Thursday, December 15, 2005

Israel's Undemocratic Supreme Court

Unless they are toothless, Supreme Courts are sore spots in democratic societies because some of what they do is to review and occasionally invalidate laws passed by democratically elected legislatures and actions taken by executive administrative bodies that can be held accountable via elections or through other democratic controls. Supreme courts aren't elected and they aren't accountable.

When judicial review is employed sparingly and only in special situations, it can be justified as necessary in a scheme of checks and balances and as a way to protect fundamental rights. Sooner or later though, there is apt to be trouble, as in the recent U.S. Supreme Court onslaught against two generations of constitutional law.

As egregious as the Rehnquist Court was in striking down precedents and laws that merited respect, it was unthinkable for the Chief Justice to determine who fills vacancies on his bench. That function is given to the President, with the advice and consent of the Senate. Not so in Israel where in an arrangement that is as bizarre as it is inherently anti-democratic, the Chief Justice plays a decisive role in selecting his colleagues, an irresponsible responsibility that is relished by Aharon Barak, Israel's super-powerful Chief Justice.

As critics have pointed out, Israel's Supreme Court has evolved into an insular body with a self-perpetuating ideology, which is to say that its non-democratic character is multi-layered. Barak now has outdone himself with the apparently successful effort to block the appointment of his "good friend," Professor Ruth Gavison, who is described by David Hazony in the Jerusalem Post as "arguably Israel's most celebrated legal scholar." Lest it be thought that she is an observant Jew and that's why I am advocating on her behalf, Gavison is a secularist, a longtime proponent of peace negotiations with Israel's Arab neighbors and an activist for human and civil rights. She has chaired the Association for Civil Rights in Israel.

She would seem ideal for Aharon Barak's team. But he came out against her a month ago in an extraordinary speech which went beyond the bounds of judicial propriety. While conceding that Gavison "is completely worthy of being appointed a Supreme Court Justice," Barak opposes her because "she is a candidate who comes to the court with an agenda - and that in and of itself is a bad thing…. Her agenda is bad for the Supreme Court" and "I don’t want candidates taking a position regarding the agenda."

I imagine that Mr. Barak and those who have passed his muster all have had frontal lobotomies ere they ascended the high bench. As for Professor Gavison's agenda, she opposes the Supreme Court interfering regularly in decisions made by the Knesset and the Government and this criticism obviously rankles Aharon Barak who holds the opposite view that judges must have free rein. The Gavison sin is her commitment to judicial restraint, a commitment that would put her in the company of some of history's greatest jurists. Under the Barak standard, Oliver Wendell Holmes, Jr. would not have been eligible for the U.S. Supreme Court.

When Barak's intemperate speech evoked a chorus of criticism, Haaretz came to his rescue with a hatchet job. In a long article called "Ruthie's Agenda," we learn that her "fiery temperament is known far and wide," that she is "the dictionary definition of the total opposite of a judge's temperament," that she is "a very unpleasant person" who "lacks minimal judicial disposition." To boot, she possesses "a kind of innate asocial character." And that's only in the first paragraph!

There is a strong sexist aspect to the attack on Gavison.

I know people who have worked with Ruth Gavison and they describe her differently, as someone who understands the importance of compromise and accommodation and as a secularist and scholar who recognizes that in order to prevent Israel from being rent further asunder by cultural and religious conflict, secular and religious Israelis need to reach an understanding. She has the makings of an outstanding member of the Supreme Court. Unfortunately, as they say on these shores, she is chopped liver, thanks to Aharon Barak who is Israel's chief chef.

Sadly, Israel and, in a relevant way, world Jewry, will continue to be ill-served by a Supreme Court that promotes social divisions and exacerbates intra-Jewish conflict, a Supreme Court that has an ideological agenda, a Supreme Court that is unrepresentative and hostile to democratic principles.

Even the most accomplished apologist would have difficulty defending the Supreme Court's role of interfering in the daily routine of government, as it does nearly each day when it sits as the High Court of Justice. That's a high sounding phrase for three or more black-robed people imposing their views on Israel, without regard to questions of standing. What they don't like, they find reasons to strike down.

This system, referred to as "Bagatz" - it should stand for "beyond goofy and zany" - allows the judges to reject even relatively minor governmental appointees and to set aside a wide range of ministerial actions. Anyone with ideological stomach cramps can go directly to the High Court of Justice where injustice is doled out routinely. I doubt that there is another Supreme Court in the world that has acted in so usurpatious a fashion.

Although this incredible approach to judicial authority has been sharply criticized for nearly the entirety of Israel's existence, it is maintained because the judges on the Supreme Court of Israel are power hungry. In the words of one of their former prominent members, this is the right way to do judicial business because the Knesset and Israel's leaders cannot be trusted.

That is some sentiment for a democratic society!