Monday, August 24, 2009

The committee for judicial appointments agreed today on three new appointments to the Supreme Court. As expected, the stalemated committee chose one left-wing candidate (Uzi Fogelman), one dati candidate (Neal Hendel) and one compromise candidate (Yitzhak Amit).

Fogelman was Beinisch's candidate from the start. They worked together for decades, he shares her far left view of the world and she had already gotten him a temporary appointment to the Court.

Hendel is a frum guy from New York, who went to NYU and Hofstra Law and attended the Rav's shiur at YU. He has written a number of articles on halacha that suggest that he is a talmid chacham. A number of his rulings in Beer Sheva indicate the kind of straight thinking sorely lacking in Israel's judiciary. He ruled that a government body is not bound by the determinations of it yoetz mishpati (which would be perfectly obvious had not the Supreme Court ruled precisely the opposite with regard to the Government). He also ruled that the question of whether DNA testing could be coerced to resolve a paternity suit is a matter for the legislature to decide, not the courts. Merely as a curiosity, it is worth noting that in a dissenting view, he voted to acquit the defendant in the killing of Hanit Kikos. (Those who follow the frum chat groups will be interested to know that he is the brother of the prolific Russell Jay Hendel.)

Yitzhak Amit attended Zeitlin (a very well-known dati high school in Tel-Aviv). As far as I know he is not identified as dati today. However, he has written a number of articles suggesting that he can open a sefer. One ruling of his (as a District Judge in Haifa) that is of interest is his brazen disregard for a prior Supreme Court ruling on the division of authority between the Magistrate Courts and the District Courts with regard to demolition of illegal construction. The details are less important than the gumption they reveal. Does this mean that we can expect judicial activism from him or that he is not intimidated by his new colleagues? We'll find out.

Perhaps the main significance of these appointments is not the particular individuals chosen so much as that the Justices' domination of the committee has been shattered. Beinisch only wanted appointees whom she had already tested for "compatibility" in temporary appointments and only one of the three (Fogelman) fits that bill. Also, Yacov Ne'eman, who has proved himself to be a suck-up, was forced to drop the candidacy of his buddy Sefi Elon once the right-wing press revealed Elon's true colors.

Bottom line: we are far from where we need to get but the tide is clearly turning.


Blogger Ben Bayit said...

I agree with your analysis. Also the compromise showed that the rule that requires 7 votes can be used for good. I'm assuming you ignored this because you were against this change, but it is clear that the new rule is what forced Beinisch to back down. In the old days they would have steamrolled Fogelman and Elon right through with 5-6 votes.

I wouldn't make too much of Amit's ruling. the changes to the old decision regarding division of authority between district and magistrates court regarding use of property petitions that involved demolition was one that was in the works for a long time. In any event the Supreme Court itself stopped making much of distinction between magistrate and district courts when it comes to jurisdictional issues.

12:11 PM  
Blogger Ben said...

Just to clarify with regard to the Saar amendment: I was opposed to it only to the extent that it was intended by Saar to prevent further necessary reform. On its own merits, I thought it had marginal value. Aumann was opposed to it because it gave the three Justices veto power (so that by the Shapley-Shubik measure they're power increased). My feeling was that the dependencies among the members rendered that point moot. In the current constellation, you are right that Saar helped only because Ne'eman is so unreliable. Had he been, say, Friedmann, the anti-activists (I include Pini Marinsky) would have had a majority and the picture would have been different.

12:57 PM  
Blogger Ben Bayit said...

BTW, it seems pretty clear to me that Justice Levy broke with the group of 3 justices by accepting Hendel's appointment. A not insignificant development. However, unlike the case of Turkel and Barak on an ealier committee, Levy is already considered by the enlightened ones to be on the "dark side" (see Gush Kaif ruling) so it probably isn't as dramatic.

I will also add that those who say that going to a tier 3 law school is the road to a dead end career, just have to eat their words.

1:03 PM  
Blogger Ben said...

Levy is by far the most activist judge. Ultimately, the activism issue is more important than the politics. In fact, even his hitnatkut decision should be seen in that light.

1:10 PM  
Blogger Ben Bayit said...

i'm not so certain that the activism issue should be viewed in isolation. a strict constructionist can still come up with plenty of rulings that will be "bad for the Jews." No one on the right is going to say that they disagree with many of Judge Turkel's minority opinions, yet he was an activist judge. Even though he disagreed with Barak on issues such as justiciability, he still was an activist (e.g. his Naamat ruling on converts is an example of judicial activism).

So basically - and this is IMHO - we should take a holistic approach to how attached the judges are to Aron Barak's over judicial philosophy and to the "rule-of-law" clique rather than whether they are activists or not.

2:49 PM  
Anonymous Shlomo said...

a strict constructionist can still come up with plenty of rulings that will be "bad for the Jews."

That criterion shows you not to be a strict constructionist, doesn't it?

5:45 PM  
Blogger Ben Bayit said...

there is nothing activist about the HCJ's ruling in Funk-Shlezinger ( it's a textualist ruling. yet it has served as the underpinning for the HCJ's rulings to allow same sex-marriage, same-sex adoptions, and a whole slew of other wonderful HCJ rulings in the area of personal status. Yet in the initial ruling itself it is Zilberg's minority opinion that is "activist" and the majority that were textualist.

6:13 PM  
Blogger Ben Bayit said...

I think that the biggest test as to whether or not your assessment about a shift in the winds is the end result of the Yigal Marzel appointment to the DIstrict Court which passed by only 1 vote. At 37 years old, formerly Aron Barak's legal assistant and appointed to the position of Supreme Court Registrar while still only a Magistrate Court judge, and now appointed to the District Court. it will take a bit of time, but if makes it to the HCJ before age 50 it would be a pretty good indication that little has changed.

9:18 PM  

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