Who is Undermining Israeli Democracy?

In order to fully appreciate the absurdity of Court President Dorit Beinisch’s charge that even the most minimal proposed changes in Israel’s method of judicial selection represent an attempt to undermine “the democracy upon which our society rests,” one need only know one fact: Israel’s method of judicial selection is absolutely unique in the democratic world.

No other system gives so much power to sitting Supreme Court justices to choose their future colleagues and successors. Only India among the world’s democracies also gives sitting justices a role in the judicial selection process. Are all the rest, then, not really democratic? Even by Israeli standards that claim of the unique wisdom of our system reflects a remarkable degree of hubris.

IN TRUTH, IT IS THE SUPREME COURT ITSELF that represents the greatest challenge to Israeli democracy. Richard Posner, considered by many the most brilliant living American jurist, defines democracy as “a system of governance in which the key officials stand for election at relatively short intervals and are thus accountable to the citizenry.” Judicial review, in which courts strike down statutes or substitute their policy judgments for those of elected officials or their delegatees, is in inherent tension with representative democracy so defined.

To minimize that tension, Alexander Hamilton argued in The Federalist Papers that the judiciary must remain “the least dangerous branch,” with no power over “the purse or sword.” Retaining the status as “the least dangerous branch,” wrote the great constitutional scholar Alexander Bickel, in his seminal book of that name, requires justices to exercise restrain and avoid entering into the realm of politics and making decisions primarily based on their personal values.

Beinisch’s mentor, former Court President Aharon Barak, completely rejected any such restraint. He abandoned traditional doctrines of judicial restraint – standing and justiciability – famously declaring that “everything is justiciable” including troop deployments in wartime, and permitted any citizen who objected to a particular governmental decision to bring a suit directly to BaGaTz, the Supreme Court sitting as the High Court of Justice. He boldly usurped traditional legislative perogatives – for instance, appointing a commission to consider the issue of road closings on Shabbat nationwide.

As Professor Ruth Gavison and many others have argued, the Israeli Supreme Court determines national “norms” to a degree without parallel in the Western world. Former Court President Moshe Landau accused the Court under Barak of having taken on the role of Platonic guardians, “a role that they are utterly incapable of fulfilling and for which they have no training.”

Barak was untroubled by the tension between the power he claimed for the Court, an unelected and unrepresentative body, and representative democracy precisely because he entertained so little respect for the Israeli people and its elected representatives. A justice, he argued in Judicial Discretion should reflect the values of the “enlightened public,” and admitted that the standard of “enlightenment” would frequently be that of the justice himself. Barak and his acolytes, like Beinisch, primarily conceive of democracy as a “substantive” set of rights, to be determined by judges, often out of whole cloth or by importation from other legal systems, as opposed to a process of selecting the people’s representatives. The doctrine of “substantive democracy,” incidentally, is that which allowed the former Soviet Union to style itself a “socialist republic.”

THOUGH BARAK ATTEMPTED TO PORTRAY the Court as a professional body, deciding technical legal questions, nothing could be farther from the truth. Under his rule, the Court showed little interest in clarifying thorny issues of private law – in such areas as torts and intellectual property. Barak and his successor greatly preferred to act as the final arbiters of every government decision guided only by their own standard of “reasonability.”

The Israeli Supreme Court is the most highly politicized in the world. It is child’s play to juxtapose decisions, often ones decided the same day by the same panel, in ways that make it clear that the results are wholly dependent on the identity of the parties and the politics of the justices. (For my analysis of some particularly egregious examples see “Inconsistent Justice,” Jerusalem Post, January 5, 2001).

As Evelyn Gordon pointed out this week, Court President Beinisch has imposed explicitly political criteria for selection to the Court. Reversing her earlier position on the appointment of Jerusalem District Court Judge Noam Sohlberg, she declared him unfit for the Court on the grounds that he has been depicted as “right-wing” in the media. The jaw drops. Could Beinisch be unaware that she is perceived as “left-wing?” Or does she think that label is irrelevant because it is synonymous with the “enlightened values” that are supposed to guide the Court, according to Barak. Now, as Gordon notes, not only do the three sitting justices themselves wield a veto over any candidate not to their liking, but so does the media, the other remaining bastion of left-wing power.

