First there was a young woman. She did or did not act flirtatiously and warmly around Israel’s Minister of Justice, Haim Ramon. He, after being hugged quite tightly by the young soldier, seemed to have misread the warmth of her breasts rubbing against him in that ill-fated pose for a photograph as a signal that she really liked him. Ramon stuck his tongue in her mouth to test his theory. He quickly withdrew it, realizing that her tongue was avoiding his…but the damage was done. A couple of weeks ago the Kiss led to Ramon’s conviction in a court of law and his permanent removal from his Ministerial position.

There was a Prime Minister by the name of Olmert. He did not become Prime Minister because he was exceptionally gifted or loved by the Israeli populace. Rather, he earned his position on the comatose wings of Ariel Sharon, his mentor and master for a number of years in which he led Israel. Olmert got lucky and got the leadership slot, and had enough of Sharon’s patina rub off on him that even though serious doubts were cast regarding Kadima’s promised withdrawal from the West Bank, they still managed to get 29 seats in the Knesset.

There once was a war launched by Hizbullah against Israel in the form of attacks on its soldiers and simultaneous attacks on a civilian area and other targets. Olmert, along with Halutz and the underqualified Defense Minister, Peretz, led Israel into this war with little forethought, little foresight, poor planning, poor leadership, and a result that has harmed Israel gravely while strengthening its enemies. Halutz finally resigned some months after the war, but Olmert and Peretz remain.

There once was a plan to have Israel leave the majority of Judea and Samaria AKA the West Bank, and withdraw to a line behind a security barrier that stood at around the 7.5% line of the West Bank. This was a Sharon plan, bequeathed to his party, Kadima, and his successor, Olmert. The problem arose a few months into Olmert’s prime ministership when war broke out with Hizbullah and he ran a travesty of a war and a bigger travesty of a solution to that war in the form of UNSCR 1701, which, according to the papers, is being violated regularly by Hizbullah under the blind eyes of UN peacekeepers. The Israeli public learned from this war what happens when Israel withdraws from an area without a diplomatic settlement, and then had the lesson reinforced daily with Qassem rockets launched from a Jew-free Gaza. Israeli support for withdrawal from the West Bank has diminished greatly, along with confidence in their leader, Olmert.

There once was a lawyer and his name was Ehud Olmert. What did this former lawyer do when the platform which got him elected was no longer tenable? What did he do when his approval ratings were in the lower double digits? What did he do when he had been fighting to survive even as investigations swirled around him from all directions? Well, he replaced the man who gave the ill-conceived Kiss to the flirtatious young female soldier: the Minister of Justice. Olmert gave the job to a brilliant legal scholar, Daniel Friedman, who brings to the job serious qualifications and one little problem.

Once, not so long ago, there was a well-regarded and important legal scholar who had protegees. One of this scholar’s protegees was up for a position in the Supreme Court of Israel. Having trained her himself, this legal scholar supported her candidacy strongly…only to be disgusted when the prevailing justices ruled against her elevation to the Court. He was even more disgusted when protegees of the Chief (now ex-chief) Justice were elevated and far more incensed when one of those whom he considered to be an inferior judge was appointed as the new Chief Justice. That important legal scholar is Daniel Friedman. He is Israel’s new Justice Minister.

Once upon a time a new Justice Minister had a first order of business. What was it? What was Daniel Friedman’s first serious action?

An attempt to remove the Supreme Court’s right to overturn laws created by the Knesset.

Yup, Minister Friedman is convinced that the judiciary is far from perfect and that its problems are well represented at the top – how else can one explain the elevation of ninkompoop justices instead of his beloved protegee – in the Supreme Court. How can such an inferior court have the power to overturn laws without oversight? How does the judiciary, unelected and unanswerable to the public, take steps to nullify the choices made by elected representatives? Friedman believes they should not be in a position to do so. He has now taken it upon himself to change the law so that the final say will rest with the Knesset, not the judiciary.

Once upon a time, there were people of stature and quality guiding Israel; people who could see past their own bellies. Those people are mostly gone and the new generation of leaders are far more selfish. Once upon a time there was a sense of ethics and responsibility among Israel’s leaders so that (as a recent op-ed pointed out) a prime minister would resign if his wife had $10,000 in foreign funds in a foreign bank account in violation of Israeli law. Those times are gone. Today’s PM won’t even quit after having cost dozens of soldiers their lives in a poorly managed and conceived war.

Once upon a time, there were scandals in Israeli government circles, but one cannot imagine a time when the President, Justice Minister, Prime Minister, Deputy Prime Minister, other ministers, Knesset members from different parties, head of the Tax Authority, the PM’s long-standing personal assistant, Chief of Police and many of his deputies, were all involved in criminal investigations, indicted on criminal charges or had clouds of suspicion about criminal activity raised by investigative bodies. This, of course, only a year after the former PM’s son was convicted of violations of the law and sent to prison. This after the second last election when the ruling party then, the Likud, voted in high ranking members who were allegedly connected with the Israeli underworld.

Once upon a time, there was a seriously flawed election system in Israel. It remains that way. Although parties are answerable to voters, politicians are not.

