Levin - The U.S. view of Israel's Supreme Court

Kenneth Levin..
Israel Hayom..
27 January '12..

Much of the Israeli Left – including cultural and political leaders, journalists and academics – have in the last several months engaged in hyperbolic, defamatory claims that the right-wing government of Benjamin Netanyahu is trying to destroy Israel’s democracy through proposed legislation, such as that aimed at modifying how Supreme Court justices are selected.

In fact, the anti-government arguments set truth on its head. Israel’s Supreme Court, and its judiciary more broadly, are the most anti-democratic elements of Israel’s governing bodies and perhaps the most anti-democratic court system among Western democracies.

It was not some right-wing extremist who wrote in 2000, "I think that [then] Supreme Court President Aharon Barak has not, and does not, accept the rightful place that the court should have among the various authorities in our regime... [Instead, he is seeking] to interject [into all areas of Israeli life] certain moral values as he deems appropriate. And this amounts to a kind of judicial dictatorship that I find completely inappropriate." The words were those of former Supreme Court President Moshe Landau.

Barak’s appropriating, to himself and his court, extraordinary powers unique within Western democracies is illustrated by, for example, his declaring in 1992 that the new Basic Law established that same year conferred upon the Supreme Court the right to strike down any legislation it considers "unconstitutional." Israel has no formal constitution, meaning that, in effect, Barak was claiming for the Supreme Court the right to nullify any law it deems in violation of its own concept – more particularly, his own concept – of a proper Israeli constitution.



Barak proceeded to legislate from the bench under this appropriated power – and did so with a distinct leftist bias, very much in the post-Zionist mold then becoming the dominant fashion within Israel’s Left.

One illustration of this was his instructing Israeli jurists, in his Interpretation in Law (1994), that when confronted by what seems to them a conflict between "democratic" and particularist Jewish values, the judge "should act as the enlightened community would." Barak then explains: "The metaphor of the 'enlightened community' focuses one's attention on a part of the public. One's attention is turned ... to the educated and progressive part within it. What distinguished the enlightened community from the rest of the public? ... The enlightened community represents that community whose values are universalistic, and which is part of the family of enlightened nations."

Even putting aside the boldly elitist, anti-democratic thrust of the assertion that the views of only a particular segment of the population should shape legal interpretations, Barak in effect is instructing jurists to be guided in their rulings by those Israelis who embrace the post-Zionist agenda and are eager to strip the nation and its institutions of all Jewish particularist meaning and content.

It is because of this leftist bias that any challenging of the Supreme Court’s abuse of democratic norms has outraged the Left and elicited twisted assertions of being an assault on democracy rather than an effort to rein in the judiciary’s overreaching.

Of course, whatever had been the Barak court’s particular political predilections, its arrogation of extraordinary powers to itself would have been equally anti-democratic, reprehensible and dangerous.

Barak’s successor, Dorit Beinisch, who shares his political views and his vision of the special powers of the Supreme Court, has joined those decrying efforts in the Knesset to change the way Supreme Court members are chosen. More broadly, she recently complained of efforts by politicians over several years to "damage the Supreme Court, to reduce its powers, and prevent it from carrying out its functions, and thus to undermine its ability to protect the country’s democratic values." Beinisch asked rhetorically if those who want to alter the selection process for Supreme Court justices to one resembling the process in the U.S., with Knesset members vetting candidates, "are also proposing to adopt the unchallengeable respect for the American Supreme Court’s decisions?"

But Beinisch’s characterization of the American Supreme Court is disingenuous. First, of course, the U.S. has a constitution, so there are definitive guidelines by which the court is to judge cases presented before it. American Supreme Court justices are not to be guided simply by what they believe should be in a constitution were the nation to have one.

In addition, U.S. Supreme Court decisions are not "unchallengeable." Most notably, of course, there is a process for amending the constitution should legislators decide there is a need to counter court decisions via constitutional reform. Moreover, American leaders have long recognized the threat to democracy posed by a Supreme Court claiming unchallengeable finality for its decisions, a status superseding other branches of government and transcending any system of governmental checks and balances. For example, Abraham Lincoln wrote that "[I]f the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made ... the people will have ceased, to be their own rulers ..."

The threat that Lincoln envisioned was the reality that Moshe Landau recognized in the Israeli Supreme Court’s appropriation to itself of extraordinary powers beginning with the presidency of Aharon Barak.