“POWER CORRUPTS AND ABSOLUTE POWER CORRUPTS ABSOLUTELY,” Lord Acton teaches. And the stranglehold of the sitting Supreme Court Justices has corrupted the Court and undermined public respect. As Court President, Barak pushed through the appointment of his wife as head of the National Labor Court. Beinisch blocked the appointment of Professor Nili Cohen, in order to ensure the appointment of her good friend and successor as State’s Attorney Edna Arbel. At the time of the appointment, there were two credible claims that Arbel had discussed the appointment of her husband to government boards with politicians under investigation by her office, and even Ha’aretz questioned whether she possessed the requisite legal abilities for the Court. Had there been open Knesset hearings on the Arbel appointment, such as those Beinisch so vociferously opposes, she would never have survived the scrutiny. Investigative journalist Yoav Yitzchak revealed a few days ago that Court President Beinisch has pushed at least six people who helped her husband Yechezkel with his legal difficulties arising out of his tenure as head of the Jerusalem Symphony for appointment to the Court.

The sitting justices have used their control of the judicial selection process to extend their tentacles into the entire legal system at every level. Lower court judges and academics with further aspirations know that advancement depends on currying favor with the court president. The use of “temporary appointments” of lower court justices to the Court allows them to prove their loyalty to the regnant legal powers.

Certain positions, like Attorney-General and States Attorney, are traditional stepping-stones to the Court. And that allows the Court to influence those holding these positions. The powers of the Attorney-General are almost entirely of judicial creation, and give him the last word on all government action. The government cannot even have its legal position tested in Court when he objects. Thus the Attorney-General serves as the Court’s emissary to the executive branch, with unreviewable powers. Like our curious method of judicial selection, the powers of the Attorney-General are another anomaly of the Israeli legal system that serves to diminish the sway of the elected branches.

The power of the States Attorney’s office has been used to reign in any Justice Minister or potential Justice Minister, who might constitute a threat to the powers of the Court in any way. When Yaakov Ne’eman, one of the country’s most prominent attorneys, was appointed Justice Minister in the first Netanyahu government, State’s Attorney Edna Arbel and Attorney-General Michael Ben-Yair dusted off a baseless charge, which had lain dormant for four years, to force his resignation (even though the trial court angrily threw out the indictment.) And when Reuven Rivlin, a frequent critic of the Court, was mooted for Justice Minister, news of another long dormant file was leaked to the press. Dror Hoter-Yishai, an outspoken critic of the Court as head of the Israel Bar Association, also found himself the subject of a criminal complaint quickly dismissed by the trial court.

THE IMPACT OF THE JUSTICES’ CONTROL of judicial appointments has deprived the Court of a great deal of its legitimacy in the eyes of the public. As head of the Knesset Law Committee, MK Miki Eitan once characterized the system as “a friend brings a friend,” and the label has stuck. Professor Gavison characterizes the results of the process as the creation of a “sect, which is too uniform and perpetuates itself.” She should know. At great public humiliation to himself, Barak fought tooth and nail to block her appointment to the Court. Even on a Court of fourteen justices, Barak feared the presence of the Court of a justice who could match his intellectual firepower and serve as a counterpoise to his judicial activism. And thus an internationally respected constitutional scholar was denied a seat on the Court.

As a consequence of successive Court Presidents efforts to preserve uniformity of judicial philosophy, the Israeli Court lacks entirely any clash of legal titans representing diametrically opposed judicial philosophies, like that between Justice Felix Frankfurter and Justice Hugo Black on the United States Supreme Court. No justice is ever forced to clarify his or her thinking in the face of opposing views.

