Terrified of Judicial Reform

Boxing may be dead but those who still savor the sight of heavyweights throwing roundhouse punches at a fast and furious pace could do worse than the current donnybroook between Justice Minister Daniel Friedmann and former Supreme Court President Aharon Barak.

The verbal fisticuffs between the two – like those between Barak and Richard Posner, one of America’s leading jurists — have performed a valuable public service by bringing to the fore a long postponed debate about the nature of the Israeli legal system. No longer can it be claimed that criticism of the Supreme Court is confined to proto-fascist, right-wing thugs. Friedmann is both an Israel Prize laureate in law and a man of the Left.

Just how long this debate has been suppressed can be discerned from the hysteria that has greeted Friedmann’s proposals for reform of the judicial system. In a pre-Pesach interview with Ha’aretz’s Ari Shavit, Barak predicted Friedmann would turn Israel into a “Third World country.” At least he did not threaten to cut off Friedmann’s hand, as did his former colleague on the Court Mishael Cheshin.

In the Ha’aretz interview, Barak accused Friedmann of seeking to dominate the entire legal system. But that is precisely what Barak himself did as Court President. He enforced uniformity of ideology and judicial philosophy throughout the judicial system, and now he seeks to bequeath to his protégé Dorit Beinisch the same power.

Barak expanded the Court’s power exponentially by abrogating traditional legal doctrines of standing and justiciability to a degree unparalleled in the world. He admits as much in his interview with Shavit. And he unilaterally declared a “constitutional revolution” on the flimsy evidence of two Basic Laws passed in the middle of the night, after scant debate, and with less than a quarter of the members of Knesset voting. Ours is thus the first constitution discovered by a judge rather than emanating from solemn deliberation.

Barak employed his dominance of the judicial selection committee to prevent anyone who did not share his judicial philosophy from ascending to the Supreme Court. He fought the appointment of Ruth Gavison, an internationally renowned legal scholar, solely because she, like Friedmann and Posner, does not share his judicial philosophy.

Judges in the lower courts knew that their advancement depended on the favor of Aharon Barak. So did law professors who aspired to careers on the bench. And finally, so did the attorneys-general and state prosecutors who hoped to follow the traditional path to the Court. They faithfully snuffed out any who dared to challenge the Court’s power. Justice Minister Yaakov Neeman, Reuven Rivlin when his appointment as Justice Minister was being mooted, and Bar Association president Dror Hoter-Yishai were all neutered on the basis of trumped-up indictments, quickly dismissed by the courts, or criminal files subsequently closed.

FRIEDMANN’S PROPOSALS do nothing to strengthen his power. Rather they are designed to reduce the power of the Court President to enforce uniformity. Extending the term of lower court presidents and deputy presidents from four to seven years, while doing away with reappointments, would increase the independence of the court presidents and remove their incentive to keep one eye perpetually cocked on the Court President. Taking away the selection of lower court presidents and deputies from the Court President and giving it to a committee of judges and ex-judges, would lessen the power of the Court President to enforce uniformity of thought over the entire judicial system.

Doing away with the practice of “temporary” appointments of lower court judges to the Supreme Court – a practice designed to allow the Supreme Court justices to ensure that would be colleagues can be counted upon to toe the line – would again open up the judicial system to more internal debate and fresh thought.

The Friedmann proposal that terrifies Barak most is that to end the chokehold of the sitting justices over appointments to the Court itself – a chokehold that Barak weakly justifies as necessary to preserve collegiality. Yet Barak admits that “most constitutional courts in the world are chosen by political bodies.” And no democracy invests sitting justices with the power over the judicial selection process they exercise in Israel.

To justify the Israeli anomaly, Barak offers only the self-interested claim that the process has produced excellent justices. In addition, he argues there is a distinction between Israel and other democracies. They are civilized, whereas our politicians are a group of dangerous troglodytes ever eager to trample individual liberties – for instance, the right to marry citizens of an enemy entity and bring them to live in Israel.

Defenders of our current judicial system, Barak chief among them, claim that it is necessary to protect minority rights. But it turns out that the minority they are most eager to protect is the Court itself, and the “right” at stake is that of the Court to determine societal norms to an extent found nowhere else in the world.

