Legal Affairs: Raising the bar

The practice of appointing only district court judges with prior experience on the Supreme Court has come to an end.

By DAN IZENBERG
August 27, 2009 21:15
dorit beinisch 88 298

Beinisch 248.88. (photo credit: Ariel Jerozolimski [file])

 
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After years of deadlock, personal animosities and ideological disputes, it seems miraculous that the Judicial Selection Committee was able to agree on three new Supreme Court justices at the beginning of the week. Until the last moment, it looked as though it would be impossible to bridge the gap between the bloc of three right-wing politicians and the bloc of three Supreme Court justices in the committee, both of which had veto power over all nominees according to a law passed in the previous Knesset. Not only did the committee finally reach an agreement, but there appears to be universal consensus that Tel Aviv District Court Judge Uzi Vogelman, Haifa District Court Judge Yitzhak Amit and Beersheba District Court Judge Neal Hendel were all excellent choices. This is certainly true judging by the reactions of two people who should know, the chairwoman of the Haifa District Bar, Rachel Ben-Ari and the chairman of the Southern District Bar, Danny Elyagon. "He is brilliant, very knowledgeable, creative, a great jurist, very well-versed in all areas of the law, innovative, hard-working and efficient," said Ben-Ari of Amit. "He is very humane, pleasant and modest, and treats everyone as an equal." Ben-Ari also said Amit's ideological views were unknown. On the one hand, his judgments are liberal. On the other, he treats parliamentary and judicial legislation with respect. "He has a strong sense of justice," she added. Elyagon was just as complimentary about the new justice from the South, Neal Hendel. "He is an outstanding judge, very versatile and knows about a variety of legal topics, both in civil and criminal law," said Elyagon. "He has a pleasant judicial manner, is able to find good legal solutions and writes decisions with great depth." According to Elyagon, it was the Israel Bar that initially advanced the candidacies of both Amit and Hendel to the Judicial Selection Committee. Thus, it was the Bar, rather than Justice Minister Yaakov Neeman or Supreme Court President Dorit Beinisch, which was responsible for the election of two of the three new justices. INDEED, THE committee vote on Sunday was revolutionary. It marked the first time that the president of the Supreme Court, or the minister of justice, or both, did not determine who would join the highest court in the land. The system enabling them to do so was based on their right to appoint district court judges to the Supreme Court as acting justices for periods of six months to a year. There was nothing illegal about the temporary appointments. According to Article 10 (a) (2) of the 1984 Law Courts Law, "The minister of justice may, with the agreement of the candidate and the agreement of the president of the Supreme Court, temporarily appoint a district court judge as a Supreme Court justice, president of a district court, president of a magistrate's court or a judge on a magistrate's court." According to former justice minister Daniel Friedmann, at some point through the years - he does not remember when it began - the president of the Supreme Court and the minister of justice began to abuse the law, which, he said, was meant to be used in emergency situations only. Unlike permanent appointments, temporary ones do not require the approval of the Judicial Selection Committee. The exploitation of the law began when the Supreme Court president declared that for a district court judge to be eligible for permanent appointment to the Supreme Court, he must first have served as an acting justice. The rationale behind this policy was that by allowing district court judges to serve on the Supreme Court without making a commitment to them, the Supreme Court justices would have time to see them in action and decide whether they had the necessary qualities. At the same time, the system gave the justice minister and the president of the Supreme Court a monopoly on determining which district court judges - the majority of appointments - would sit on the Supreme Court. When the balance of power between the two was equal, they could bargain with each other as to who would be given temporary appointments. When the prestige of the president intimidated the minister, he could choose for himself. In all circumstances, the minister and the Supreme Court president had veto power, since neither could make a temporary appointment without the other's consent. For years, the system was accepted. In fact, Friedmann was the first minister who refused to go along with it. He told The Jerusalem Post that when he took up his post in February 1997, there were five vacancies on the 15-person court and the situation was intolerable. Because of the crisis, he agreed to make two temporary appointments. The judges chosen were Vogelman and Beersheba District Court Judge Yosef Elon. Friedmann said he had also proposed Amit and Hendel for the appointments. He said Beinisch rejected Hendel, and refused to discuss the Amit proposal. By the time the terms of Vogelman and Elon had ended, the Judges Selection Committee had chosen two new permanent justices, Hanan Meltzer and Yoram Danziger, both of whom were private lawyers and therefore were not subject to the condition that they had to first serve as acting justices. Friedmann said that after Meltzer and Danziger were appointed, he refused to consider any further temporary appointments. After Friedmann's departure, Beinisch may have thought she could revive the long-standing practice. Indeed, the new minister of justice, Yaakov Neeman, was willing to go along with it, as long as it did not undermine the prospects of filling the three remaining vacancies. He accepted Beinisch's candidate, Vogelman, and in return proposed Elon, who had also served temporarily. More than anything else, however, Neeman wanted results. But there was no way to achieve these results according to the old practice. The bloc of three right-wing committee members stood in the way. They insisted on appointing a candidate of their own choice who had not served temporarily on the Supreme Court. They threatened to block the other candidates with their three votes if they did not get their way. When Neeman agreed to yield on Elon and Supreme Court Justice Edmond Levy decided to break with Beinisch and support Hendel, the intransigents on both sides caved in. The right-wing bloc agreed to vote for other candidates, and Beinisch dropped her insistence on prior Supreme Court experience. The outcome means that the practice of appointing only district court judges with prior experience on the Supreme Court has come to an end. It is hard to believe that the public or the Knesset will agree to see it revived. Perhaps neither Beinisch nor the right-wing bloc was happy with the outcome of the vote, but one way or another, they ended up contributing, however reluctantly, to a good choice.

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