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Jewish World Review Feb. 19, 1999 / 3 Adar, 5759
Jonathan Rosenblum
Yet the threats of prosecution for incitement by Attorney General Elyakim
Rubenstein and State Attorney Edna Arbel (both of whom have their eyes on
seats on the Court) reveal more about the immaturity of Israeli democracy
than do the intemperate utterances of one or two rabbis.
Evelyn Gordon describes the equally outraged reaction to previous
religious criticism of the Court in a recent addition of Azure, published by the Jerusalem-based Shalem Center: "The volume
and the rancor of the public's response exceeded the bounds not only of
normative public discourse, but even of Israel's own vitriolic traditions.
In the name of democracy, moral and legal censure was advocated to crush
debate on an issue essential to the maintenance of a democratic society,
[i.e. the allocation of power between the various branches of government].''
Obsession with the haredim obscures how unexceptional are heated criticisms
of courts in any thriving democracy. Equally sharp, albeit more
sophisticated, critiques of Aharon Barak's judicial activism can be heard
every day in our law schools, and my law school professors spoke and wrote
no less contemptuously of the U.S. Supreme Court.
Compare the reaction in America when Robert Bork, former Yale law
professor and chief judge of the D.C. Circuit Court, called the Supreme
Court "outlaws'' and "robed masters'' against whose ukases the people have
no recourse and another law professor advocated massive civil disobedience
in First Things. Two resignations from the magazine's editorial
board and a large number of angry letters to the editor, that's all.
When Beersheba Magistrate Oded Algayon likened Chareidim to "huge lice'' in
the presence of Aharon Barak, and the latter subsequently praised his
speech, Barak did more to undermine the legitimacy of the Court and reveal
its lack of neutrality than could any religious criticism. And when
President Weizman acts as the Center Party's campaign manager, he
demonstrates his utter contempt for the office he holds. But the press
largely ignores these far more damaging threats to society's "fundamental
institutions.'' Civics lessons are only for the religious.
IF Aharon Barak is now subjected to the type of vitriol regularly directed
at our prime minister -- "proto-fascist,'' "petty crook'' -- he has
himself to blame. Under his leadership, the Supreme Court has increasingly
become a super-legislature, claiming authority to pass judgment on every
decision of the other branches of government. No other court in the world,
according to Hebrew University's Ruth Gavison, has taken such responsibility
for solving all society's problems. Having usurped the policy-making
functions traditionally reserved for the legislative and executive branches,
Barak cannot claim foul if he is now criticized like any other politician.
Indeed Barak has long been recognized as the country's most skillful
politician. He tirelessly curries favor with the media, lobbies Knesset
members for his Court reorganization plan, designed to give the Court even
more influence on the "big'' societal issues, and has managed to place
Justice Minister Tzachi Hanegbi under his thumb by offering a patina of
respectability.
No other Supreme Court President in the world wields such power. Justice
Barak handpicks the judges for every case. And he and his subordinates
control, to a very large extent, the selection of their own successors. One
would be hard-pressed to name another democracy where the legislature and
executive have no role in the selection of judges.
The result is a Court largely devoid of intellectual debate and guaranteed
to remain so long into the future. It is also unrepresentative in the
extreme. There is but one token religious justice out of fifteen (as opposed
to 20% of the Knesset) and not one Sephardi justice. In a "off-the-record''
meeting with the press in late 1997, Barak opined that in the early days of
the State standards had been diluted to include a Sephardi justice. (Ori Orr
must envy Barak's sway over the press, which largely ignored the remark.)
Even within the legal community, the justices represent an extremely narrow
segment, many of them coming straight from the groves of academia or the
states attorney's office, with no prior experience in private practice or on
the bench.
The danger resulting from the lack of any institutional checks on the Court
is exacerbated as the Court moves increasingly in the direction of becoming
an oligarchy of Platonic guardians. Again and again, the Court finds itself
ruling on issues in which there are no traditional legal materials --
statutes, precedents -- to guide it, and which it is ill-equipped to resolve.
Barak has frequently reiterated his philosophy that there is no area of
life devoid of law, and thus virtually no issue which courts should not
decide. But when everything is law, nothing is law. Or as former Justice
Menachem Elon put it, "We have the rule of the judge, not the rule of the
law.''
Barak himself cheerily admits that many of the most contentious issues will
be resolved by judges on the basis of their own values and criteria of
reasonability. What should those values be? Here Barak is unabashedly
elitist: "the views of the enlightened population,'' those "whose values
are universal [and] progressive.'' Basically, the self-description of the
average Ha'Aretz reader.
What Barak has yet to explain is why we, as a democratic society, should
prefer the value judgments of an extremely unrepresentative and
unaccountable Court on the major social issues of the day to those of the
elected
legislature.
Why Israel's fervently-Orthodox are mad-as-....
More than a quarter-million
fervently-Orthodox Jews lined
Jerusalem streets to protest
what they observe is
an anti-religious bias
in Israel's Supreme Court
ONE OF THE HALLMARKS OF WISDOM, say our Sages, is to foresee the
consequences of one's actions. By that standard, Sunday's mass prayer
demonstration by a broad cross-section of the religious public will not
garner high marks. Rather than focusing attention on the unparalleled power
of the Israeli Supreme Court, it has once again made the issue religious
"incitement.''
JWR contributor Jonathan Rosenblum is a columnist for the Jerusalem Post.
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