The court president is right, and the justice minister is right too.
By CALEV BEN-DAVIDGaza kids(photo credit: )
Justice Minister Daniel Friedmann is a "demagogue" whose "incitement against judges" poses a "danger against democracy" that threatens to turn Israel into a "Third World nation."
Supreme Court President Dorit Beinisch and her predecessor Aharon Barak are "judicial dictators" whose "elite claque of judges" threatens to "usurp democracy" by "undermining majority rule."
That's a very tiny sample of just some, and by no means the most extreme, of the language being used in the current debate about the future of the courts system - in particular the Supreme Court. The rhetorical brickbats seemed to reach a fevered pitch this week, with both sides in the dispute making headlines with their charges against the other.
At least so far, none have been posted up on roadside billboards - as was the case with the slogan "Impeach Earl Warren!" across the American South in the 1950s, when that US Supreme Court chief justice spearheaded the integration of American schools. But the level of political passion and personal animosity over the court has reached such unprecedented levels during the past year, one might expect Al Pacino to show up soon and scream at all sides: "I'm out of order? You're out of order! This whole court is out of order!!" (And Justice for All, 1979)
IT'S NOT surprising that this debate generates such strong emotions, since it overlaps to a significant degree with the yawning Right-Left political divide in this country over key peace-and-security issues, as well as the religious-secular debate.
The Supreme Court has been widely regarded as Israel's most stalwart liberal institution since Barak took over as its president in 1996, and was succeeded by his protege Beinisch two years ago. They significantly widened the scope of the court's judicial purview over such matters as the route of the security fence, the legality of targeted killings, the status of same-sex relationships, conversion and citizenship procedures, and many other human and civil rights issues, often making rulings which fall more to the left side of the local political spectrum.
The result has been growing sentiment within the elected branch of the government that the court's authority over legislative matters, its power of judicial review, needs to be curtailed. That campaign moved into high gear last year with Prime Minister Ehud Olmert's cabinet appointment of Friedmann, a widely respected legal academic whose attacks on the Barak/Beinisch court weren't tainted by the charges of narrow self-interest lobbed against its more political critics.
Friedmann has proposed a number of judicial reforms, the most contentious being a change in the composition of the selection committee that chooses Supreme Court justices. Currently, the majority of the nine-member committee is made up of five judges and lawyers, together with a minority of four politicians. The result, according to the court's critics, is that a strong president like Barak can easily influence the appointments process to insure the bench remains packed by ideologically like-minded judges, such as Beinisch.
The justice minister wants to tip the balance on the committee to the politicians, arguing this would make it more representative of the nation's democratic majority. Beinisch & Co. say this would erode the court's independence; Friedmann and his supporters argue it would make it more democratic.
Who's right? In that great Jewish tradition, the president is right; the justice minister is right; and if you say they both can't be right, well, that's right too.
FIRST OFF, let's try to rid this disagreement of some of its political baggage.
In principle there's nothing wrong, or at least improper, with the idea behind Friedmann's proposal. In the US and many other Western democracies, elected officials - or even the voting public itself - are without argument granted the decisive role in selecting judges, some of whom needn't even come from within the judiciary or active legal profession (former California governor Warren, for example).
Yet those who support maintaining the current judicial appointments procedure make a good case when they argue that our own political system still has some serious structural problems - and no constitution, to boot - which make it far better that this not be the case here.
It is indeed more than ironic that many of those who support Friedmann's proposal, and even more radical court reforms, are among the most ardent proponents of the view that the current electoral system is so dysfunctional that it is stifling the genuine democratic will of the Israeli public. If that is the case, though, then why in the world should we let this fatally flawed political establishment have the final say on the judiciary as well, before it itself is reformed?
The reason behind this glaring contradiction is the bad faith behind the arguments of many of the court's critics. Their desire to limit the power of judicial review is based largely on a partisan political view that this would help retard the liberal agenda of the Barak/Beinisch court, rather than a long-term evaluation of how our governmental system should maintain a proper balance of power among its branches.
Yet this still doesn't mean that Friedmann's criticism of the court and his proposal for the selection committee is wrong. If an outstanding legal academic such as Ruth Gavison is rejected by the committee largely on grounds that she doesn't fit into an ideological spectrum that Barak and Beinisch feel comfortable with, then there is in fact a problem here that deserves fixing.
ONE SOLUTION might be some sort of compromise proposal. For example, the independence of US Supreme Court justices selected by the executive and approved by the legislature is at least theoretically maintained in making them lifetime appointments - as opposed to the 70-year age limit now mandated on our court.
Friedmann has advocated reducing the terms of judges; perhaps, though, his reform on the selection committee should go along with amendment that the age limit on the court be raised upward (especially now that people are living longer), including for sitting justices, so the court would have an added level of insulation from the vagaries of political fashion.
Accepting this type of compromise would mean both sides abandoning the kind of take-no-prisoners approach that has so far characterized their debate. But if our sharpest legal minds cannot demonstrate a more judicious approach in conducting this discussion and resolving its issues, what hope does it hold out that all - or any - of the other thorny disagreements in this society will one day also reach a reasonable and just conclusion?
calev@jpost.com
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