Ungar - Sohlberg's 'mark of Cain'

Amiel Ungar
Haaretz
04 November '11



http://www.haaretz.com/print-edition/opinion/sohlberg-s-mark-of-cain-1.393617

The right was allowed to reign, but the left in actuality governed via aggressive judicial intervention and equally aggressive judicial nonintervention.

It was the classic two-step: First you create controversy around a candidate, and then you torpedo his candidacy on the grounds that he is "controversial." That's what Haaretz seems to have been doing in its campaign to block the nomination of Jerusalem District Court Justice Noam Sohlberg to the Supreme Court. In three successive issues we got, first, an article by the paper's legal-affairs reporter Tomer Zarchin surveying Sohlberg's "controversial" decisions, then an editorial, and finally, an anti-Sohlberg philippic from Gideon Levy.

For Levy (writing on October 30 ), the very fact that Judge Sohlberg resides in impeccably bourgeois Alon Shvut and Etzion Regional Council chairman Shaul Goldstein lives in upscale Neveh Daniel (both communities slated for retention by Israel under every peace plan ) is enough to disqualify them, respectively, from the Supreme Court or the chairmanship of the Israel Nature and Parks Authority. Sohlberg and Goldstein are settlers and, according to Levy: "Every settler has this mark of Cain on their brow. Now ask yourselves: Do you really want to live in a country where the heads of this enterprise allocate its lands, plan its nature sites, rule on its laws and are increasingly controlling its lifestyles?"

Compared to Levy, the Haaretz editorial of October 28 is a model of restraint: "Sohlberg's appointment to the Supreme Court, even if it is 'balanced' by the simultaneous appointment of a less conservative judge, ought to worry anyone who fears for the preservation of human and civil rights in Israel. And that is especially true when we are talking about an appointee who is likely to become Supreme Court president someday."



It is revealing that we do not hear anguished cries about settlers serving in key posts when government ministries or Knesset committee chairmanships are involved. After all, we have a foreign minister - Avigdor Lieberman - and a Diaspora affairs minister - Yuli Edelstein - with the mark of Cain. The Cain field is even thicker in the Knesset. Among others, David Rotem chairs the Constitution, Law and Justice Committee, a post previously held by the late Hanan Porat, while Aryeh Eldad heads the Knesset Ethics Committee.

The current anguish betrays an apprehension that the Israeli left is on the verge of losing real power for the first time. True, the electoral hegemony of the left was broken in the 1977 election that brought the Likud to power for the first time. Faced with the undesirable result and unfavorable electoral demographics in the future, the left retreated to its bastions in the Supreme Court and the senior civil service. Former Supreme Court President Aharon Barak pushed an agenda of judicial activism (dubbed, in Orwellian fashion, a "constitutional revolution" ), designed to serve the "enlightened public" and wielding judicial review to keep the elected representatives of the "unenlightened public" in check. Otto von Bismarck would have approved of the strategy: The right was allowed to reign, but the left in actuality governed via aggressive judicial intervention and equally aggressive judicial nonintervention.

The rule-of-law guardians hyperactively scrutinized government policy when it suited them, including the appointment of the chief of staff or Netanyahu's closure of the Orient House during the 1999 campaign. They went on holiday when it came to issues they preferred to ignore: unauthorized construction in Arab communities, illegal immigration, violations of the Work Hours and Rest Laws, etc., or Barak's Taba negotiations in 2000. This selective and slanted approach to the rule of law persisted, due to Israel's sui generis judicial selection process, which allows serving Supreme Court justices a dominant role in choosing new members of the club.

Nobody questions Sohlberg's stature or resume. He has ably served attorney generals of different political orientations. As a judge in magistrate's and district courts, he displayed legal incisiveness as well as an all-important ability to keep up with a heavy work load. He has lectured in academia. All these distinctions were achieved at a relatively young age, and it is this, according to the Haaretz editorial, that makes him a greater threat.

Given the inane seniority system used to select the Supreme Court president, Sohlberg, if approved, will be advantageously positioned to rack up the necessity seniority to be entitled to that position in due time. It is not his abilities but his views that alarm his opponents, even though they previously rejected calls for hearings to determine candidates' views.

Haaretz assails him for acquitting a policeman who mistakenly killed an Arab during the second intifada because the policeman erroneously believed that the Arab wanted to run him over with his vehicle (not an abnormal occurrence during that period ). The acquittal was upheld on appeal. Sohlberg also aroused disapproval by finding star reporter Ilana Dayan guilty of libel against "Captain R." in her documentary surrounding the death of a Palestinian girl. In doing so, Sohlberg seriously "affronted" the system.

An unholy symbiosis developed between the Supreme Court and most of the media to perpetuate the judiciary's ascendancy. That court magnified the power of the press by lowering the bar for petitioning the High Court of Justice. Yesterday's headline thus became today's court petition. In return, the Supreme Court was portrayed as an infallible bastion of rectitude that could judicially chastise the corrupt legislative and executive branches and nullify their actions.

Sohlberg has his defenders in the media, including former Haaretz managing editor Matti Golan, who called the Dayan verdict exemplary and one of the most precise rendered in libel law.

The left likes nothing better than to lecture the right about democracy. Yet democracy is not confined to changing elected officials, but also allowing them to carry out their policies. If Noam Sohlberg is blackballed, the left's pretensions will be exposed and it will face a Cain mutiny.

Political scientist Dr. Amiel Ungar writes regularly for Haaretz English Edition.


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