Israel’s Judicial Tyranny

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For years, Jonathan Rosenblum has written about the antics of Israel’s Supreme Court and its Chief Justice Aharon Barak. For most of those years it seemed few outside the Orthodox world were listening, but now it appears that others are taking note. While his column in today’s Jerusalem Post briefly mentions the latest — Chief Justice Aharon Barak’s unjustifiable opposition to the appointment of Professor Ruth Gavison to the bench, no fewer than two other columnists make it their focus.

The first of these is Caroline Glick, the JPost writer who was embedded with US troops during the invasion of Iraq. In a few lines, she points out how monolithic is the character of the court, and how minimal a threat Gavison poses to Barak. His opposition is comprehensible only if, in Barak’s vision, the court must be composed of ideological clones of… Aharon Barak.

Last Friday… Supreme Court President Aharon Barak went to war against Hebrew University law professor and human rights activist Ruth Gavison, who Justice Minister Tzipi Livni wishes to nominate to the Supreme Court. In public remarks, Barak launched a stinging attack against Gavison for what he referred to as her “agenda,” noting that it was “not good for the Supreme Court.”

The notion that the Supreme Court appointment of Gavison – a fellow secular leftist from his university – could get Barak bent out of shape is a sign of the insularity and juridical uniformity of his court. One can scarcely imagine how he would react were the possibility of nominating a religious, right-wing jurist to the court ever raised.

Given [Barak’s near-total control of who gets a seat], Barak’s attack on Gavison must be seen as an act of hubris of the first order. It is a reflection of Barak’s elitist view that anyone, regardless of his or her professional credentials and intellectual caliber, who does not agree with Barak’s own judicial agenda, is unworthy of a court appointment. What Barak seeks is not a wise, fair and professional judiciary, but a uniform one – molded in his own image.

The second article is far more scathing, and is written by Evelyn Gordon. [As pointed out in the comments below, she has written previously in Azure as well as the Jerusalem Post about this issue. So although it wasn’t with the regularity of Rabbi Rosenblum, her criticism isn’t that surprising by itself. Perhaps the surprise is that there were three columnists — unanimously criticizing Barak — in the same day’s issue. I might speculate that the cause of that is not simply that R. Rosenblum and Gordon are being heard by others like Glick, but that this particular instance is so egregious in its abuse of rational standards. But that would not explain the overall tenor of Glick’s piece, which is to deliver much the same criticism as Gordon, and as R. Rosenblum so many times in the past.]

For sheer, unmitigated hypocrisy, it would be hard to beat Supreme Court President Aharon Barak’s justification for opposing Prof. Ruth Gavison’s Supreme Court nomination. In a lecture last Friday, Barak said that while Gavison is “completely qualified” for the post, he objects to her because “she comes to the Supreme Court with an agenda” regarding the court’s proper role in society. “That is bad in and of itself,” he declared. “That isn’t our system… One’s conception of one’s role should develop during one’s tenure.”

That, of course, is patently ridiculous: As one judge commented to Haaretz this week, “How can you expect a senior jurist, some 60 years old, not to have opinions about the court’s role?” But it is particularly egregious coming from a man who has systematically made the court a vehicle for his own agenda during 27 years on the bench.

What both writers make clear is that Gavison, a Constitutional scholar, merely wants to see Israel’s Supreme Court follow the same limits as apply to judiciaries worldwide. They do not write laws or meddle into every government decision — they merely determine whether something is in accordance with the nation’s constitution and other laws. Israel’s Court, on the other hand, arrogates “standing” to make a decision on just about anything, whether or not it contravenes the will of the people as reflected by the Knesset. And, furthermore, Barak’s view is that the Court should impose its own “enlightened” outlook upon the rest of society.

While it has long been known that the Supreme Court offered knee-jerk opposition to all things religious, and/or reflecting the character of Israel as a Jewish State, others are realizing that not only the religious community is affected by a Court that has discarded its moorings and set sail, dragging Israel along with it from democracy to judicial oligarchy. Or, as Glick puts it:

The net result of all of these actions has been the effective disenfranchisement of Israeli citizens and the distortion of Israeli politics and law to the point where it is difficult today to view Israel as a democracy.

Both articles are highly recommended.

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13 Responses

  1. Zev says:

    Jonathan,

    From me you get lots of credit. In fact, I think the turnaround in the JO from deathly dull to quite readable is due to you and a few others. I also like a lot of your Artscroll work. The first I saw of your Supreme Ct. criticism was in JO, so I assumed it was the first you had written. Since it drew liberally on Evelyn Gordon’s work, I thought it was silly of Yaakov to label her a latecomer. Now that I learn that you’ve been on the case for 10 years, I’m perfectly glad to acknowledge your work. Y’yasher kochacha! [But Gordon still can’t be characterized as only recently jumping onto the bandwagon.]

  2. menachem ppetrushka says:

    To Ari Pomeranz

    Yashir Koach
    I couldn’t have said it better. Just one point: Religious Councils and Rabbinical Courts are different insitutions with different functions. The Religious Councils provide religious services such as shuls and mikvahs and supervise kashrus Their main clients are the religious. Rabbinical Coutrs hasve jurisdiction over marriage and divorce among other areas and thus have contol of the lives of the entire Jewish Population in personal matters. Today, the Rabbinical Courts are composed of dayanim(jurists) with very conservative views and it would be almost impossible for one whose views are not as conservative to be appointed to the court.

