Thursday, June 11, 2009

Here come the judge...here come the judge...

For consensual judges


Israelis, like most Americans and Brits, wouldn't recognize a Supreme Court justice or Law Lord if they tripped over him in the supermarket. Even Sonia Sotomayor, recently nominated by President Barack Obama to the US Supreme Court, is not a familiar face to Americans. With a few notable exceptions, the justices of our Supreme Court are equally anonymous.

How many of us can conjure up the images of justices Salim Joubran, Hanan Meltzer or Asher Dan Grunis? Yet these mostly faceless jurists have profound influence over our lives.

Israel's court has both appellate and original jurisdiction, depending on how the justices constitute themselves. To date, the body has been comprised of mostly (though not exclusively) like-minded types: liberal ex-judges who subscribe to a philosophy of judicial activism, and in all likelihood attended the same law school.

The justices have been more than just a homogeneous bunch; they've practically replicated themselves. That's why when the name of distinguished legal scholar Ruth Gavison was floated for a possible Supreme Court vacancy, it was immediately shot down on the grounds that she wouldn't fit in.

Israel's system for selecting judges is even more viscerally partisan than America's. Nominees do not go before a Knesset committee for vetting and confirmation. Instead, they are chosen by the Judges Selection Committee.

Now though, that committee's membership has been re-jigged to accommodate the wishes of the current government and Knesset; its traditionally liberal-leaning make-up has been dramatically diluted with the appointments of MK Uri Ariel (National Union), David Rotem (Israel Beiteinu) and Gilad Erdan (Likud). Also on the committee are: Chief Justice Dorit Beinisch and her two colleagues Ayala Procaccia and Edmond Levy. The chair is veteran legal powerhouse and Justice Minister Yaakov Neeman. Rounding out the membership are Pinhas Marinsky and Rachel Ben-Ari of the Israel Bar Association.

It may seem odd that the largest and most cohesive bloc on a committee to select judges is comprised of already sitting judges; but until now, these jurists have been in a position to veto some candidates and push through others they favored. It may be more difficult to do so now.

THIS DILUTION in the selection committee's ideological bent - Ariel, from the most narrow right-wing party in the Knesset, is a strident supporter of unauthorized settlement outposts - troubles centrist Zionists as well as liberals. He defeated Kadima's Ronnie Bar-On for the prestigious appointment. Liberals are chagrined that a member of the largest Knesset faction (Kadima) wasn't chosen in line with recent practice - though this happened in only three of our 18 Knessets.

In Israel's fractious polity, where the legislature commonly shirks its responsibilities in such areas as civil liberties and providing necessary legal protections for the Palestinian Arabs of Judea and Samaria, their enforcement has fallen to the Supreme Court - which has occasionally gone too far.

The court is now being asked to decide whether building may go ahead on 24 homes in the settlement of Halamish. Another panel will hear petitions against the Tal Law, which provides army and national service deferments for ultra-Orthodox youths. At stake is whether the law should be repealed on the grounds that it is ineffective since so few haredim serve.

Beyond the question of the ideological leanings of the new judges the selection committee will send to the court is their philosophy. Will they be interventionist? Will they narrowly apply Israel's constitution-in-the-making, or interpret it broadly by giving existing statutes creative interpretations that move society in a more progressive direction?

IT IS not unreasonable for the committee to better reflect the gamut of views in our hyper-pluralist society. Otherwise the legitimacy of the court's decisions will continue to be challenged by broad sectors of the population - something that undermines the stability of the political system.

Still, we strongly urge the newly composed selection committee to seek out consensual candidates on the basis not of ideology, but wisdom and judicial temperament. We need jurists who are not tied to a judicial philosophy - activism or restraint - or, myopically, to political dogma, but judges who will protect civil liberties and human rights while anchoring their decisions in reasoning that fair-minded citizens can subscribe to.

No comments:

My Archive