Judicial tyranny in Israel

In the U.S. there is a perennial debate over the proper role of the courts, particularly the Supreme Court, vis-a-vis the other branches of government. Some people have accused the Supreme Court of overstepping its powers, to the point of making law instead of interpreting it. Others believe that the Court is operating within its constitutional boundaries. But here in Israel, such debates have been left far behind. The Israeli Supreme Court has arrogated for itself vast powers unheard of in the U.S. or any other democratic country.

In the U.S., federal judges are appointed by the President, and must be approved by the Senate. But in Israel, judges are appointed by a committee dominated by sitting and retired judges. Neither the government nor the Knesset has any say in the matter. In other words, in Israel, judgeship is a self-perpetuating, exclusive, elite club.

Under Israeli law, the Minister of Justice is mandated with the responsibility for appointing presidents and deputy presidents of the Supreme Court, the District Courts, and the Magistrates' Courts. The law also mandates the Knesset with the responsibility for deciding upon the rules governing the tenure of judges. [See Basic Law: The Judiciary (1984) IV. 23(3-4).] Such laws are standard in Western democracies, and are a fundamental part of the separation of powers. In these examples, checks and balances were placed upon the powers of the Judicial branch, by letting the Executive branch decide upon judicial appointments, and letting the Legislative branch determine judicial tenure.

Over the last few decades, however, the Israeli Government and Knesset have abdicated their responsibilities vis-a-vis the courts: The Knesset has failed to pass any laws regulating judicial tenure, choosing instead to allow the courts to make those rules for themselves. (Not surprisingly, the judges decided that their own tenure would be unlimited.) And decisions on the appointments of court presidents and deputy presidents have not been made by the Minister of Justice, but instead by the President of the Supreme Court: As a matter of routine, the President of the Court would simply deliver a list of names to the Justice Minister. Having been reduced to the role of a rubber stamp, the Minster would then obediently make the appointments as he was instructed.

The current Justice Minister, Daniel Friedmann, has decided to take his obligation under the law a bit more seriously. While still open to recommendations from the Supreme Court, he is also interested in getting the opinions of others. To this end, he has proposed the creation of search committees to make recommendations on judicial appointments. The final decisions, of course, would remain with the Justice Minister -- as the law stipulates. He has also introduced legislation that would impose term limits upon judges.

The current judicial establishment in Israel, however, has grown quite comfortable with the overwhelming powers that they have accumulated, thanks to so many years of abdication of responsibility on the part of the Executive branch. So comfortable, in fact, that they have exploded in righteous fury over Friedmann's modest attempts to respect the law and restore some balance. Evelyn Gordon wrote an excellent article yesterday about these judges' hypocrisy.

In a public letter lambasting Friedmann for his attempts at judicial reform, Former Supreme Court Judge Mishael Heshin declared the Supreme Court to be his own personal "home", and that if anyone dared to raise his hand against that home -- a clear reference to Friedmann -- Heshin would "chop off that hand". And last week, former Supreme Court judge Yitzhak Zamir had this to say:

"[Judicial] independence requires the minister to waive his powers to appoint [court] presidents and deputy presidents. Minister Friedmann must withdraw his proposal to appoint search committees [for these appointments]."

Note that Zamir is not denying that these appointments are the job of the Justice Minister. In spite of this, he demands that the Minister "waive his powers" under the law, turning them over instead to his overlords on the courts, in the name of "judicial independence"! Let the rule of law be damned. You might expect such a bizarre statement to spark outrage, but here in Israel, where the people are accustomed to this level of judicial tyranny, nobody even batted an eyelash. In fact, most Israeli political figures, as well as the media, have aligned themselves fimly on the side of the all-powerful judges, and against the rookie Justice Minster.

Americans, who are used to associating the political right with opposition to judicial activism, might be surprised to learn that Friedmann's critics include such figures as Benjamin Netanyahu, chairman of the Likud. Netanyahu, in fact, has promised that if he becomes Prime Minister, he will introduce legislation to "undo the damage" done by Friedmann to the power of the Supreme Court.

Friedmann's attempts at judicial reform are a valiant attempt to restore basic democratic values to the Israeli political system. It's unfortunate that his chances of succeeding are close to zero.