Of Supreme Courts and Judges

Another Tack: Judicial jealousies by Sarah Honig for the Jerusalem Post

To hear John Roberts define judges as "servants of the law, not the other way around" could only trigger acute envy in those Israelis who watched the televised Senate Judiciary Committee sessions in which his candidacy for America's chief justice was painstakingly scrutinized. No Israeli justice-designate is ever thus compelled to reveal his intellectual identity, discuss his predispositions and earn trust.

Most jealousy-generating was Roberts's assertion that "Judges are like umpires. Umpires don't make the rules; they apply them. Nobody ever went to a ballgame to see the umpire."

Nothing like this in Israel's ballpark.

Whatever boners America's Supreme Court may pull, it's at least not irreversibly monolithic. It may occasionally exude liberal temperament but alternately embrace conservatism. Frequently it's undecipherable, even surprising. Its members hail from diverse backgrounds and base their outlooks on divergent sociopolitical orientations. They hardly comprise a closed exclusive clique, empowered to veto the admission of new members who don't fit the mold.

Israel's Supreme Court justices definitely do. Nominees to our highest court are never vetted and must only secure the approval of sitting justices. If they curry favor with those who matter, they've got it made.

A nine-member panel – which consists of three serving justices, two Bar Association representatives, two ministers and two MKs – elects Israel's justices. Unwritten tradition, however, effectively allows the panel's justices to keep out any candidate not to their liking, for whatever reason.

Whomever they nix has no prayer. Former Tel Aviv University rector Prof. Nili Cohen is said to have been blackballed personally by Justice Dorit Beinish, soon to succeed Aharon Barak as chief justice. Prof. Ruth Gavison, independent-minded and highly esteemed, is yet another remarkable candidate who failed to get the justices' nod. She's not of their chummy crowd and couldn't be counted upon to toe their line.

IN OUR system where "a friend brings a friend," the only way to reach the Supreme Court is to have staunch allies there. Consequently justices are invariably recruited from the ranks of the prosecution or academia. There's a glaring absence of justices who made their mark in private practice.

Nominees may be rejected because of ego considerations, rivalry, nonconformity, or any attributes that could conceivably inject new blood, spirit, variety or originality to the uniform court, which obsessively replicates itself. The justices ascertain that those who join them are cast in their own image, products of the same law faculties, adherents to the same philosophies and subscribers to ideologies with which they concur.

Roberts's elevation to the position of chief justice – before serving one day on the supreme bench – would have been impossible in Israel's cozy bailiwick, where connections alone count and candidates never undergo any public review process like those interminable confirmation hearings to which Roberts was subjected in order to win ratification by representatives of the citizenry.

Veteran justices here might likely have altogether barred his appointment.

The very idea of challenging these haughty justices is met by proponents of the status quo with scorn, including intimations that skepticism as such is undemocratic. Our supreme court regards itself as above reproach, evincing egregious intolerance to any murmur of dissent and theoretically delegitimizing the very notion of reform.

Perhaps the greatest harm is wrought by the pretence that our top-level jurisprudence is perfect, while the public – in the throes of a grueling existential struggle – perceives the court as increasingly out-of-touch and imperious. Its rulings, moreover, are eerily predictable like the unanimous decision on the security fence near Alfei Menashe – hardly the first instance Arab property claims were preferred to Israelis' safety.

THIS REPETITIVE pattern made it a foregone conclusion that all anti-disengagement petitions would flop. Equally there was never much doubt that all petitions to reroute the life-saving fence would be mind-bogglingly successful, signifying that Arab convenience is worth the endangerment and/or sacrifice of Jewish lives.

These history-changing decisions are taken with detachment that defies fundamental fairness. The justices declined to visit the Gush Katif communities whose destruction they rubberstamped and they never set eyes on terrains the fence traverses. They thus could hardly comprehend the impossibility of protecting passengers on roads within the fence perimeter, dominated by hills beyond and above it. This is patently unreasonable, to say nothing of recklessly uncaring.

Israel's Justice lifts its blindfold, peeks out and tips its scales – always in one direction, always dictating to policy-makers and directing the affairs of the state, while usurping the executive's prerogatives and overriding the legislature.

Our overreaching ultra-interventionist court is precisely the sort Roberts objects to. It's the sort Robert Bork, perhaps the most prominent critic of judicial activism, decries in his book, Coercing Values: The Worldwide Rule of Judges.

"The pride of place in the international judicial deformation of democratic government," he argues, "goes not to the US, nor to Canada, but to the state of Israel. The Israeli Supreme Court is making itself the dominant institution in the nation, an authority no other court has achieved."

In his view "Israel has set a standard for judicial imperialism that can probably never be surpassed and one devoutly hopes will never be equaled elsewhere."

In Roberts's baseball idiom, our court is an extraordinarily hyperactive player impersonating the umpire in order to ensure one team's victory. This pseudo-umpire fiddles with the rules while feigning impartiality. He doesn't dispassionately observe – he gets right in there, knocks down some players, then pitches, bats, catches and steals bases for others.