When judges import new values into the system or effectively rewrite statutes according to their own lights, writes Barak, they are merely giving effect to the people’s most cherished norms and standards. But if all he wanted to do was ensure that legislators legislate and executives execute in accord with fundamental societal values, he should be the foremost proponent of a constitutional court based on European models. In fact, he is the staunchest opponent.

The reason is that the values Barak and his acolytes want to enforce are not those of the Israeli people but their own. Last week’s bizarre Supreme Court decision granting citizenship to Messianic Jews whose fathers are Jewish is a glaring example. The Court not only overturned its own precedent in the Brother Daniel case, but the Knesset’s codification of that decision in Section 4A(a) of the Law of Return, that one who chooses another religion is not a Jew for purposes of the Law of Return.

Our Sages tell us kol haposel b’mumo posel – one sees in another his own faults. Barak’s accusation that Friedmann seeks to exercise total authority over the judicial system provides a powerful example of that ancient truth.

Published in the Jerusalem Post May 1, 2008

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16 Responses

  1. Ori says:

    I believe Barak is scared. If current demographic trends continue in a few decades Israel will either be a religious Jewish country(1), or an Arab one. Neither option is attractive to Chiloni Israelis. The ideals that animated Barak’s generation don’t hold enough of their children and grandchildren. Even when they do hold them, those children and grandchildren don’t have enough children to keep the country.

    However, he is also acting in a stupid manner. Any decision taken by a court can be pre-empted by the legislature, ignored by the executive, or reversed by a court at a later date. This isn’t an issue that can be decided from the bench, or probably by the government.

    (1) As opposed to the ideal of my grandparents and a lot of other people from that generation – a secular country for Jews.

  2. Steve Brizel says:

    It is obvious that CJ Barak runs the HCJ ala a Deep South Jim Crow era American court-interested in protecting an Ashkenazic secular post Zionist vision of Israel that has no room for Torah observance.

  3. Ori says:

    Steve Brizel: It is obvious that CJ Barak runs the HCJ ala a Deep South Jim Crow era American court-interested in protecting an Ashkenazic secular post Zionist vision of Israel that has no room for Torah observance.

    Ori: IIRC, Barak’s ideal is US style separation of religion and government, not a rebirth of Stalin’s NKVD. He doesn’t want to suppress Torah observance, but to prevent the government from enforcing it. Is there no room for Torah observance in a country where it is legal to sell pork on Yom Kippur in public? I assume that would be news to all the Torah observant Jews on this forum who live in the US.

    I am not arguing whether Israel should enforce laws based on Halacha. I don’t live there, I don’t fight the wars or pay the taxes, and I don’t have the right to an opinion. My point is that to say there is no room for Torah observance unless the government enforces it is false.

  4. Yisroel Moshe says:

    R’ Jonathan,

    It would seem to me the service the Justice Minister is performing (albeit unintentionally)for Torah observant Jewry is enormous. So enormous, perhaps it is worthwhile to prop up the Olmert Government, even though it enjoys minimal popular support according the polls, at least until such reforms are achieved.

    Just a thought.

  5. LOberstein says:

    Am I the only one who sees the problem of the Rabbinic High Court of Justice retroactively delegitimizing the conversions of every convert who appeared before the Conversion courts that were set up for this purpose. If every convert in the USA who converted before an orthodox bais din but didn’t keep shabbat were retroactively cancelled, we would have to weed out many fine bnai and bnos torah from our communities because their mother’s or grandmother’s conversions are retroactivly cancelled. It used to be that only the Reform and Conservative conversions were not recognized, now even most orthodox conversions are not acceptible. Barak may deserve the criticism but we have to show that our justice has some justice.

  6. LOberstein says:

    I remembered that the head of the Conversion Court is Rabbi Haim Druckman.
    The issue as I see it is that Israel is too polarized.The secular high court represents the elites and the official rabbinic establishment no longer has men of the stature of Rav Herzog who was the equal of the non zionist rabbis. The office of Ashkenazi Chief Rabbi has been devalued to the extent that statements by its occupant mean nothing. He is viewed as someone who was cynically put into office so that a Religious Zionist wouldn’t be elected. He wasn’t even a town rabbi before his election.
    As Israel enters its 60th year celebrations, it is a sign of the times that there are none to take on their shoulders the major issues that require great people, with the ability to make judgements that will be respected. Can one compare Olmert to Israel’s founders?