Pendular swings in the Court’s guiding judicial philosophy, such as that between the Warren Court and the Burger and Rehnquist Courts in the United States are rendered impossible in Israel by the process of judicial selection in Israel. That fact undermines the Court’s legitimacy more than anything. Democracy can only function where the playing field is perceived as level, and those who lose the political debate today can hold out the hope of prevailing tomorrow.

An overreaching and self-perpetuating Supreme Court in Israel violates that fundamental principle of procedural fairness. And that renders the Supreme Court the greatest threat to its own legitimacy.

Originally published in the Jerusalem Post.

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11 comments to Who is Undermining Israeli Democracy?

  • Baruch Gitlin

    Although I agree that the present system of judicial selection in Israel should be revised, I believe at least some of the revisions that are currently under consideration would be cures that are worse than the disease because they would include not only appointment by the Knesset, but also re-appointment by the Knesset, thereby subordinating the courts not only to political pressure but also to a high degree of instability as the majority in the Knesset changes hands. I think the American system of appointing judges for life terms, with a 2/3 majority of the Senate required for confirmation, is an excellent system because it gives a reasonablly sized minority the power of veto and it frees federal judges from political pressure by giving them life tenure. I believe that a similar system for Israel would be a great improvement over the current system, but the reforms that are being proposed would, instead, eliminate the Supreme Court as an independent branch of government.

    Moreover, I wonder about all this talk about how activist the court is. If the court really as activist and left wing as it is often portrayed, why is it that the issue of draft exemptions for yeshiva students has been pushed off for so many years? The members of the Supreme Court would make themselves heroes to a sizable portion of the public if they were to eliminate this exemption, but yet, they have not done so. Rather, the court has pushed the Knesset to handle the issue. This is only one example – there are many aspects of the religious status quo in this country that the Supreme Court has left alone despite challenge, such as the conversion system, the absence of public transportation on Shabbat, and many others. In fact, the very existence of a state rabbinute is something that would clearly be held unconsitutional in the United States.

    Finally, I would argue that the best way to define, and therefore limit, the power of the courts would be to implement a constitution. Without a constitution, the judges have an open field to in effect implement their own unwritten constitution, although they do have the basic laws to provide something of a framework. A constitution defining the powers of government and the civil rights of the public might curb some of the court’s alleged activism. Yet, it is the religious parties that have most emphatically opposed proposals for writing a constitution.

  • Tal Benschar

    `When I use a word,’ Humpty Dumpty said in rather a scornful tone, `it means just what I choose it to mean — neither more nor less.’

    `The question is,’ said Alice, `whether you can make words mean so many different things.’

    `The question is,’ said Humpty Dumpty, `which is to be master – - that’s all.

    When Dorit Beinisch uses the word “democracy,” she does not mean the dictionary definition of that word (rule by the people), rather she means “consistent with the philosophy of us enlightened Israelis, and not that of the benighted religious/Sephardic/Russian masses.”

    Kind of like the use of “democratic” in “People’s Democratic Republic of Wherever,” for those old enough to remember such.

  • L. Oberstein

    There is no question that the Israeli Supreme Court is very different from the US Supreme Court. The secular Ashkenazi elite is scared to death that the rest of the countryi.e. the majority will rule. They write openly about Israel no longer being a democracy by whice they mean that they are not the unchallenged rulers any longer. I was just in Israel and always am surpised at how many food establishments outside of Jerusalem advertise “Mehadrin Kosher”. This wan’t the case a decade ago.
    The secular elite see their children moving out of the country and those that remain lacking a strong “Jewish” identity. They see their vision of the state being wrecked by a combination of Sephardim (primitives in their minds), chareidim ( too scary to describe) and Arabs ( who they are realising aren’t happy with their status in Israeli society.) This is a kulturkampf and I assume the Supreme Court will fight very hard to keep the status quo as long as they can.Time will tell.

