Among the many flaws in Israel’s deeply dysfunctional judicial system is the procedure for selecting new justices to the supreme court, which requires that three sitting justices be part of the nine-member judicial-appointments committee. The Knesset has recently proposed modifying the rules, not to change the committee’s makeup but to take away the justices’ veto power over its decisions. In a recent speech, the former court president Aharon Barak—who did much to augment the institution’s power over the elected branches of the government—responded that the court is a “family” and “we cannot bring in someone who is not part of the family,” and encouraged the entire supreme court to resign in retaliation. Michael Deborin comments:

It’s hard to exaggerate just how serious this is. The man who stood at the top of the Israeli justice system for many years has now declared war on public representatives and is threatening to shut down the system—all because of a suggested technical change which does not harm the solid and automatic majority justices usually have [in favor of their chosen candidates].

Such statements are appropriate for the head of the Soprano family, not the sois-disant father of the “enlightened public.” [Exhibiting a similar attitude], the justice system previously enlisted itself to boycott the Israeli Bar Association for daring to distribute a questionnaire [to its members] about judges’ performance. When you recall the statement of the late supreme-court justice Mishael Cheshin that he will “cut off the hand” of anyone who tries to change the structure of the court, it’s hard not to conclude that—when it comes to criticism, transparency, moderation, and tolerance—Israel’s judges do not practice what they preach. . . .

Barak and his colleagues are uninterested in new members of the family, of the sort who don’t think like them, who have doubts about the judicial revolution, and who espouse judicial conservatism and restraint. Barak and his colleagues want to continue to play on an empty field, with no opposing side. . . . They are not interested in letting the broader public determine who gets to be a judge and how much they can intervene in the law. They didn’t come to play fair; they came to win.

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Aharon Barak Again Threatens Elected Representatives and Calls on Judges to Resign

This piece was first published on the Hebrew-language website Mida on December 5, 2016, rendered into English by Avi Woolf, and republished here with permission.

In an aggressive speech last week, the former supreme-court president Aharon Barak crossed all possible lines and called on judges to resign if the judicial selection process is changed.

Last weekend, the former supreme-court president Aharon Barak gave a controversial speech at the annual conference of the Association for Public Law. As News1 reported, Barak said, among other things, the following:

We need to understand that the Supreme Court is one family, even if it has different opinions, The good of the state is that there be a coherent court, that the relations be like in a family, with all the disputes. We cannot bring in someone who is not part of the family.

Barak then appealed directly to the justice minister, who is present at the time, declaring that he is fighting with everything he has against the proposal to abolish the veto held by those supreme-court justices on the judicial-appointments committee. “If you made this threat to me,” said Barak, “I would resign and I would tell all supreme-court justices to resign. If there are threats, we will all go into retirement, and I will propose to all my colleagues that they do so.”

It’s hard to exaggerate just how serious this is. The man who stood at the top of the Israeli justice system for many years has now declared war on public representatives and is threatening to shut down the system—all because of a suggested technical change which does not harm the solid and automatic majority justices usually have [in favor of their chosen candidates].

Such statements are appropriate for the head of the Soprano family, not the sois-disant father of the “enlightened public.” [Exhibiting a similar attitude], the justice system previously enlisted itself to boycott the Israeli Bar Association for daring to distribute a questionnaire [to its members] about judges’ performance. When you recall the statement of the late supreme-court justice Mishael Cheshin that he will “cut off the hand” of anyone who tries to change the structure of the court, it’s hard not to conclude that—when it comes to criticism, transparency, moderation, and tolerance—Israel’s judges do not practice what they preach.

The Gun from the First Act

Although Barak stepped down from the court in 2005, his teachings and spirit, and the excessive power he has managed to arrogate to the court, are still with us, and it’s hard to see how this will change in the near future.

Barak’s power-grab involved not only taking more power for himself and his colleagues on the supreme court, but also his constant vigilance lest any of the “subjects of the kingdom” try to “rebel” against his “judicial revolution.” As someone whose political skills are no less acute than his legal ones, Barak understood that the theoretical foundation he laid to fortify the immense power of the supreme court will not last if the rival team comes on the field, and the two approaches—judicial activism versus conservatism and restraint—compete against each other as equals.