    Meretz and Shinui have tried to play havoc with both institutions in their effor to destroy them.

    Menachem Petrushka

  3. Zev says:

    “Modern democracy has brought us to a situation where the ruler of the free world is the guy whose haircut looks best on television.”

    Not really. The best haircuts in the last presidential race were Kerry and, by far, Edwards. Who won? Bush and (bald) Cheney. The people chose substance over glamour.

    I’m not 100% sure either how many ovdei avodah zarah there were in Josiah’s time; I’ve heard proofs each way. But it’s not really relevant, but you’ll surely agree that even if the majority of Israel were serving idols then, he still would have outlawed it, since it’s forbidden by the Torah. The point being that our law transcends and overrides the current will of the people. It just ain’t democratic!

  4. Jonathan Rosenblum says:

    Zev,

    For the record, I think that Evelyn Gordon is probably the best columnist in the world, though not the flashiest (think Mark Steyn). I find it almost impossible to disagree with anything she writes after she has meticulously built up her case step by step. Her work in Azure, as well as that of Hillel Neuer and Mordechai Haller, on the Supreme Court is a must read for anyone interested in the Israeli Supreme Court. When Robert Bork consulted with me for his book on judicial activism worldwide, the first pieces to which I referred him in English were those in Azure. Today I would add Avi Shavit’s interviews in Ha’aretz with Professor Ruth Gavison and the former Court President Moshe Landau.

    There is no but here. I am far from the only one to note the democratic problems of the Supreme Court. But give a guy a little credit: I have been plugging away relentlessly at the Court’s jurisprudence for nearly a decade. (See http://www.jewishmediaresources.com under Issues Index.) And some of those articles must have been decent. How do I know? From time to time, Evelyn drops me an Email telling me so.

  5. Ori Pomerantz says:

    Rabbi Menken,

    The Israeli Rabbinical Courts are supposed to cater to the needs of those who seek Rabbinical supervision, especially on things like Kosher food. Meretz and Shinui are avowedly secular parties, whose members have no need for such services.

    Not exactly. It’s true that Meretz and Shinui’s constituency couldn’t care less about Kashrut, but Israeli Rabbinical Courts are also responsible for marriage and divorce (among people whom the government deems to be Jews). This means that if Api Kores the Shinui voter wants to marry his girl friend, Lelo Emunah from Meretz, they need to go to the rabbinical court. If he’s a Cohen and she’s a divorcee, they can’t get married. If he disappears a year into their marriage, she is Agunah and can’t remarry. If she then has children with her new boyfriend, Mumar Lehachhis, those children are Mamzerim and will not be able to marry.

    In the US Jews who don’t care about Judaism get married and divorced in front of a judge, so they shouldn’t care about who the Rabbis are. In Israel, some aspects of Judaism are codified as part of secular law, which gives secular Jews an interest in the religious councils.

    MS is mistaken. I have never heard Orthodox sources claim that were Israel to operate in accordance with Halacha, that this should be done by undemocratic means.

    Do you define democracy as “the limited power of the government is directed by the will of the people”, or as “the unlimited power of the government is directed by the will of the people”? If the first, then Halacha is incompatible with democracy. Halacha, which forbids worship of Ba’al, is incompatible with freedom of religion, which allows it. If it’s the second, then a country with a Christian majority that outlawed Judaism could be democratic.

  6. Yaakov Menken says:

    Zev,

    Granted, I could be exaggerating. Modern democracy has brought us to a situation where the ruler of the free world is the guy whose haircut looks best on television. When was the last time someone called one of our presidents wise or brilliant? [Rumor has it that Carter is extremely intelligent; as a president, however…] So, all in all, I do not believe that democracy is the best possible form of government. But I don’t think that even the idolatrous kings of Israel were authoritarian tyrants. They had the support of their people, with few exceptions. [Were the ovdei avodah zarah a huge population block in Josiah’s time? I honestly don’t know.] Certainly the Sanhedrin did!

  7. Zev says:

    “Nowhere in Jewish history do we find a situation where a huge population block found that the Sanhedrin or the proper Jewish Kings not only failed to represent them,”

    King Josiah fought against the ovdei avodah zarah, who were a huge population block. Of course he was justified, but it cannot be termed “democratic.” Our religion demands fealty even if a majority of the population objects. It’s not democratic.

    Indeed, the entire institution of a king and a royal family and the laws of mored b’malchus are undemocratic. Again, nothing wrong with that, but let’s be clear on what’s what.

  8. Yaakov Menken says:

    Menachem,

    That is very much to the point. The Israeli Rabbinical Courts are supposed to cater to the needs of those who seek Rabbinical supervision, especially on things like Kosher food. Meretz and Shinui are avowedly secular parties, whose members have no need for such services.