Once upon a time there was Zionism and as an ideology it drove the leadership to act. While that remains true for a few, many (most?) Israeli politicians have become cynical caricatures of their predecessors. In fact, it is sadly becoming true that the Israeli government is becoming a caricature of a functioning democracy, if corruption is a barometer – not unlike a banana republic. Fortunately, there remain some people who are able and willing to investigate and challenge Israel’s leaders, but the public cannot trust that its leadership will care about the welfare of the state instead of their own welfare. Even the IDF is beginning to stink a little and everyone is just hoping that the new Chief of Staff will be able to clean house and change the established and institutionalized weak spots.

It is to these folks that Daniel Friedman wishes to leave sole authorship over the truly important decisions about Israeli society. Instead of leaving the final recourse regarding the fairness of laws to justices, who may not adhere to rules of impartiality perfectly, but at least try and who are immune from many of the pressures that exist for the politicians regularly, this man with the personal ax to grind, has determined that those people who have proven themselves corrupt, indecisive, ideologically inconsistent, opportunistic, swayed by influence and money and who are not even directly elected so that their actions face no serious consequence if they know how to play the game within their own party…that these people should be the first and last stop for all laws of the land. He believes that these people should decide instead of impartial jurists who have few such outside influences. Does he not see who here is the real threat to Israeli democracy?

In the United States, the Supreme Court and the judiciary stand equal to the two other branches of government. It would be hard to claim that the US Supreme Court isn’t independent and that its decisions regarding the constitutionality of laws aren’t extraordinarily important and valued within society. It would also be hard to argue that the very finest legal minds are always the ones who make it to this court, since, as we all know, politics and timing play a critical role in who gets picked and who makes it in. Still, the importance of this institution is incalculable and I would argue that Israel’s Supreme Court is no less important. Perhaps, in some ways, in light of the corruption and party system in Israeli politics, it is even more important to the stablity and honor of Israeli democracy for it stands as the last line of defense for those who are not represented in the mainstream or who do not have power brokers who can negotiate with the politicians on their behalf. To those people and organizations, there is one address however, where they will receive a hearing and a fair ruling: Israel’s Supreme Court.

Let’s hope Daniel Friedman fails in his attempt to change the system.

So far I’ve seen two articles (Jpost, Haaretz) covering this topic, although I’m sure others exist.

About the author

themiddle

11 Comments

  • Nice, Middle. As a partisan of judicial review (a doctrine nowhere found in the US Constitution but, thank God, bequeathed to us by Justice Marshall in Marbury v. Madison), I think it’s an essential bulwark against tyrannical majorities and crucial to protecting minority rights.

    However– can a Supreme Court thrive over the long term without a Constitution? Isreal seems closer to a plebiscitory democracy than a constitutional one: the Israeli right, as I understand it, opposes a written constitution as dangerously secular.

    A Supreme Court needs a supreme law. Without the latter, Mr. Friedman can make a perfectly respectable case that the Israeli Supreme Court should defer to the professional pols. Indeed, without Marbury v. Madison, Congress and the Executive would’ve fought an enervating, destructive battle over whose interpretation of the law had more democratic legitimacy. It’s hard to imagine America surviving such a struggle.

  • Seraphya, although my point was to discuss Israel, I’m happy to address your comment. Having justices or lawyers appointing each other does not have to lead to a negative outcome. On the contrary. While it’s true that it may lead to conformity and similar candidates at certain periods, ultimately there is a good chance that the judiciary will apply cogent and healthy parameters for selection of justices. Surely having experts choose the best among their peers will offer a superior outcome to a President choosing inferior candidates for the judiciary because their politics are aligned with his.

    What might happen is that justices with peripheral views may not be nominated or elected to office by fellow jurists too often, but overall there’s a great likelihood that the justices or lawyers who are best recognized by their peers as being superior will get the nod to move to the judiciary. I also suspect that salaries in this type of system and higher salaries will improve the pool of available attorneys.

    Tom, I think a Supreme Court is as good as its members and their values. Israel’s Court may make errors at times – what court of judge doesn’t – but I believe that the lack of a constitution has not harmed their ability to make good decisions. The problem they encounter, which is one of the reasons we are watching this power play by Olmert, is that without a constitution there is far more malleability in interpretation of laws and ultimately whatever decision is made, it is often (and sometimes correctly) perceived as the justices – unelected and with tenure – creating the law itself.

    I believe this is a legitimate criticism. However, in Israel this situation has arisen partly because the politicians have refused to address certain issues and have left a vacuum that needs to be filled somehow. The judiciary fills it by looking at Israel’s Basic Laws – which as I understand, do carry significant weight, if not that of a constitution – and when those don’t provide sufficient guidance, also considering earlier laws from the region including British Mandatory and Ottoman laws. It’s not as if there isn’t a foundation.

    Having said that, I believe the issue of creating a constitution in Israel is far more complex than some groups’ opposition to a set of secular laws, but rather I believe there are numerous interest groups that oppose such a document because it will lock in a system that is currently fluid and may provide them with an advantage in the future. Thus, the Orthodox have an interest in waiting while their numbers increase, the Right has an interest as it seeks to establish itself better in Judea and Samaria, the Left does not wish to have the Arab minority treated in an inferior way but like all other groups can see how a secular, liberal constitution cannot be exclusive and will therefore diminish from the idea of a “Jewish state.” Etc.

