December 2, 2011
Opinion: Israel's Supreme Court is danger to democracy
Listen to the defenders of Israel’s system for selecting judges for the supreme court and you might think democracy is coming to an end. They are strongly opposed to a legislative initiative that would change the process to one reflective of the US. Arguing that the status quo be retained. A process that is elitist, self-selective, and gives no room for public debate. It produces a court with a narrow ideological perspective that marginalizes vast segments of Israel society. In the US, Abe Foxman, head of the ADL, has warned against tampering with the present system. One has to wonder what would he say if the US adopted the Israeli model. Imagine a committee of nine, three members of the existing court, including the Chief Justice, representatives of the American Bar Association, and a few congressional leaders. The would meet in private, seven votes would be required to choose a judge, insuring sitting judges a virtual veto of new candidates. Locked in a closed room, they would select the next Supreme Court Justice. There would be no public oversight and no debate. A self-selecting process that insures that whoever is chosen has a judicial philosophy reflective of those already sitting on the bench. This is how things are in Israel today.
There is no question that the ADL would lead the battle against such a proposal if brought to US. They would be on the forefront to insure that justices are endorsed by the Senate, after review by the Judiciary Committee. The Israeli secular left, and its allies in the US, are not really concerned with democracy. The government is in the hands of the Likud. The religious population is growing along, with their power at the polls. The only way for the left to retain its control is by judicial fiat. By keeping the existing back room closed system, they will continue to wield power.
The Israeli Supreme Court is the most elite private club in the country. It’s dominated by secular Ashkenazim, an old boy’s network that excludes Sephardim and religious judges. There may be a token religious justice or Sephardi. It’s not much different than the lone black policeman you would find in southern towns in the US during the nineteen thirties. The white sheriff would always claim, “of course we do not discriminate we have a black policeman”.
Democracy in Israel is undermined by the present system. The court should be a forum for varied judicial viewpoints. Just as in the US, liberal, conservative and centrist should battle it out behind closed doors of the Supreme Court. Society is better served by this debate, allowing the justices to find consensus and compromise on crucial societal issues. Former justices on the Israeli court who are religious have confided to me about their frustrations. Their viewpoints were marginalized, the liberal secular judges lacked appreciation for classical Jewish values and legal precedent.
Israel’s Court President Dorit Benish claimed last week that those demanding balance are “guilty of incitement and damage the court”. She stated; “They undermine its ability to protect the country’s democratic values.” She did not answer the real questions. How does it benefit Israeli democracy to have a small elite group decide who sits on the bench ? What is it incitement to have a public debate about this crucial issue ? Why not adopt a procedure like the US that allows for vigorous public debate about court candidates ? Why should sitting justices have veto power over new nominees? Why does the court only reflect one judicial philosophy? Why should such a small group of nine wield such power over Israeli society? Why does the court have almost no Sephardim or religious justices? Her shrill attack against this present legislative initiative could imply that her true concern is maintaining her power over who sits on the court.
Israeli democracy is threatened when an exclusive group imposes its judicial philosophy on the country. In Democracy it is crucial that we debate, discuss and find a compromise. In Israel where the society is deeply divided, it’s even more essential that the court should be a place where judicial compromise can be reached. Sadly, today that is not the case, the philosophy of judicial elitism has caused the court to lose the respect of many Israelis. If the Israeli Supreme Court is to have a moral voice, if it is to be a place where citizens can turn when government overreaches, when human rights are endangered, when an injustice has been committed; it must reform. Failure to do so will only put Israeli democracy at risk.
Rabbi David Eliezrie is the President of the Rabbinical Council of Orange County. His email is rabbi@OCJewish.com