Israel’s Supreme Court President Aharon Barak and the Court he heads found themselves under sharp attack on two fronts last week. In an address to the Israel Democracy Institute, Knesset speaker Ruby Rivlin, with Barak present, accused the Supreme Court of endangering the very foundations of Israeli society. The same day, the three Knesset members sitting on the judicial selection committee boycotted the vote on two nominees to the Supreme Court in protest against the manner in which those nominees were ramrodded through the committee by Court President Barak.
Rivlin’s attack, coming as it did from a widely respected politician at the very center of the political spectrum, generated a storm. ``The real danger to Israeli democracy," he charged, ``is not from the sleeping margins of society and not even from the fiery public discourse on especially acute issues. The danger is at home – from inside the establishment, and actually from the institution supposedly entrusted to protect and preserve the values of democracy."
Turning to Barak, Rivlin declared, ``The revolution in `judicial activism’ that you announced a few years ago has become – perhaps not purposely – a `revolution in government’ that now endangers the most sacred foundations of Israeli democracy." The immediate trigger to Rivlin’s wrath was the decision of a Magistrate’s Court judge striking down a Knesset statute governing ``tax advisors" as violative of the Basic Law on Freedom of Occupation. If a Magistrate’s Court judge does not hesitate to strike down a Knesset statute, Rivlin asked, ``Why do we need laws at all? Let’s just appoint some judges to sit at the gate of the city and mete out justice according to their best judgment, beliefs, and personality?"
More generally, Rivlin protested what he deemed an attitude of contempt for the Knesset among the judiciary. ``In their eyes, I and my colleagues are unfit for testimony, and, of course, for legislation, due to the inherent corruption with which we are infected by virtue of the fact that we are publicly elected politicians. . . . The Knesset is portrayed as an obstacle, irrelevant and comprised of 120 politicians, who have no idea what the country really needs."
Court President Barak was not slow to respond. He accused Rivlin of delegitimizing the judicial system, something Rivlin vigorously denied. Rather than harming democracy, said Barak, when a court strikes down a law that negates basic civil rights that is the essence of democracy. ``That is the lesson of the Holocaust where the majority trampled the rights of the minority."
Even for Barak, the citation of the Holocaust as necessitating his brand of judicial activism was over the top. The German judiciary was fully complicit with the Nazi enterprise from the beginning; nor could any judiciary have withstood a popular whirlwind like Nazism. Finally, it is hard to see what a Knesset statute governing who can act as a ``tax advisor," a licensed profession in Israel, has to do with fundamental civil rights, much less the Nazis.
Barak’s reply manifested precisely the disdain for the Knesset of which Rivlin complained. Barak’s published writings are rife with expressions of contempt for the Knesset. ``One has a strong suspicion – based on reality – that in its haste to attain short-term political goals, the legislature will harm fundamental democratic values," he writes in Judicial Discretion.
Barak consistently defines democracy almost exclusively in terms of basic human rights. While certain rights, like the right to vote and freedom of political speech, are inseparable from democracy, the fundamental democratic ideal remains that of rule of the majority through its elected representatives.
Barak responded to Rivlin that the Knesset is not sovereign, the people are sovereign. Fine. But, contrary to what Barak seems to think, elected legislators are far more representative of the people than are unelected judges. That aspect of basic democratic theory is forever lost on Barak.
The issue of judicial overreaching raised by Rivlin and the nature of judicial selection protested by the Knesset representatives on the judicial selection committee are conceptually distinct. In the Israeli context, however, they are closely linked.
By doing away with traditional doctrines of judicial self-restraint, such as standing and justiciability, and subjecting every governmental decision to a test of ``reasonableness" (according to the lights of the justices), the Israeli Supreme Court has assumed a larger role in determining basic societal norms than any Supreme Court in the world. Professor Ruth Gavison, founder of the Association for Civil Rights in Israel, professes the same values as most of the justices of the Supreme Court. Yet she charges the Court with having used ``its power to give priority to the values of one group in society at the expense of the values held by other groups" and of having set itself up as a ``supreme moral authority" as opposed to judicial authority.
Most of the business of the Court has to do with governance and not judging in the traditional sense, a task for which, former Court President Moshe Landau points out, nothing in the justices’ legal training prepared them. Not only does the Court frequently substitute its view of reasonableness for that of the political branches, but it shows a decided political bent. One can easily produce a long list of pairs of cases in which the different outcomes are only explicable in terms of the political identity of the parties.
In virtually every other democracy, justices to the highest constitutional court are selected by some combination of the executive and legislative branches. The involvement of the elected branches in the selection procedure ensures that those making basic normative decisions for the entire society are in touch with the norms of the citizenry. In that way the inherent tension between judicial review and majority rule is lessened.
In Israel, by contrast, the judicial selection process is completely dominated by the three justices on the judicial selection committee. As a consequence, the world's most politicized Supreme Court is also the Court most immune from input from the elected branches.
The three justices on the judicial selection committee consult in advance and vote as a bloc. (Hebrew University law professors Mordechai Kremintzer and Shimon Shitreet have both opined recently that the justices’ prior consultation and collusion is illegal.) No justice has ever been selected without the unanimous support of the three justices on the committee, and the generally the only candidates considered are those proposed by the justices. The three Knesset members on the committee were protesting that monopoly on the entire selection process by the three justices last week when they boycotted the vote of the judicial selection committee.
The judicial selection system has been accurately described as ``every friend brings a friend." Thus when Aharon Barak became Court President he pushed through the appointment of his friend good Dorit Beinisch (who had been previously rejected.) Now Beinisch, who is in line to be the next Court President, is intent on bringing her good friend and successor as State Attorney, Edna Arbel, on board.
The result is a Court of remarkable uniformity and wholly unrepresentative of the citizenry whose norms it would determine. In Gavison’s words, the Court has become ``a closed sect – a sect which is too uniform and which effectively perpetuates itself." And like all cults, never exposed to opposing ideas, the Court is remarkably lacking in intellectual humility.
The control of the Court President over the judicial selection procedure allows him or her to select successors in his or her own image. It also allows him to enforce ideological conformity throughout the legal system and even in the law schools, as lawyers, judges, and legal academics with aspirations for advancement through the judicial system know that they must curry favor with the Court President.
The regnant judicial ideology is thereby rendered self-perpetuating. That too undermines Israeli democracy. The basis of democratic society is the recognition by all groups that even if their views do not prevail today, they may do so tomorrow. Rules that enshrine one viewpoint forever contradict this perception.
The fact that Court President Barak and his fellow justices now find themselves forced so frequently to ``return fire" in defense of their peculiar institution is good news for the future of Israeli democracy.