Sunday, July 26, 2009

It breaks my heart to follow the Sotomayor hearings in the States at the same time as I follow the parallel attempts to appoint three new Supreme Court judges in Israel.

It's so simple. Sotomayor needs to be ratified by the Senate. Senators are answerable to their constituents. The constituents follow the hearings. Therefore, Sotomayor needs to impress the public with her candor, with her intelligence and with her judicial philosophy. Even if she's a shoo-in with 60 Democrats in the Senate, she's got to pass a very public hurdle. And that gives the process a certain gravitas and a certain respectability. (BTW, I'm no fan of Sotomayor, but that's got nothing to do with this.)

Here's how it works in Israel. A committee of nine decides entirely in secret who the judges will be. Since (following Gideon Saar's amendment of last year), any three members have veto power, the three sitting Justices on the committee have veto power. In parallel, the three right-wingers who happen to be on the committee (Dudu Rotem, Uri Ariel and Gilad Erdan) also have veto power. It remains unclear who has more to lose from the default situation in which nobody gets appointed.

In the meantime, Chief Justice Beinish insists that the committee appoint her protege, Uzi Fogelman. Fogelman has already served as a temporary appointment to the High Court. He is known for very left-wing political views. In 2007, he also dismissed a lawsuit demanding that the Attorney general bring charges against Beinish's husband. (The shocking part wasn't the dismissal, which was probably warranted, but the fact that Fogelman failed to recuse himself.)

At the same time, Yaacov Ne'eman is pushing Sefi Elon as the "middle" candidate. Those familiar with Elon say that he is considerably more left than right. He is highly qualified, however, because he and Ne'eman have a weekly shiur together and Ne'eman promised to help him.

Given the stalemate, that would suggest that the right-wingers are entitled to a candidate. Their initial list consisted of Dov Frimer, a lawyer specializing in family law (and, more importantly, a veteran of Camp Munk), and three District Court judges, Moshe Drori, Yeshayahu Schneller and Noam Solberg. Frimer and Drori, as well as two others whose names have been mentioned in this context, Aviad Hacohen and Berachyahu Lifschitz, all have attended Rav Usher Weiss's Thursday night shiur in Ramot, along with Yaacov Ne'eman. (I mention this not as a curiosity. Personal ties to Ne'eman matter. Indeed, otherwise there is no way that Aviad Hacohen's name could possibly ever appear in the same sentence as the phrase "right-wing".)

In any case, as is well-known, the press conspired to shoot down Drori's candidacy. (I personally have no opinion on the substance of his controversial decision, but I think anybody who writes 320-page decisions on such minor matters is a little bit scary.)

Several observations on all this:

1. If we end up with Fogelman, Elon and one of the above, we have not done well. At least one of the three right-wing committee members has told me that he will not take that deal. Of course, the question is who will break first.

2. The whole process is vulgar. Nobody pretends that we are somehow getting the most qualified judges this way or that the process is dignified. The committee members are simply bombarded with gossip about one candidate or the other and several of them (most blatantly, Beinish and Ne'eman) are driven by personal considerations. When I suggested that requiring Knesset ratification, which would necessarily be accompanied by orderly public hearings, would be more effective and more dignified, one of the committee members actually said to me with a straight face, "What, politicize the system? Never!" (And this was a right-winger.)

3. Ne'eman has proved himself to be a total suck-up. He is not only supporting Fogelman and Elon, he is now preparing to push his catastrophic Basic Law: Legislation. (See my earlier post on how bad that piece of legislation is.)

4. The absurdity of the appointments process is two-fold: the lack of transparency and the fact that sitting Justices have veto power. This second aspect is of a piece with the attitude of the legal system here that they don't serve the public but rule over it. Aharon Barak has just released two auto-hagiographies, one book and one film. In addition, Beinish has gone on a PR offensive. A common theme ties together all their portentous pronunciementos. It is not the love of humanity and law, but rather contempt for humanity. "The public doesn't understand. They need to be educated. " (Beinish) "My critics are all short-sighted. I have neither the time nor the inclination to bother with them." (Barak). It is an article of belief for them that only thing preventing the benighted public and its corrupt representatives from marching into the moral abyss are the restraints imposed upon us by the benevolent and enlightened Champions of Justice.

If the Sotomayor hearings bring to mind the observation of Brandeis that "sunlight is the best disinfectant", the process here brings to mind the observation attributed to von Bismarck that "making laws (read: appointing judges) is liking making sausages; you don't want to see how it's done".

6 Comments:

Anonymous yoeli from kj said...

aren,t you impressed by sotom...
latiness, if not then you are a racist

3:06 AM  
Blogger Ben Bayit said...

If National Religious members of the committee allow the son of former Mapai MK Menachem HaCohen to be appointed to the court as "their" candidate, it will be an even worse fiasco than Shaul Yaalom's failed "deal" with A. Barak to get Berliner a permanent appointment.

At least in the old days when the religious candidate got his seat it was clear that he was affiliated with PIA/Mizrachi/Hapoel M. and the Revisionist appointment was clearly a Revisionist.

today the religious members appoint mapainiks with yarmulkes. a disaster!!

1:05 PM  
Anonymous Anonymous said...

What about Nil Hendel? Is he being mentioned as an appointee anymore?

6:44 PM  
Anonymous Skeptic said...

Before reading this point, I was undecided about the Saar rule. Now I am firmly in favor. It has clearly led to the politicization of the judge selection process, which is clearly a good thing, as Ben implies. People now have to make deals.

9:32 PM  
Anonymous Anonymous said...

who cares
its so stupid

2:23 AM  
Anonymous Brother Bob said...

However, the whole Sotomayor hearings are a complete sham.

Assorted Senators say what they are expected to say. Ask expected questions. She answer what she is expected to answer, very blandly. And once elected to a lifetime appoinment, goes ahead and does what she wants anyway. It's a simulacrum of democracy more than any actual democratic institutions.

3:31 PM  

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