman powers of discernment and freedom from bias, the Court does more to damage its own image than a host of critics ever could.
Related Topics: Israeli Supreme Court
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