  7. dr. william gewirtz says:

    LOberstein I totally agree with your first post. Anyone who did not see this coming after a conversion by R. Druckman was overturned last summer without condemnation, if not praise in some circles, does not fully appreciate the gravity of the situation that we face. It is not zionist and charedi rabbis that we lack, it is those in the center who have been marginalized. Sadly, this all makes barak seem a bit more temperate; perhaps he and friedmann will unite around a common issue. And BTW, I assume some who think they have a binding agreement vis-a-vis conversions in this country, are not sleeping quite that soundly.

  8. ES says:

    Don’t we learn that each generation gets the leaders it deserves? So, how do we go about earning some leaders with bigger shoulders?

  9. L Oberstein says:

    This is from today’s Arutz Sheva. Jonathan, you castigate the Supreme Court but now it looks as if this ruling by the Beit Din will cause the Supreme Court to over rule the rabbinic court. This sets up a situation that can not be good for the future authority of the religious court system. It is always easier to criticize the non frum court but here is an example of precipitous action that will be counter productive to the very judges who want to cancel all non chareidi conversions retroactively.

    A leading Conversion Authority figure told Arutz-7 that he does not believe the ruling will be able to withstand a Supreme Court appeal, “as the High Rabbinical Court probably does not have ultimate authority over the Conversion Courts in the Chief Rabbinate.” This is likely to be put to the test, as an appeal to the Supreme Court is likely.

    Rabbi Cherlow’s Attack
    Rabbi Yuval Cherlow, a leading figure in the religious-Zionist camp, wrote a scathing attack against the High Court’s decision. He called it a “desecration of G-d’s Name.”

    The rabbi wrote that if the ruling was not overturned, he would work to create an alternative conversion court system – a surprising call coming from a leader of the camp that has traditionally supported the Chief Rabbinate.

    Rabbi Cherlow wrote that the ruling:
    * stands in total opposition to Jewish Law,
    * embarrasses and shames a great Rabbi [Rabbi Druckman],
    * violates the Torah’s commands not to cause sorrow to converts,
    * and deals a terrible blow to the efforts against intermarriage.

    The rabbi wrote that the ruling also:
    * leads to intervention by the secular Supreme Court in Jewish Law,
    * is an unfair Halakhic intervention in an “ugly struggle against the religious-Zionist rabbinic world,”
    * will lead to continued erosion of the status of rabbinical courts in the State of Israel,
    * as well as to a deepening of the rift in the rabbinic world.

  10. David Farkas says:

    As in America, the problem with the Israeli court system lies not with the Judges, but with the chief executives who refuse to reign the judges in. A Judicial order by itself is meaningless; it only has import when a burly man with a gun growls at you to do what the judge says. And it is the Chief executive that is in charge of those burly men (ie, the police.)

    The founding Fathers of America deliberately wanted the lack of enforcement power to be a check on the judiciary. They knew, and wrote explicitly, that judges have the capacity to run amok on their own power, and wanted the President to be a check on them (and also Congress, who holds the power of the purse.) But something happened along the way and the Cheif Executives have become afraid of refusing to enforce court orders. As a result, Judges have become like children unrestrained by their fathers, and now feel themselves free to do anything, literally anything. Why have the Israelis adopted this most upsetting development from the American scene?

    Isralei pols have never been known for their reticence. It is HIGH time the Prime Minster and the Justice Minister began refusing to order court orders. After all, they owe a duty of loyalty to the people. And while the public can vote out the prime minster if it feels this step too drastic, they have no such luxury with activist Judges.

    Groups like the Federalist Society have begun advocating this view in America, albeit in the muted, overly-respectful tones of contemporary conservatism. Jonathan Rosenblum, you can do much to advocate this cause in Israel by writing about in the forums you’ve been granted. Godspeed.

  11. The Contarian says:

    Aaron Barak’s kosher counterpart lhavdil elef havdolos is Rav Elyashiv, Shlita, who has succeeded in capturing a large part of the Rabbinical Court System and even one half of the Chief Rabbinate. The Gadol Hador has assiduously campaigned to guarantee that the Rabbis who sit on these courts share his halachic and hashkafic world view. The recent Rabbinical Court ruling concerning the legitimacy of Rav Drukman’s geirus procedures bears Rav Elyashiv’s stamp and proves how successful the Rav has been.