    Gavison is a Constitutional scholar with an international reputation. On her merits, she deserves a seat. No comparison can be drawn between her and a Reform Rabbi, unschooled in traditional Kashrut, vying for a seat on a Rabbinical council. As Reform Rabbi David Forman said just a few weeks ago, the Reform and Conservative movements have no constituency large enough to justify a seat on the councils. Furthermore, whereas Reform and Conservative Jews will agree that food declared Kosher by the Orthodox is indeed Kosher, the reverse is not true.

    Meretz and Shinui are not trying to represent a populace through these actions. They are trying to put people on the Councils who will antagonize the observant and traditional populations who benefit from Rabbinical services, and dilute the traditional standards which led to the creation of Rabbinical courts in Israel in the first place. Both Meretz and Shinui have made it extremely clear that they are not putting people into those seats because they want to improve the quality of Kosher supervision.

    Of course, if the Rabbinical courts had even a modicum of control over the selection of new members, there would never be a problem of that nature. The Supreme Court is at the other extreme — there is no room for democracy in Barak’s selections. That is indeed much like the Sanhedrin — but the Sanhedrin was a meritocracy.

    MS is mistaken. I have never heard Orthodox sources claim that were Israel to operate in accordance with Halacha, that this should be done by undemocratic means. Even in the days of Moshiach it will be by universal acclaim that he is declared King! Nowhere in Jewish history do we find a situation where a huge population block found that the Sanhedrin or the proper Jewish Kings not only failed to represent them, but fought their Jewish interests. That was reserved for Kings like Achav and Yerovam. The Sanhedrin created less trouble for the Samaritans than the Supreme Court does for anyone who disagrees with its leftist agenda.

  9. menachem ppetrushka says:

    Is it wise to attack the Barak Supreme Court when most of the criticisms made could be leveled against the institution of the Sanhedrin? What about the Israeli Rabinnical courts where only a single expression of Orthodoxy ia allowed? Every time a Meretz/Yacahd or Shinui member asks to have a “Gavison-like” Reform or Conservative rabbi elected, the howls that go up are deafening.

    MUM SHEBACH AL TOMAR LECHAVRECH.(Do not criticise others for the “faults” that you also have).

  10. Zev says:

    Actually, Caroline Glick has written anti-Barak articles in the JPost many times before.

  11. MS says:

    As an attorney, I’ve always read R. Rosenblum’s articles on the Israeli Supreme Court with interest. But, as of late, I find something awfully hyprocitcal. He criticizes that Court for being anti-democratic; basically, it’s the same criticism often aimed at U.S. judges from various sides of the political spectrum — that the judges or justices are not “doing law” but “doing politics” instead. Often, my view is that such criticism — from both the right and left — at least in the U.S., is unjustified. When it comes to the Israeli Supreme Court, I’m persuaded that there’s a problem, but I have a question for R. Rosenblum: what government would he prefer? I’m betting that he’d like nothing more than for the Eida Ha’Charedis or the presidium of Agudas Israel to run the State. And, it’s fairly obvious that such a State would hardly be democratic; moreover, I think many reasonably educated (and Torah learned) people would classify some recent pronouncements from G’dolei Torah as “doing politics” rather than “doing halacha.” With that in mind, it seems to me that even R. Rosenblum’s criticisms are ultimately nothing more than disagreements with outcomes as well, to the extent that he would also prefer a non-democratic state. Alternatively, R. Rosenblum may be simply saying that the Court is not doing its job, even according to the standards of those who favor democratic rule of the State, but that would be a very hollow criticism if R. Rosenblum himself would rather do away with democracy entirely. In a nutshell, I think that R. Rosenblum’s comments could easily be aimed at leading rabbinic authorities; even if it’s not true in some objective sense (it could be that God doesn’t think such authorities are “doing politics”), there’s no question that an increasing number of (American? Moderate? Yeshiva-affiliated?) chredi Jews believe that the line between politics and halacha has been blurred beyond recognition.

  12. Yaakov Menken says:

    The truth is that Zev is probably right. I should be reading Azure more carefully, especially as Yoram Hazony and Daniel Polisar were classmates, and Evelyn “Evie” Gordon graduated the following year. It is not true that Azure (1998) was “on the case” long before Rabbi Rosenblum (1997), but that may not be true of Gordon.

    If I recall correctly, Evelyn Gordon wrote an excellent piece in the JPost more than a decade ago, when there was a mass demonstration against the Court’s anti-religious bias. Though the demonstration was entirely composed of charedim, she called her article something along the lines of “It’s for All of Us,” because every Israeli was and is threatened by the Court’s consistent anti-democratic behavior.

    What I do not recall seeing, at any time in the past, is a piece from one of the JPost’s best-known columnists (Glick), or three columns mocking Barak’s madness, in the same issue. At this point — unlike previously — one can say that the JPost is “taking note” of the issue.

  13. Zev says:

    “but now it appears that others are taking note.”

    Oh please, Azure has been on of this for years. Half of Rosenblum’s material was from Azure. Check the footnotes to his JO Supreme Court articles if you don’t believe me.

    In fact, if memory serves, the very same Evelyn Gordon who you say has just jumped onto the bandwagon was actually the author of those articles in Azure! She was on this story long before Rosenblum.