Beinisch’s hypocrisy

The media’s veto power over Supreme Court appointments harms judicial independence.

By EVELYN GORDON
Supreme Court President Dorit Beinisch 311 (photo credit: Dudi Vaknin / Pool)
Supreme Court President Dorit Beinisch 311
(photo credit: Dudi Vaknin / Pool)
Supreme Court President Dorit Beinisch is outraged by politicians’ attitudes toward the court, as she said at a legal conference last Thursday. I’m also outraged – by the sheer hypocrisy of her accusations. For lack of space, I’ll discuss just one example: She opposed a bill to have the Knesset Constitution Committee vet Supreme Court nominees because it would undermine judicial independence. Why is this hypocritical? Because while Beinisch opposes giving our elected representatives veto power over Supreme Court nominations, she has personally granted unelected journalists such a veto.
And if that seems far-fetched, consider the case of Jerusalem District Court Judge Noam Sohlberg.
A month ago, Sohlberg was a leading candidate for the Supreme Court. The Judicial Appointments Committee’s four politicians all backed him, as did one of the Bar Association’s two representatives, while Beinisch and the panel’s other two justices were reportedly willing to acquiesce if the other members would support their preferred candidate for a second vacancy. Such deals are necessary because a law enacted by the previous government requires seven of the nine panel members, rather than a simple majority, to approve Supreme Court appointments. 
But then the media launched a campaign to brand Sohlberg as “right-wing.” Scarcely a day passed without a news story, editorial or op-ed rehashing this charge. The media also provided a megaphone to left-wing jurists, authors and academics who urged Beinisch not to “politicize” the court by appointing a “right-wing” judge. And it worked: When the appointments committee met on November 20, Beinisch nixed the planned deal.
Sohlberg, she reportedly told the committee, is a “talented judge.” But “appointing him would be interpreted as choosing a right-wing candidate because he had been depicted as such in the media,” and this perception would harm the court.  In short, she authorized the media to veto any appointment merely by branding the candidate as “right-wing.”
This has devastating implications, as the media’s reasons for hounding Sohlberg make clear. The first was that he lives in a settlement – not an illegal outpost, but a legal settlement under Israeli law. Thus a whole class of law-abiding Israelis has now effectively been barred from the court solely because the media disapproves of where they live. And as attorney Khaled Zoabi, the Judicial Appointments Committee’s first Arab member, warned in a Hebrew-media interview last month, if settlers can be banished from the court, calls for banishing other groups, like Arabs, will surely follow.
But the media also abhorred Sohlberg’s rulings – especially his verdicts against them in several libel suits. Most notably, Sohlberg ruled against reigning media queen Ilana Dayan, presenter of Channel 2’s investigative program “Fact,” even awarding the plaintiff a hefty NIS 300,000 in compensation.
Dayan had reported allegations that a certain Captain R. “confirmed the kill” of a 13-year-old girl in Gaza in 2004 – meaning that after his troops shot an unidentified suspicious figure approaching their outpost, R. went over, saw she was a schoolgirl, and deliberately shot her again at close range. Sohlberg didn’t challenge Dayan’s decision to report the story, which at the time seemed credible; only later did the key witness, R.’s lieutenant, break down in court and admit to having fabricated it to get rid of an officer he disliked. But the judge accepted R.’s contention that in various ways, Dayan’s report distorted a case still under investigation to make it more damning than warranted.
Now consider how this undermines judicial independence: Any judge aspiring to a Supreme Court seat will henceforth know that he should never rule against the media in a libel case, especially a high-profile one. And plaintiffs will just have to pray they get a judge without such aspirations.
Take another Sohlberg ruling loathed by the media: He acquitted a policeman of manslaughter for killing a Palestinian who, in retrospect, posed no danger because he accepted the policeman’s claim that he truly believed his life was threatened. Note to future Supreme Court candidates: Never, ever side with a policeman against a Palestinian, even if you suspect that, faced with a split second in which to make a life-or-death decision, you too might decide wrongly. And policemen can henceforth forget about a fair hearing from any judge with Supreme Court aspirations; other judges will surely learn the lesson.
Indeed, if judges know promotion depends on keeping the media happy, the career-minded will take care to avoid any ruling likely to offend known media sensitivities. And that will positively destroy judicial independence.
In contrast, letting politicians vet Supreme Court candidates wouldn’t hurt judicial independence at all, because the Knesset – unlike the media – changes hands frequently. Just consider how the government has traded hands over the last 20 years: Labor, 1992-96; Likud, 1996-99; Labor, 1999-2001; Likud, 2001-05; Kadima, 2005-09; Likud, 2009-2011. Hence judges needn’t fear that upsetting a particular party would preclude promotion, because the very decisions that upset one party would likely please its rivals. Moreover, with 14 justices and a mandatory retirement age of 70, Supreme Court slots fall open fairly often, so the wait would rarely be long.
Letting the Constitution Committee vet Supreme Court candidates would thus ensure a spectrum of opinion on the court without compromising judicial independence – which is precisely why virtually every other Western democracy does entrust Supreme Court appointments to some combination of the executive and legislative branches. Giving a veto to the unelected and largely monolithic media, in contrast, merely ensures the continuation of a stifling judicial conformism that produces minority opinions in only 3% of cases, compared to 60% in the US, and leads large swathes of the population to view the court as unalterably hostile to its most cherished beliefs and goals.
And that, Madame President, is why confidence in the Supreme Court has declined precipitously: It’s not Knesset members’ “campaign of delegitimization;” indeed, it takes a stunning contempt for ordinary Israelis to accuse them of blindly believing whatever their politicians tell them. Rather, it’s because the public sees the court’s verdicts year after year and draws its own conclusions. This decline will continue unless, and until, the court’s monolithic composition changes.
The writer is a journalist and commentator. She is currently a JINSA Visiting Fellow.