This is why Barak did everything he could to block the candidacy of Ruth Gavison for the supreme court, disqualifying her because “she has an agenda.” At the same time, he took care to appoint his protégés and heirs, judge after judge. At the beginning of the 2000s, when another “danger” emerged in the form of a possible constitutional court, Barak came down from Mount Olympus and went from one member of Knesset to another, like a desperate lobbyist, to get them to reject a proposal which would have split the power of the supreme court. His efforts succeeded and the proposal was withdrawn.

Even when Justice Minister Daniel Friedman, a jurist of international standing himself, acted to promote particular reforms in the legal system, it was Barak who stood at the head of the opposing camp. Even then, in an interview with Haaretz, Barak made use of extreme rhetoric, complete with imagery more appropriate to gunslingers from the Wild West.

After all, the justice minister is already coming and telling the court, “Take the gun and put it next to your temple. If you side with me, the gun won’t fire. But if you don’t, the gun fires and your authority falls.”

These are just some of the ways in which the supreme court has worked to fortify its power. And it works. Even after Barak stepped down, the supreme court has become increasingly activist. With the retirement of Justices Asher Grunis and Naor (who are considered relatively conservative), this trend is set to continue with no change in sight.

Dominating the Field

Barak understands very well what many on the right either don’t understand or refuse to: so long as the balance of power between conservative judges and progressive judges is overwhelmingly in favor of the latter, even if a conservative judge is appointed here or there, the general picture will not change—just like a soccer team with eleven players will always beat one with three. The secret to the preservation of the supreme court’s excessive power is in the judicial selection process, that same committee where judges have three votes out of nine. Barak understands that any change in the operation of the committee may bring a sea-change and lead to new appointments and the end of his hegemony.

It’s not for nothing that the American jurist Richard Posner called Barak an “enlightened despot,” describing him as a pirate who cleverly exploited a political and legal vacuum to strengthen his power.

Barak and his colleagues are uninterested in new members of the family, of the sort who don’t think like them, who have doubts about the judicial revolution, and who espouse judicial conservatism and restraint. Barak and his colleagues want to continue to play on an empty field, with no opposing side.

They also do not care that most democratic countries have a judicial selection system which grants prominence to the legislative branch, as Aviad Bakshi has demonstrated in his writing on this subject. They are not interested in letting the broader public determine who gets to be a judge and how much they can intervene in the law. They didn’t come to play fair; they came to win.

To Peter Berkowitz, the rot in American institutions of higher learning exposed by Tuesday’s hearings resembles a disease that in its early stages was easy to cure but difficult to diagnose, and now is so advanced that it is easy to diagnose but difficult to cure. Recent analyses of these problems have now at last made it to the pages of the New York Times but are, he writes, “tardy by several decades,” and their suggested remedies woefully inadequate:

They fail to identify the chief problem. They ignore the principal obstacles to reform. They propose reforms that provide the equivalent of band-aids for gaping wounds and shattered limbs. And they overlook the mainstream media’s complicity in largely ignoring, downplaying, or dismissing repeated warnings extending back a quarter century and more—largely, but not exclusively, from conservatives—that our universities undermine the public interest by attacking free speech, eviscerating due process, and hollowing out and politicizing the curriculum.

The remedy, Berkowitz argues, would be turning universities into places that cultivate, encourage, and teach freedom of thought and speech. But doing so seems unlikely:

Having undermined respect for others and the art of listening by presiding over—or silently acquiescing in—the curtailment of dissenting speech for more than a generation, the current crop of administrators and professors seems ill-suited to fashion and implement free-speech training. Moreover, free speech is best learned not by didactic lectures and seminars but by practicing it in the reasoned consideration of competing ideas with those capable of challenging one’s assumptions and arguments. But where are the professors who can lead such conversations? Which faculty members remain capable of understanding their side of the argument because they understand the other side?