Supreme Court President Dorit Beinisch and her mentor and predecessor, Aharon Barak, have no one but themselves to blame for the difficulties the Judicial Selection Committee has encountered in making new court appointments, Hebrew University law professor Shimon Shetreet told The Jerusalem Post in a recent interview.
In accordance with the famous physics maxim, "every action causes a reaction," the conduct of the Supreme Court justices over the years regarding the election of new colleagues has led directly to the appointment of a determined and ideologically committed bloc of politicians that has rebelled against the old ways.
In recent years, Shetreet told the Post, the appointment of justices has either been the sole prerogative of the Supreme Court president or been based on agreement between the court president and the justice minister. This, despite the fact that by law, a committee including the Supreme Court president and two other justices, the justice minister and another minister, two MKs and two Israel Bar Association representatives is charged with electing them.
At times, when the justice minister acted as a lackey of the Supreme Court president because he either bowed before his authority or because he was intimidated by the president's superior legal knowledge, the court president decided who would join the circle of justices and the committee rubber-stamped his choice.
If the minister was a stronger personality and knew how to wheel and deal with the Supreme Court president, they negotiated and compromised.
This, according to Shetreet, was the situation when justice minister Meir Sheetrit agreed to Barak's choice of Justice Ayala Procaccia in return for the appointment of Justice Edmond Levy.
In those days, Shetreet continued, no one could be appointed to the Supreme Court if the bloc of three justices opposed the choice.
"It's the court that caused the politicization of the process," he charged. "The justices acted in concert as a bloc and always coordinated their positions."
In those days, the differences were mainly over personalities. The classic example was Beinisch's veto of Tel Aviv law professor Nili Cohen for no apparent substantive reason.
Over the years, however, the Supreme Court began to deal increasingly with issues related to the debate in Israel over the administered territories, including the settlements, the illegal outposts, the separation barrier, the unilateral withdrawal from Gaza and many other matters.
Its decisions often angered the Right, which accused it of being monolithically left-wing and of trying to undemocratically force its opinion on the majority of the nation even though its members were not elected by the people.
Shetreet agrees that the composition of the court was not reflective of Israeli society.
"The Montreal Universal Declaration on the Independence of Justice adopted the idea of a 'reflective judiciary,'" said Shetreet. "It was accepted all over the world but not here.
"Today, the Supreme Court observes gender equality but is not reflective of geographical and social diversity."
Another milestone on the road to reaction was Barak's refusal to approve justice minister Tzipi Livni's nomination of Ruth Gavison to the Supreme Court. Gavison was an outspoken critic of Barak's "activist" approach and he refused to consider her for that reason.
In recent years, there were several initiatives to change the situation by the growing number of court critics. The Knesset passed a law explicitly aimed at the three Supreme Court justices, forbidding members of the Judicial Selection Committee to act as a bloc. It also approved a law sponsored by Likud MK Gideon Sa'ar requiring a majority of seven members of the nine-member selection committee to approve new Supreme Court appointments.
Finally, the Knesset recently broke a 27-year-old tradition by appointing an MK who did not represent the opposition consensus as the second legislator on the committee.
There was nothing wrong with this move, said Shetreet. MK Uri Ariel (National Union) was as legitimate a public representative as any other opposition lawmaker.
On the contrary, if anyone was playing fast and loose with the law, it was the Supreme Court justices, who insisted that only district court judges who had served as acting justices for a nine-month period were eligible for consideration as permanent appointees to the Supreme Court.
In insisting on this, the justices were trying to outflank the Judicial Selection Committee, which does not have a say in choosing acting justices but only permanent ones.
"I say that this is illegal and if it is legal, it is improper and undermines the basis upon which the system of appointing justices operates," said Shetreet.
Shetreet has just finished co-chairing an international conference titled "The Challenges of the Standards of Judicial Independence" at Cambridge University. These standards include the following provision, he told the Post:
"The principle of democratic accountability should be respected and therefore it is legitimate for the executive and legislature to play a role in judicial appointments, provided that due consideration is given to the principle of judicial independence."
Another provision states, "The process and standards of judicial selection shall give due consideration to the principle of fair reflection by the judiciary of the society in all its aspects."