The current selection process for Supreme Court judges and other judicial appointees, the process whose proposed reform has elicited such unbridled claims of threatening Israeli democracy, in fact effectively extends the anti-democratic predilections of the Supreme Court throughout the judiciary. It adds a structural dimension to those predilections, a dimension that reinforces and perpetuates them and assures their permeating the entire judicial system.

Innumerable examples of prosecutorial bias can be cited. One that received much publicity at the time was the aggressive prosecutorial pursuit of Benjamin Netanyahu, after his first term as prime minister, for his allegedly having engaged in illegal activities around contracting work done at his private residence while he was in office and also his allegedly having kept gifts received while in office that properly belonged to the state. In contrast, the pursuit of Ezer Weizman, then president of Israel, for allegedly having been given large payoffs to advance left-wing political goals – with the amounts involved being much greater than those entailed in the allegations against Netanyahu – was much less vigorous.

The blatant political use of prosecutorial actions prompted Alan Dershowitz, law professor at Harvard and hardly a right-wing zealot, to address the matter in a letter to Ha'aretz in August 2000. Dershowitz noted "Israel’s long history of prosecuting, often unsuccessfully, some prominent public officials, while foregoing prosecution of others." He went on: "Even those who want to see Benjamin Netanyahu prosecuted appear to acknowledge that if the same test that was applied to Ezer Weizman were to be applied to Netanyahu, there would be no prosecution"; and he warned: "It would be discriminatory in the extreme to apply a less demanding evidentiary and prosecutorial standard for Netanyahu than has been applied to other political figures in the past ... Any less demanding standards would reasonably raise the specter of political partisanship and discrimination."

Again, there have been innumerable instances of such partisanship and discrimination, with prosecutors pursuing in prejudicial ways those on the political Right.

Thus, for example, in advance of the dismantling of the Jewish communities/settlements in Gaza, as well as four in the West Bank, in the summer of 2005, an entirely new and extraordinary body of prosecutorial procedures was created to deal with anti-evacuation demonstrators and resistors.

Among the novel guidelines was an order that cases brought against those accused of threatening a civil servant in the course of the expulsions "cannot be closed by the investigating unit because of lack of evidence or lack of public interest, but only with permission from the state prosecutor."

In an April 2007, hearing for a senior reserve officer who had tried to resist his expulsion from Kfar Yam in Gaza, Judge Drora Beit-Or, deputy president of the Beersheba Magistrates Court, acknowledged, "We dealt differently with the cases from the Disengagement ... We [in Beersheba] dealt with many cases including minors and threats. Most of the defendants were first-time offenders and all [cases] received special treatment." This included the months-long imprisonment of young teenagers who had committed no crime and had no previous criminal record.

The perennial bias of the Israeli judiciary, and particularly the Supreme Court, has had an impact on public opinion. In a poll conducted by the Maagar Mohot Survey Institute and published Nov. 11, 2011, only 14 percent of respondents believed the Supreme Court represented all elements of the nation, while 51% believed it did not. By 54% to 46%, those polled viewed the court as politically slanted. Of the 54% who declared the court politically biased, by 75% to 11% they saw it as slanted in favor of the Left.

The vigorous opposition of the Israeli Left to reforms of the judicial selection process that would bring it more in line with democratic norms is reminiscent of a television interview conducted in June 1977, with Itzhak Ben Aharon, a former Labor member of the Knesset and head of the Histradrut Labor Federation. The occasion was the election of the first non-leftist government in Israel’s history. Ben Aharon declared: "The [election] results are a mistake." The interviewer responded: "But Mr. Ben Aharon, this is a democracy and the people have spoken." To which Ben Aharon retorted, "The people are wrong."

Many on the Left in Israel clearly believe they are entitled to have the Supreme Court and the broader judiciary biased in favor of their political views, and if democratic norms dictate otherwise then democratic norms are wrong.

No element of Israeli national governance is more in need of constitutional controls than the judicial system. Short of the introduction of a constitution, with a system of checks and balances, legislating Knesset vetting of candidates for the judiciary is the least the public should demand if the nation’s judiciary is to move toward conforming to standards of judicial power and judicial constraint that are characteristic of functioning democracies.

Link: http://www.israelhayom.com/site/newsletter_opinion.php?id=1276

Kenneth Levin is a psychiatrist and historian and author of "The Oslo Syndrome: Delusions of a People under Siege" (Smith and Kraus Global, 2005; paperback 2006).

Updates throughout the day at http://calevbenyefuneh.blogspot.com. If you enjoy "Love of the Land", please be a subscriber. Just put your email address in the "Subscribe" box on the upper right-hand corner of the page.
.