    It’s far from perfect, but somehow they’re improvising and making it work. I think the key issue is the perception of fairness and integrity of the Court, and unfortunately many partisan hacks – and I include among them many of today’s Israeli politicians – are happy to impugn the integrity and motives of the Court when decisions don’t go their way.

  • Hmm, unpersuaded that judges selecting amongst themselves is ideal– it seems an equally-extreme approach to electing judges via popular vote (the approach most likely to yield mediocrity– and worse). At the risk of ethnocentrism, the US Const.’s scheme of Presidential nomination/Senate advice and consent– balanced with Art. III’s lifetime tenure and fixed salaries– has served well.

    Surely, there must be some element of democratic vetting and approval– with insulation afterwards from political pressure.

    Meanwhile, I think you’re a tad uncharitable toward the brainpower of the US Court. The number of stinkers, at least in recent history, has been very few (Blackmun, Thomas, Burger, perhaps Souter), with the rest exceptionally competent (e.g. White, O’Connor, Stevens, Ginsberg, Kennedy) if not indeed extraordinarily talented (Brennan, Rehnquist, Scalia, Breyer).

  • I didn’t at all mean to be dismissive of the Court as much as the system. I actually think the line-up is a fairly good one and historically has proven to be a good one. However, I was referring to potential abuse of the system. For example, Harriet Miers exemplified how bad the system can get. She had no business being proposed as a candidate. But the worst part is that it allowed for manipulation of the system because she was such an improper candidate that after her candidacy any candidate would have looked like a winner.

    The other problem, as we well know, is that politics often dictates the choice of candidate. Thomas is an example of a very problematic candidate where politics played a prominent role in his candidacy.

    Aside from that, I believe the current compensation system for judges is extremely problematic. Roberts, for example, was making more than a million dollars a year as a partner in private practice. By joining the judiciary, he lost around 75% of his income. 10 years of that and he leaves $7.5 million on the table – serious money and enough to make many judges leave the judiciary and many qualified attorneys to never consider it as a career option.

    To your point about democratic vetting and approval, I completely agree. In Israel, however, I think the difficulty lies – again – in the difficult state of the government and its members. How can a politician who is being investigated nominate a judge, argue in favor or against and then vote for the judge? As I write, the PM and Deputy PM as well as a couple of ministers and some Knesset members are under investigation for a variety of improprieties. While we may allow them to continue to govern because they are not indicted or convicted, the idea that they should be deciding on the next justices seems inappropriate, at best. I will also point out that I believe Olmert brought Friedman in precisely as a “fuck you” to the current Court. Do we want politicians to have this power over the judiciary?

  • Well, here’s hoping that the Israeli Supreme Court can weather the winds that now buffet it.

    True enough about Miers, but she at least failed to make it through the demanding Senate process. There were politics all around, both on the Bush and Senate sides, but in the end the system worked, as it did in the cases of Fortas and Carswell under Nixon.

    From a distance it often appears that Israel suffers from too much democracy. Maybe this is an example. It may be risable advice, but Israelis might want to contrast the German experience under Weimar and the Federal Republic (the latter features a Constitutional Court in Karlsruhe).

  • The big problem that rightists in Israel have with the concept of judges selecting new judges is that it has produced ideological uniformity in the Supreme Court. Judges only select new judges that share their political opinions while freezing out those who do not.

    In the United States, because the system is different, there has always been a mix of conservative, liberal and centrist judges on the Supreme Court. Conservative presidents appoint conservatives judges, liberal presidents appoint liberal judges. Sometimes the conservatives get a bit of a majority, sometimes the liberals do, yet in the end all ideologies in society have some voice in the US court.

    If the US court was only made up of conservatives who could select their own replacements, would American liberals recognize its legitimacy to make important decisions? What about vice-versa? The answer: Probably not.

    Such is the case in Israel. Because the judges appoint themselves, the Supreme Court has become a near exclusive leftwing bastion where other opinions are not heard. This undermines its legitimacy in the eyes of many.

    Almost everyone agrees with the need for a strong independent judiciary. However, for this judiciary to function properly it must reflect Israeli society as a whole, not only the interests and opinions of a certain ideological faction. To accomplish this, the system needs to be modified.

  • The Israeli Supreme Court is neither bounded by a written constitution nor checked in any way by a democratic appointment process. Not to mention the fact that it barely recognizes a “political question” doctrine and extraordinarily permissive standing requirements.

    There is an argument to overlook these problems. After all the Court is a bullwark of liberal principles, while an Israeli democracy in which Avigdor Lieberman has emerged as a leading political figure has serious illiberal tendancies.

    But surely Bagatz can stand to have the views of a stalwart civil libertarian like Ruth Gavison on the court without any threat to the Court’s traditional role as guardian of Israel’s liberal heritage? Would it be so bad for the Court to prod Israeli democracy to function more effectively rather than reversing what it sees as that democracy’s worst errors?

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