COMMENTARY: (Not) Working As Expected
By Yitzhak Klein
In last month’s issue we reported extensively on the new law governing
the appointment of justices to
That changed last month. According to a new law sponsored by MK Gideon Saar (Likud) and endorsed by Justice Minister Friedmann, appointment of a Supreme Court justice now requires a supermajority of seven. For the first time since 1953, the government has the ability to block Supreme Court appointments, forcing the judges to bargain and trade for appointments.
In our commentary last month we applauded the law as a step in the right direction, to wit, the appointment of judges by elected officials. We also predicted that the new law wouldn’t work. Real power is at stake in the composition of the Supreme Court, and deep philosophical differences divide the current court and two of Israel’s three leading parties — Likud, Kadima. Only Labor generally supports the court. We thought it likely that committee meetings would end in sparks and disagreement, as government and justices competed for the right to decide what kind of philosophy — and whose institutional interests — would dominate the bench. Since going back to the old system of appointment is unthinkable, we believe that in the end the government and Knesset will have to take judicial appointment into their own hands (after passing appropriate legislation), simply to make the system work.
It hasn’t taken long to provide strong support for our argument (see related news item in this issue, “Supreme Court Justices Walk Out of Judicial Appointments Committee”).. Justice Minister Daniel Friedman called a meeting of the Judicial Selection Committee for Monday, September 22. On the agenda: Appointing three Supreme Court justices. It’s generally agreed that the Court is groaning under its heavy caseload and that three new justices are desperately needed. It was also clear that Friedmann would insist that at least one of the new justices be picked by himself.
The justices on the Supreme Court refused. Pulling what can only be called a fast one, they announced that the Committee lacked authority to act because the government was in transition; Prime Minister Olmert had resigned less than 24 ours earlier. It’s not as if his resignation changed anybody’s mind about the merits of the various candidates under consideration. What changed was the judges’ assessment whether the next meeting of the Committee will be chaired by Justice Minister Friedmann or by someone else. Friedmann wants to change the ideological composition of the Court and cut back on its prerogatives. He and Chief Justice Dorrit Beinisch have been at loggerheads ever since Friedmann was appointed. Apparently, the prospect of a new man in the Justice Minister’s seat was worth almost any sacrifice to the justices.
Beinisch’s surprise did nothing for her reputation. She is viewed as a wheeler-dealer in the realm of appointments, using her powers to promote her friends and block qualified candidates who have aroused her personal ire. Her decision underlines the fact that she is a poor steward of the interests of the Israeli judicial system. Her action prostituted the law to her personal and political interests; as Justice Minister Friedmann pointed out, Beinisch herself was appointed by an interim government in 1995. It is precisely such manipulation of the law for the sake of narrow sectoral or institutional interests that undermines the prestige of the Supreme Court and causes wide segments of the public to view the current extent of its powers as illegitimate. The smart thing for Beinisch to have done would be to genuinely try to make the new system work. By plumping for a momentary advantage in a manner that seems patently unfair, Beinisch is only hastening the day when judicial appointments are taken entirely out of her — and the court’s — hands.