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Wednesday, February 07, 2007

Has the Branja lost control of the Supreme Court?

I have written nasty posts about the Israeli Supreme Court and its selection process enough times that no one is going to nominate me to be the Justice Minister. The problem is that the court is controlled by the Branja, a Yiddish term meaning the "experts" or the "guild." The members of the Branja include Israel's self-appointed intellectual and cultural elites, North Tel Aviv's high society and business stars and (in the words of Yoram Hazony on Page 4 of The Jewish State), "the Yuppy politicos with whom they socialize."

The Court has nineteen automatons who continue to espouse the world view of Aharon Barak and his hand-picked successor, Dorit Beinish. The appointment process has been controlled by the Court itself through its three members of the selection committee, the two bar association members who don't cross the judges for fear of the effect on their clients, and a series of compliant attorneys general. As Professor Ruth Gavison can tell you, those who disagree in the slightest with any part of the Court's world view need not apply. (Gavison disagreed with the abrogation of standing and justiciability). To be appointed to the Supreme Court, one must acquiesce in its creation of a constitution where none exists, its abrogation of the concepts of justiciability and standing that are basic to every other western legal system, and to the protection of some minorities (i.e. Arabs) alongside the persecution of others (religious Jews of both the national religious and ultra-Orthodox persuasion).

Several months ago, Justice Minister Haim Ramon was indicted for kissing a female soldier in the Prime Minister's office. Ramon suspended himself pending the outcome of the trial. In Israel, there are no jury trials. Ramon was convicted of forcing himself upon the soldier, despite the fact that there were pictures of her locked in embrace with him just a few minutes earlier, which were not allowed to be introduced as evidence. Ramon is 56-years old. The soldier (whose face and name have not appeared in the media, but who has been described as being quite attractive) is 21. Ramon was forced to resign. Ironically, the man who has been appointed as Ramon's successor attacked Attorney General Manny Mazuz for indicting Ramon in a weekend article in Yedioth Aharonoth (the Hebrew newspaper that owns the YNet site).

Yesterday, Ramon's replacement was announced, and he has sent the Branja scurrying for cover in shock. The replacement is Tel Aviv University law professor Daniel Friedman, who is described by the Jerusalem Post as "a fierce critic of the judicial system and the system of appointing judges. He is also a fierce personal critic of Supreme Court President Dorit Beinisch." Indeed he is. Friedman has proposed excluding all currently sitting justices from the being members of the judicial appointments committee and having a separate body prepare a list of nominees. To date, no candidate has been appointed to the Supreme Court without the unanimous consent of the three justices on the appointments committee. The reactions to Friedman's appointment have been fast and furious.

The Jerusalem Post reports that Hebrew University Law Professor Claude Klein called Friedman's appointment an attack on the Supreme Court:
"The appointment is a declaration of war on the Supreme Court. It was not the right thing to do," Hebrew University Professor Claude Klein told the Ynet news Web site following the announcement of Friedman's appointment. "I have known the man for more than 30 years," said Klein. "Professionally, he is head and shoulders above the rest, one of the greatest legal experts in the country."

Nevertheless, Klein said the appointment was a mistake. "I think that since we are talking about a person who has sharply attacked the Supreme Court and the entire judicial system, I would not like to believe that this was the real reason he was appointed, over and above his professional skills."
Haaretz, the Branja's newspaper of choice, reports on a vicious attack on Friedman by retired Supreme Court Justice Mishael Cheshin:
"I would like to be happy about the appointment, but I find it hard," Cheshin wrote in a letter to Friedmann.

"Don't stray from the path down which we have walked. You have said that the justice minister's authority is limited, but that's not accurate. A minister can cause damage."

"My power is limited," Cheshin continued, "but I will defend the Supreme Court with all my might. I am rooted in the Supreme Court. I am part of it. My father was a justice in the first Supreme Court, I was its deputy president. This is my home, and whomever raises his hand against my home, I will cut off that hand."

