Justices block election to fill 3 Supreme Court vacancies

Say Judges Election Committee not authorized to elect, citing government's caretaker status.

By DAN IZENBERG
friedmann beinisch 248.88 aj (photo credit: Ariel Jerozolimski)
friedmann beinisch 248.88 aj
(photo credit: Ariel Jerozolimski)
The three Supreme Court justices on the Judges' Election Committee on Monday used the new law calling for a majority of seven members to appoint new justices to veto a meeting scheduled to fill three court vacancies. The justices told the other members that the committee was not authorized to elect new justices because following the resignation of Prime Minister Ehud Olmert the previous evening, the government was a caretaker government. Four of the nine members of the committee, including its chairman, Daniel Friedmann, are politicians whose futures will shortly be in question if Kadima's new head, Tzipi Livni, fails to form a government. Even if she does, it is not certain that Friedmann and the other minister on the committee, Gideon Ezra, will continue to serve in the cabinet and therefore be eligible to serve on the committee. Friedmann and several other committee members, were furious at the justice's position. "This is the worst stinking maneuver ever perpetrated in the legal world," said one member of the committee whose name was not revealed. Supreme Court President Dorit Beinisch, speaking Monday evening at the annual celebration of the opening of the legal year at the Israel Bar's office in Jerusalem, said that the three Supreme Court justices who refused to appoint judges in chaotic political times did so out of the belief that their decisions might have serious political implications on a future government. "We knew we would pay for this decision, but it was more important for us to stay true to ourselves. There was people who didn't support this decision... We thought it appropriate that a temporary government not be too involved in appointing judges," Beinish said. Friedmann replied that, "Nine days after [former] prime minister Yitzhak Rabin was murdered, a committee for appointing Supreme Court judges... approved the appointment of Supreme Court judges Yaakov Tirkel and Dorit Beinish, a decision that has held till this day." "Unfortunately, Israel's political system is not stable. Ministers come and go, but after a point, the citizens suffer and we need to address this injustice," Friedmann continued. Israel Bar chairman Yori Geiron, who represents the Bar on the committee, said that all six remaining committee members opposed the justice's position, even though some, including him, believed that justices' argument was sincere and based on a legitimate legal position. After the committee members became embroiled in a fierce argument over the justices' position, they decided to summon Attorney-General Menahem Mazuz to express his opinion. Mazuz said there was no reason for the committee not to make the new appointments. Nevertheless, the justices would not budge. They based their legal argument on a High Court verdict handed down in December 2005 regarding a petition protesting the appointment of new members to the Kiryat Ono religious council while a caretaker government was in office. Although the court rejected the petition, it established the criteria which must be taken into account in balancing the arguments for and against allowing civil service appointments to be made while a caretaker government is in office. According to the judges, in the case of the Judges Election Committee, the criteria against allowing the appointments outweighed those in favor. Another motive on Beinisch's part could be that she wants to wait to see what happens in the coming weeks in the political realm in the hope that Friedmann will soon be out of the cabinet. The relations between the two have been badly strained ever since Friedmann was appointed to the justice ministry, primarily because Friedmann has been trying to introduce a series of laws and other changes aimed at weakening the Supreme Court and its president. Right now, the two are at loggerheads over the appointment of Jerusalem District Court Judge Judith Tsur, whom Friedmann wants and Beinisch does not. On the other hand, Beinisch wants to appoint Tel Aviv District Court Judge Uzi Fogelman. However, because of the new law requiring a majority of seven committee members to appoint a new justice, Beinisch cannot obtain Fogelman's appointment unless she gives Friedmann something in return. And Friedmann wants Tsur. According to this way of viewing the latest rift between the two, the best way for Beinisch to get Fogelman without getting Tsur is to get rid of Friedmann as quickly as possible. Geiron told The Jerusalem Post that it may take as long as until April before the three vacancies are finally filled. If Livni fails to form a government, new elections will probably be declared in November and held in March. After that, it will still take the winner time to form a new coalition and in the mealtime, the Pessah holiday season will begin. Since under Friedmann, the court is not allowed to appoint acting justices, it might have to function at 80 percent of its strength for months to come despite its heavy caseload.