What's going on with the battle over judges’ conflicts of interest?

EXPLAINER: "This is another positive step toward advancing transparency,” said Justice Minister Avi Nissenkorn.

Esther Hayut (photo credit: MARC ISRAEL SELLEM)
Esther Hayut
(photo credit: MARC ISRAEL SELLEM)
The judicial branch will start publicizing conflict of interest lists for each judge, according to a release disseminated late last week by the court spokesperson’s office and Justice Minister Avi Nissenkorn.
The statements said that the first list would be publicized on the court’s website in September, and that the lists would be voluntarily updated from time to time.
“This is another positive step toward advancing transparency,” Nissenkorn said. “This is further testimony that we are blessed with a high-quality and professional judicial system.”
However, neither Nissenkorn nor the court statement mentioned a series of revelations in May by Israeli journalist Kalman Liebskind in The Jerusalem Post’s sister paper Maariv, which led to this significant policy shift.
Liebskind disclosed that Supreme Court President Esther Hayut and Justice Menachem Mazuz may have dealt with issues implicating potential conflicts without flagging the issues to the parties involved.
There have also been past similar exposes about Justice Anat Baron, as well as other judges. But the issue captured greater headlines in May, since at the time Hayut and the High Court were deciding legal issues relating to the Judicial Selection Committee on which three justices sit and compete for influence.
One of the lawyers for the Likud explicitly said he viewed the justices as being conflicted when ruling on the issue, but Hayut swatted the suggestion away based on the procedural idea that presently the committee has no plans to convene.
For years, various groups trying to perform oversight on the judicial branch have demanded a range of greater transparency measures, including publication of conflicts of interest.
Reportedly, Hayut seriously weighed the issue (and her predecessors may have also). Yet, for years, the Supreme Court could not make peace with this move.
What are the some of the potential conflicts that Liebskind pointed out?
He noted that Hayut regularly referred cases for arbitration to a close friend, who made significant money on the arbitrations.
Liebskind revealed that Hayut had hired a law clerk who was the daughter of a lawyer who she has listed as being such a close friend that she cannot sit in judgment for cases where he is the lawyer.
In addition, he wrote that Hayut sat on appeals for Baron back when Baron was still a district court judge, despite the two being close friends.
A few issues need to be clarified.
None of the above conflicts are black and white and the law does not explicitly prohibit them.
Conflicts like that would include ruling on a case where a husband or child was the lawyer for one of the sides or was the lead personality for one of the litigating sides.
The first two above examples do not even involve rulings, which is the classic conflict of interest question for judges. Rather, they involve referrals and internal court job offers.
The third involves court rulings, but none of the three involve family members.
They are all questions of friendship, a very gray area when it comes to conflicts of interest law.
Whereas family members are viewed as a conflict no matter how close one is to the family member, only a judge’s own subjective honesty can be relied on for which friends are too close to remain objective and for which friends they can remain neutral.
Of course, this is a problem, because every judge will have the incentive to minimize the number of people they list as having conflicts. Or even with people who they list, the list is only internal within the judiciary and not all of the parties involved in a case are listed in official documents.
This means judges can and have apparently allowed themselves to sit on cases, offer jobs or make referrals in situations that could implicate a conflict, without anyone knowing the wiser.
Enter transparency.
If the judges publicize their conflicts online, now the parties themselves can perform due diligence and challenge judges over their connections and potential conflicts.
So it would seem that publicizing the conflicts list is a good move and probably should have been done long ago.
What held Hayut and the court back?
The likely answer is a combination of not wanting to give up control of the issue and the possibility of unintended abuse by litigating parties.
In the IDF, before any criminal probe of a problematic incident that can be held against soldiers, the soldiers undertake an operational debriefing for which they are guaranteed immunity so that the army can find out what really happened to improve its fighting efforts.
Likewise, judges may have been more subjectively honest as long as their list of close friends was kept confidential. Now there is a disincentive against revealing their close friends.
Besides that, the main purpose of courts is to provide quick and fair rulings to resolve disputes.
But some powerful parties have unlimited funds and their interest is to drag disputes out for as long as possible to cause the other party to settle or cut a plea deal.
Publicizing the list now gives a major new easily available weapon for such parties to use.
It doesn’t really matter whether there is a real conflict or not. Any time a party seeks to disqualify a judge, the legal proceedings can easily be dragged out for an additional period of months.
Given that a large and growing minority of the public have little confidence in the judicial branch, the “medicine” of the publicized list will probably be seen by many political and legal officials as worth the risk.
But worth it or not, we will all find out starting September.