Analysis from Israel
Justices’ views are clearly no secret if jurists can predict how each will rule.
If anyone remains unconvinced that something is badly wrong with Israel’s judicial system, the reactions to this month’s High Court of Justice ruling on the amended Citizenship Law should provide ample proof.

In a 6-5 decision, the court upheld a controversial amendment that imposes strict limits on the right of Palestinians married to Israelis to immigrate to Israel. While the right to marry is a basic right, the majority said, it doesn’t include the right to live with one’s spouse in Israel specifically; the state is entitled to restrict marriage-based immigration to protect important interests like security (the amendment was enacted after several Palestinians who obtained citizenship through marriage exploited their residency rights to commit terror attacks).

Leftist jurists, who usually denounce all criticism of the court as “anti-democratic,” responded with a blistering attack on Supreme Court President Dorit Beinisch, blaming her for what they deemed an unconscionable ruling even though she herself dissented from it. Why? Because she personally selected the panel members who created the 6-5 majority – and did so knowing full well that her choices would produce that particular outcome.

This is a truly shocking charge: that the Supreme Court president can singlehandedly determine the outcome of any case merely by selecting the panel that hears it. Unfortunately, it happens to be completely true. Supreme Court cases aren’t heard by the entire court, nor are justices assigned randomly or in strict rotation. Every panel is chosen by the court president, who thereby has the power to shape the outcome.

In this case, for instance, the critics claim that initially, a 6-5 majority favored overturning the law. But because Beinisch didn’t push to get the verdict written before Justice Ayala Procaccia reached the mandatory retirement age, Procaccia had to be replaced. And then, instead of replacing her with someone who could also be expected to oppose the law, like Uzi Vogelman or Isaac Amit, the critics charged, Beinisch replaced her with Neal Hendel, whom she knew would uphold it. In short, they accused Beinisch of repeated decisions calculated to produce a ruling upholding the law, because she feared the Knesset’s reaction if it was overturned.

That the Supreme Court president can determine a case’s outcome by choosing the panel is clearly unacceptable, but it’s a problem that’s easily solved: Just assign justices in strict rotation, or by computerized random selection.

Far more interesting, therefore, is how this story explodes the myth of an “apolitical” Supreme Court. For if even the leftist jurists who are the myth’s chief promulgators now admit the justices’ worldviews are so well-known that Beinisch could have predicted how each of them would rule, it’s pretty hard to argue that the court is “apolitical.”

Contrary to popular perception, there’s nothing wrong with justices having political opinions. Indeed, anyone who could live for decades without developing such opinions would have to be so ignorant, unintelligent or detached from reality as to be totally unfit to serve on the nation’s highest court.

Nor is there anything wrong with the fact that justices’ political opinions influence their rulings. Complex legal questions frequently lack a clear-cut answer; in the current case, for instance, where one strikes the balance between a couple’s right to live together in Israel and the state’s right to protect vital public interests like security is inevitably a value judgment, one on which reasonable people of goodwill can disagree. And the more the court intervenes in controversial political, social and moral issues, the truer this is, since these are precisely the types of issues that lack any single “right” answer. Thus to say that justices’ worldviews shouldn’t influence their rulings is to demand the impossible.

What is problematic, however, is attempting to maintain the fiction that justices don’t have opinions, or that they can somehow avoid letting these opinions influence their rulings.
This attempt is increasingly discrediting the entire legal system, because people aren’t stupid. It’s not hard for ordinary Israelis to figure out that when six justices say security justifies restricting Palestinian immigration while five say the “right to marry” trumps security concerns, the disagreement stems mainly from the justices’ different political and moral judgments. It’s also not hard for them to conclude, by extension, that the justices’ worldviews affect other controversial decisions as well. Thus when self-proclaimed defenders of “the rule of law” – including the justices themselves and senior legal officials like the attorney general – keep insisting that the court is and should be “apolitical,” they merely paint themselves as liars and hypocrites. And how can anyone respect a legal system staffed by liars and hypocrites?

Even more importantly, however, the more Israelis realize that the justices’ opinions indeed affect their rulings, the more those Israelis whose views are unrepresented or underrepresented on the court will feel resentful and discriminated against. And that undermines their trust not only in the legal system, but in democracy as a whole. For if a Supreme Court on which their views are permanently underrepresented can, and often does, overturn the elected government’s decisions, then it doesn’t matter how many electoral victories they win; they have no chance of ever getting their policies enacted.

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Unfortunately, that is indeed the case under the current judicial appointments system. As I explained

in detail, this system is virtually unique among democracies in that

justices effectively choose their own successors. And, being human, they

inevitably prefer those who share their own views, producing a court

that is unusually ideologically homogeneous.

This problem can

only be solved by changing the appointments process to bring it into

line with the rest of the democratic world – which means transferring

control of the process from unelected legal officials to the people’s

elected representatives. That would ensure a spectrum of opinion on the

court, because governments change regularly, and each new government

would inevitably seek to fill vacancies on the court with justices

sympathetic to its own worldview.

Unfortunately, Prime Minister Binyamin Netanyahu quashed a

bill to do exactly that just six months ago. For the court’s own sake,

he should remove this bill from the freezer and finally enact it.

The writer is a journalist and commentator.

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Why Israel Needs a Better Political Class

Note: This piece is a response to an essay by Haviv Rettig Gur, which can be found here

Israel’s current political crisis exemplifies the maxim that hard cases make bad law. This case is desperate. Six months after the coronavirus erupted and nine months after the fiscal year began, Israel still lacks both a functioning contact-tracing system and an approved 2020 budget, mainly because Prime Minister Benjamin Netanyahu is more worried about politics than the domestic problems that Israel now confronts. The government’s failure to perform these basic tasks obviously invites the conclusion that civil servants’ far-reaching powers must not only be preserved, but perhaps even increased.

This would be the wrong conclusion. Bureaucrats, especially when they have great power, are vulnerable to the same ills as elected politicians. But unlike politicians, they are completely unaccountable to the public.

That doesn’t mean Haviv Rettig Gur is wrong to deem them indispensable. They provide institutional memory, flesh out elected officials’ policies, and supply information the politicians may not know and options they may not have considered. Yet the current crisis shows in several ways why they neither can nor should substitute for elected politicians.

First, bureaucrats are no less prone to poor judgment than politicians. As evidence, consider Siegal Sadetzki, part of the Netanyahu-led triumvirate that ran Israel’s initial response to the coronavirus. It’s unsurprising that Gur never mentioned Sadetzki even as he lauded the triumvirate’s third member, former Health Ministry Director General Moshe Bar Siman-Tov; she and her fellow Health Ministry staffers are a major reason why Israel still lacks a functional test-and-trace system.

Sadetzki, an epidemiologist, was the ministry’s director of public-health services and the only member of the triumvirate with professional expertise in epidemics (Bar Siman-Tov is an economist). As such, her input was crucial. Yet she adamantly opposed expanding virus testing, even publicly asserting that “Too much testing will increase complacence.” She opposed letting organizations outside the public-health system do lab work for coronavirus tests, even though the system was overwhelmed. She opposed sewage monitoring to track the spread of the virus. And on, and on.

Moreover, even after acknowledging that test-and-trace was necessary, ministry bureaucrats insisted for months that their ministry do the tracing despite its glaringly inadequate manpower. Only in August was the job finally given to the army, which does have the requisite personnel. And the system still isn’t fully operational.

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