Disorder in the (Israeli) courts

Isabel Kershner writes about the current controversy over Israeli’s judicial system in Friends’ Clash Reflects Battle Over Israeli Court

In recent days, Aharon Barak, the internationally esteemed jurist and retired chief justice of Israel, has broken a self-imposed silence and spoken publicly against an old friend, Daniel Friedmann, Israel’s minister of justice.The struggle between the men is part of an intense battle playing out across Israel’s political and legal landscape. As Mr. Barak described it last Friday, it is “a struggle over the country’s soul,” specifically over the independence of the court, the separation of powers and the fundamental question of who is in charge.

Both sides fervently believe that Israeli democracy is at stake. Mr. Friedmann, an eminent law professor who came into office in February, contends that the Supreme Court has become a law unto itself, extending its powers into the purviews of the other branches of government and trying to make itself immune from legislative oversight.

In a recent interview, Mr. Friedmann, 71, said he wanted “to restore the balance between the various branches of government,” which had been “completely upset in recent years.” He has argued that unelected judges are waging an antidemocratic revolution.

In case you don’t know which side Kershner is sympathetic to, note the description “internationally esteemed jurist.” “Eminent” doesn’t quite measure up.

After partially describing Judge Barak’s revolution in jurisprudence, Kershner writes:

The Supreme Court has used these powers very sparingly. Still, Mr. Friedmann wants them curbed.His allies include legislators as well as other sectors of Israeli society who want to see the legal establishment restrained, among them politicians and business figures who have been investigated or indicted, and the religious and nationalist camps, which eschew the Supreme Court’s liberal approach.

American conservatives have also weighed in. Robert H. Bork, a key theorist of the American legal right, has complained that Mr. Barak’s ideas are “a textbook for judicial activists” and that Mr. Barak has established “a world record for judicial hubris.”

Richard A. Posner, a senior American appeals court judge, called Mr. Barak “a legal buccaneer.”

Posner doesn’t easily fit into categories, but notice the opposition is characterized as being from “conservatives” and those who have an interest in restraining the court.

That someone could have reason to be disturbed with the Israeli Court’s reach and not have a selfish or political interest isn’t considered.

While she mentions in passing that Friedmann wants to open up the process of appointing judges, the focus of the article is on personalities and politics rather than substance. Others, in analyzing the Israeli judicial system, put more emphasis on the court’s notion of perpetuating (and imposing) its beliefs.

Jonathan Rosenblum, who, admittedly, has an issue with the courts – religiously he’s Chareidi, politically he’s conservative – wrote about one of the problems that Kershner ignores:

Israel, by contrast, has developed one of the most efficient judicial selection procedures in the world: the Chief Justice and Justice Minister sit down together and pick new justices, whose selection is then rubber-stamped by the remaining seven members of the judicial selection committee.In practice, Chief Justice Barak dominates the process. Over the last decade, he has played a decisive role in the selection of not only every Supreme Court justice but also in appointments to Israel’s lower courts. Israeli newspapers routinely describe new judicial appointments as “Barak’s picks.”

Before Americans embrace the efficiency of this system – the judicial equivalent of Mussolini’s getting the trains to run on time – however, they should consider the system’s drawbacks. As one would expect, it has resulted in a Court remarkable in its ideological uniformity. The titanic struggles between rival judicial philosophies that characterize American Supreme Court history – e.g., Hugo Black vs. Felix Frankfurter – are absent from Israel. There is not one justice on the Israeli Supreme Court who serves as a mediating influence on Justice Barak’s jurisprudence, and it is rare for a decision of major impact in Israel to be decided by a narrowly divided Court.

Barak’s dominance of the judicial selection process chills dissent throughout the legal system. Any lower court judge, academic, or attorney-general who aspires to judicial advancement knows that his or her fate is in Barak’s hands.

Prof. Ruth Gavison, who’s no rightist, also objects the Barak court’s overreaching. Unfortunately, Kershner didn’t see fit to interview her. However, back in 1999, Ha’aretz reporter Ari Shavit did interview her. This is how she summarized the problem of the Israeli Supreme Court (or to translate the Hebrew more precisely – the High Court of Justice)

“In Germany, Italy and South Africa there are constitutional courts that have far-reaching powers. But those courts are subject to a clear constitution and were established especially to fulfill that function; accordingly, their members are chosen by the political branches and are appointed for a limited period. In the United States there is a Supreme Court that has taken on itself the power to overturn laws, but it does this in a lengthy process and on the basis of a crystallized constitution, and its justices are appointed in a political process.“In Israel, by contrast, there is no crystallized constitution, there is no lengthy process and there are no justices who represent the entire society or who serve for a limited period. The result is a situation in which one court, which effectively appoints itself, creates the constitution by means of its interpretation of the basic laws. And this occurs without any of the control mechanisms that exist in the United States. So from this point of view our situation is quite distinctive. The combination of judicial criticism of Knesset legislation, in a state where there is as yet no crystallized constitution, by a court whose justices are not elected but are appointed for life by the judicial system itself, creates a very problematic situation, in my opinion. From the point of view of democracy and the democratic decision-making process, there is a not inconsiderable problem.

“What is equally serious is that this process is not accompanied by public discussion worthy of the name. In the United States, where there are activist courts, there is an ongoing, lively debate. Opinions are voiced on both sides of a question. Whereas in Israel, some sort of rhetoric is generated that creates the feeling that anyone who is critical of the court is the enemy of the rule of law. I do not accept that. I think the very opposite is true. I think that within the judicial community there are deep disputes today over all the questions on the public agenda: over a constitution, the basic laws, the status of the court, the Or commission reforms [referring to a panel headed by Supreme Court Justice Theodor Or to revamp the structure of the courts system]. All these questions are in dispute, but generate no public reverberation because of the attempt to close ranks and create a front of homogeneity toward the outside.

The one substantive issue that Kershner deals with is

It abolished the principle of standing, meaning that petitioners need not have a direct stake in the outcome of a case they bring. This opened the court up to civil rights groups and a flood of public petitions. Because of a historic anomaly dating from the British Mandate, petitioners appeal directly to the Supreme Court, without the filter of a lower court.The Supreme Court also broadened the rules to the point where practically every government decision is open to review.

Well yes it has. And it can reasonably be asked if this is a good thing. Certainly there are quite a few results that liberals cheer that occur because of this. But should the Supreme Court be second guessing the military when it comes to routing the security fence? I don’t think so, but it has.

Kershner covered an important topic, unfortunately she paid attention mostly to the personalities and politics involved in the controversy over Israel’s courts. The substance of the issue was left largely untouched.

Crossposted at Soccer Dad.