  12. Garnel Ironheart says:

    So let’s see if I have this right:

    Today, Israel’s legal system is being run by people who are completely secular and would like to stamp out every official trace of Judaism from national life in the name of separation of shul and state, despite the fact that israel’s very legitimacy rests on it being a “Jewish” state in the traditional Jewish homeland which implies some national expression of Judaism.

    But in 1-2 generations, the demographic shift will give Israel a legal system run by people who are completely religious and would like to stamp out every official trace of secular culture from national life in the name of lack of separation of shul and state, despite the fact that the Torah must be complemented by some secular knowledge and behaviour in order to make a modern state functional.

    Some choice.

  13. Ori says:

    Garnel Ironheart: But in 1-2 generations, the demographic shift will give Israel a legal system run by people who are completely religious and would like to stamp out every official trace of secular culture from national life in the name of lack of separation of shul and state, despite the fact that the Torah must be complemented by some secular knowledge and behaviour in order to make a modern state functional.

    Ori: A state governed by religious Jews would still have all the secular culture that it requires to survive. The secular universities might have smaller budgets, but they’d still have the medical schools (for example). The Yeshiva-student exemption would probably never be so broad the country is actually in danger due to lack of troops.

    However, a state can have all the secular culture it requires to survive and still be uncomfortable for Chilonim. Here are some reasons for Chilonim to fear Israel becoming such a state:

    1. Would it still be legal to purchase non-Kosher food?

    2. Would it still be legal to drive on Shabbat when it’s not essential?

    3. Would restaurants still be open on Shabbat when you go somewhere with your family (assuming driving is still legal)? What about gas stations?

    4. It is currently considered child abuse to raise your kids to be criminals. Would it be child abuse to raise your kids to desecrate the Shabbat and eat Treifa?

    I’m not accusing any religious parties in Israel on planning such sweeping changes. But there is no way for a Chiloni to be sure that such changes won’t happen, and therefore there are reasons to fear they might.

  14. dr. william gewirtz says:

    Garnel, Ori, Years ago as a young PhD, I had the priveledge of working on a research grant for a distinguished professor who happened to be a frum Israeli jew. He taught me alot about “feedback.” You build X to alleviate Y and you create Z, a larger issue than Y ever was. he joking said that we might be able to accurately model tunnel traffic if we were certain there was miniscule (illegal) lane changing. Why the long introduction – I would be more circumspect prognosticating the situation when Israel celebrates its 80th or 90th birthday. Israel’s current course will result in some yet unclear but significant feedback; I pray there is still at least a fair chance that God may be merciful and intervene. I assume that the state cannot afford approximately half of those entering first grade(counting a large subset of chareidim, some sefardim and many within the green-line arabs)receiving minimal or substandard secular education. (the statistics would be yet more ominous were it not for the russian olim.) What will happen I have no idea, I have imagined a variety of plausible scenarios. Thankfully, none are as radical or ominous as your posts might imply. and on that note, off to Yom HaAtzmaoot Tefillah. I will pray that i am correct.

  15. Garnel Ironheart says:

    Dr Gerwitz, your point is well taken.
    The day before Microsoft was found guilt in court of non-competitive practices in 2000, its stock was hugely overpriced and still rated as a “buy”. 24 hours later? Boom!
    On September 10, 2001, George Bush II was well on his way to becoming a minor, isolationist president who would probably be remembered only for the way he won the election. 24 hours later? Boom!
    Heck, on August 31, 1939 Britian and France (at least their leaderships) still didn’t seriously believe there would ever be war with Germany. 24 hours later? Boom!
    So yes, there is no way to know what the future will bring. An earthquake? A new scientific discovery that alleviates the water shortage? A horrible war? An influx of new olim from the West?
    I too hope and pray for the best. May Hashem gather our scattered brethren back to our land so that we can rebuild it for His glory.
    But in the meantime, I will follow the old Jewish maxim: Hope for the best, expect (and complain about) the worst.

  16. Ori says:

    Dr. Gewirtz – you’re right. We don’t know the future, although we are responsible to try and anticipate it and plan accordingly.

    About Charedim and secular job skills, I expect that eventually the pendulum will swing back the other way. Poverty isn’t that attractive, and eventually there will be more workplaces that are mostly Charedi and therefore do not tempt one to stray.

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