  • cohen y

    ‘Moreover, I wonder about all this talk about how activist the court is. If the court really as activist and left wing as it is often portrayed, why is it that the issue of draft exemptions for yeshiva students has been pushed off for so many years? The members of the Supreme Court would make themselves heroes to a sizable portion of the public if they were to eliminate this exemption, but yet, they have not done so. Rather, the court has pushed the Knesset to handle the issue. This is only one example – there are many aspects of the religious status quo in this country that the Supreme Court has left alone despite challenge, such as the conversion system, the absence of public transportation on Shabbat, and many others.’

    They would love to,but until close to half the country suports them on one of the big ones,they wouldn’t cross a red line.For then the knesset would be called to override them,and their game would be up.(Benish ,once, very quietly admitted as much.)

  • cohen y

    ‘Finally, I would argue that the best way to define, and therefore limit, the power of the courts would be to implement a constitution. Without a constitution, the judges have an open field to in effect implement their own unwritten constitution, although they do have the basic laws to provide something of a framework. A constitution defining the powers of government and the civil rights of the public might curb some of the court’s alleged activism. ‘

    agree absolutely.

    ‘Yet, it is the religious parties that have most emphatically opposed proposals for writing a constitution.’

    No one ,with the exception of americans(and the left who prefer it this way,) seem to appreciate it.Hillel Kook(Herut),(aka Peter Bergson) who did,walked out of the first knesset in (and moved to america)when he saw the situation.

  • yishai

    beware of the constitution!

    a “constitution” in Israel will be minoritiy rights (arabs not haredim), religious freedom for secular not for religious (freedom of coercion, not religious freedom), equality (to get drafted), and, of course, a state of laws (the supreme court as undisputed ruler of the state).
    So be careful for what you wish.

  • DF

    Per Jonathan Rosenblum’s words, the Israeli supreme court does NOT, in fact, have control over the sword or the purse, exactly as Hamilton wanted. It must look to the executive for enforcement of its orders, and to the Knesset for its operating funds. Which begs the question – why hasn’t the Knesset, or at least the PM, stepped in? Do they in their hearts agree with the courts, or do they actually beleive the court’s propaganda, that even minor tinkering would undermine the judiciary?

    I suspect the former. That is, occasionally they might be upset by one or two of the court’s decisions, which is natural. And it’s true the court has a left-wing inclination. But the alternative might end up a type of theocrocy, in which battei din and charedim are in charge. And that’s something almost nobody, INCLUDING religious people other than hard-core charedim, truly wants. And thus the system remains.

  • Tal Benschar

    But the alternative might end up a type of theocrocy, in which battei din and charedim are in charge. And that’s something almost nobody, INCLUDING religious people other than hard-core charedim, truly wants.

    When “religious people” say hashiva shofteinu ke varishona three times a day, I wonder what they think they are praying for.

  • Ori Pomerantz

    cohen y: If the court really as activist and left wing as it is often portrayed, why is it that the issue of draft exemptions for yeshiva students has been pushed off for so many years?

    Ori: I have a confession to make. I didn’t know the answer, so I went to Ein Dor and asked the lady to talk to the ghost of Machiavelli(1). He suggested two reasons:

    1. To have an easy excuse to bash Charedim.

    2. To avoid having a militarily trained population whose loyalty is questionable. In a war between Israel and the Arab countries the Charedim would fight for Israel. But what would happen if there was a significant disagreement between the Israeli government and the Charedi gdeoli Israel?

    (1) Not really, but it makes a good story.

  • Ori Pomerantz

    Tal Benschar: When “religious people” say hashiva shofteinu ke varishona three times a day, I wonder what they think they are praying for.

    Ori: Possibly they’re asking G-d for it because they don’t believe we have men qualified to be that kind of judge.

  • myron chaitovsky

    IIRC, at some point Barak presented–with great pride–his views on the structure of Israel’s judiciary, and did so in the presence of a prominent member of the U.S. judiciary. To his dismay, that jurist–whose name I canot recall–objected to Barak’s presentation, going so far as to dress him down somewhat, insisting that the Israeli system was contrary to norms of democracy and violative of the checks and balances system extant in the U.S. I further recall that you, Jonathan, wrote about this at that time.

    Can you remind us who the American jurist was?