In an interview to Israel Radio, Cheshin criticized Friedmann's attitude toward the Supreme Court.

"His articles are filled with venom, hate and contempt. The justice minister-designate has relentlessly attacked the court, used destructive and corrupting tools and humiliating and contemptuous personal attacks."

Cheshin said that if Friedmann continues in this manner, and retired judge Boaz Okun is chosen as Justice Ministry director-general, the two would act as "acid that eats away at law and justice."
Okun was the Chief Justice of the Jerusalem District Court until recently and was quite well-respected in that position.

Ironically, Cheshin himself was quite critical of former Supreme Court Chief Justice Aharon Barak - and rightfully so. This is from an article by Caroline Glick:

Last month in an interview with Haaretz, retiring Justice Mishael Cheshin had this to say about Chief Justice Aharon Barak's view of human rights: "He is ready for 30, 50 people to be blown up - but we will have human rights."

Of Barak's view of the Court's oversight of the Knesset Cheshin said, "For Barak, if the Knesset passes a law by a majority of a hundred to two, he can come and assert that the law is annulled."

Cheshin attacked his colleagues on the Court collectively when he strongly hinted that his fellow justices' political views were what kept them from overturning Attorney-General Menachem Mazuz's decision last year not to indict then prime minister Ariel Sharon and his son Gilad on corruption charges. Of Mazuz's decision to close the investigation of the so-called Greek Island affair Cheshin said, "I can say only that when someone gets $600,000 and the promise of $2 million more for surfing the Internet, [Gilad Sharon's payments from businessman David Appel] one has to be a fool to think that he really received the money for that work."

Of his colleagues' decision not to overturn Mazuz's decision he noted, "If Sharon had stood trial, there would have been no disengagement [from Gaza and northern Samaria].

YNet has reactions to Friedman's appointment from a number of members of the Knesset that overwhelmingly approved (50-24) the appointment today:
MK Yossi Beilin (Meretz) objected to the appointment: "Friedmann is not joining the government because he is a great jurist. He was appointed because in the last few years he expressed opinions about the courts similar to the prime minister's.

"The prime minister, who is currently under police investigation, appointed a justice minister who challenges the entire judicial system. He has harshly criticized judges and the attorney general, has called for a constitutional court and passes judgment on judicial review. This isn't a minister who has some criticism about the system, this is someone who has no faith in it," Beilin insisted. [Of course, Beilin had no problem with the judicial system protecting Ariel Sharon from indictment long enough to carry out the surrender of Gaza to the 'Palestinians' and the forced expulsion of its Jews. CiJ]

MK Michael Eitan (Likud) appealed to the new minister to establish a state committee of inquiry to eliminate corruption, but he too expressed an objection to Friedmann's appointment.

"Professor Friedmann was appointed for his agenda that includes reform in the appointment of judges and restraining judicial activism," he said. Nonetheless, he wished him "luck in executing these reforms, while maintaining his dignity, the completeness and efficiency of the judicial system and law enforcement in Israel."

MK Avraham Michaeli (Shas) said he voted for Friedmann because "I think that the justice minister is entitled to his own opinions and he does not have to agree with the supreme court judges, with all due respect. Does the Defense Minister have to agree with the Chief of Staff? The Justice Minister is a professional minister in all aspects and he can express his views even if not everybody likes them." [Ironically, two Shas ministers voted against Friedman in the cabinet because he once accepted the symbolic 120th position on the Knesset list of the anti-religious Shinui party. CiJ]
The Branja are upset because they see Friedman introducing legislation to limit the Supreme Court's ability to strike down laws. I don't think it needs to get to that. If the selection process was sane, we would start to see a more sensible brand of judicial restraint instead of the overblown judicial activism we have today. We would also start seeing more dissenting opinions - yes, they are a rarity in the current Supreme Court. The change would be refreshing and might even unify the country and let the right feel like the Supreme Court is a neutral arbitrator.


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