Drunk with arrogance
by Jonathan Rosenblum
Hamodia
January 18, 2002

In light of the criticism of the Israeli Supreme Court that has finally begun to be heard over the last two years, one would expect the Court to cut its sails to avoid providing ammunition to its critics. Yet hardly a week passes without the Court offering new evidence of its own arrogance. In matters both large and small, the Court proclaims its freedom from all constraints, even as it creates out of whole cloth rules by which the other branches of government are to be bound.

Two weeks ago, the Court had the opportunity to consider a ten-year-old case, in which the Bar Association Ethics Committee, fined an attorney for an article critical of the procedures in traffic courts in Israel. A decade ago, Simcha Nir wrote an article in Auto magazine. He described the practice of requiring those who wanted to contest traffic tickets to return another day for a hearing (and thereby miss a second day of work) as a “conspiracy” between the courts and the police to compel guilty verdicts. In response, the bar association fined Nir for not upholding the honor of the legal profession and for conduct unbecoming a lawyer.

The case presented the Court with an opportunity to write a paean to the virtues of free and robust speech. Legal scholars expected the Court to apply to the judiciary the same advice that it has often given to members of other governmental branches aggrieved by criticism directed at them – develop your “powers of endurance.”

The Court did nothing of the kind. First the Court gave an extremely literal reading to Nir’s article, as if he had been accused the judges and police of actually sitting around a table plotting how to extract guilty pleas. Having first given Nir’s words a forced reading, the Court then found that they defamed the judiciary and went beyond the bounds of legitimate criticism.

All this will no doubt be astounding to students of American free speech doctrine. Though there is much debate about whether the First Amendment applies equally to so-called “commercial speech” or to allegedly artistic works that violate community standards of morality, all are clear that it meant to protect “political speech.” It is hard to imagine a purer case of political speech than criticism of various organs of government. Limiting criticism under vague categories such as “conduct unbecoming a lawyer” will have a chilling effect on all governmental critics. Freedom to speak harshly to authority is one of the hallmarks of a free and democratic society.

What makes the Court’s decision particularly galling is that Court President Aharon Barak has himself been highly critical of the other branches of government and protective of critics of those branches. In his book Judicial Discretion, he writes of the “suspicion, based on experience, that the Knesset will harm fundamental democratic values.” Barak’s recent campaign against the bill to create a constitutional court – a campaign that he orchestrated with the skill of a old-time Chicago ward healer – was predicated on the claim that sponsors of the legislation were out to limit human rights, which only the current Court can protect.

By upholding the Bar Association’s disciplinary action against Nir, the Court not only betrayed the most fundamental principles of free speech, it showed that it applies one set of rules to itself and another set of rules to other governmental branches. Criticism of the judiciary is lese-majesty, which threatens the very rule of law, while criticism of other branches is not only permissible but desirable.

Such double standards are quite typical of the Court. The Court has enunciated on an ad hoc basis all kinds of norms for the other governmental branches. It has ordered the Prime Minister to fire governmental ministers and forbid him from appointing an advisor on terrorism who did not meet its standards. When issuing such directives, the Court does not bother indicating the sources of its power to dictate standards to other governmental bodies, or even from whence it has derived its standards. These things are apparently self-evident to all enlightened men and women.

Yet when it comes to the Court itself, the justices view themselves as free of even explicit rules drafted by one of their own members. The ethical code for justices, drafted by former Court President Meir Shamgar, requires a judge to recuse himself from any case “in which he has social or family ties to the accused, or to any of the attorneys or with a central witness.” Yet when an appeal from a criminal conviction came before the Supreme Court, Justice Theodore Orr refused to recuse himself, even though a key witness in the case, who had been sharply criticized by the trial judge, was a close friend, as were convicted man’s attorneys. Orr argued the ethical code was only advisory–not binding, and the Supreme Court upheld his position.

The Court creates norms and imposes them on other governmental actors, who could never have known of their existence, while declaring itself immune from explicit written rules. By not requiring Orr to recuse himself, the Court also effectively declared itself free from the rules of human nature. The current justices, it would seem, are superhumans who are above suspicion of the normal human bias in favor of one’s friends.

Nor is that the only superhuman capability that the justices attribute to themselves. Court President Aharon Barak reacted angrily recently to a Bar Association plan to issue formal evaluations of sitting judges based on the comments of attorneys who appear before them. Admittedly such evaluations, like students’ evaluations of professors, cannot be the sole measure of judicial competence. There is plenty of room for mischief by attorneys who may have lost a case before a particular judge.

At the same time, such evaluations by the Bar are formalized in many jurisdictions throughout the United States. There is a widespread recognition that attorneys who have appeared in a particular court can provide a valuable perspective on such intangible qualities as judicial temperament and courtesy to litigants and attorneys, which cannot be ascertained from a trial record.

Barak, however, angrily rejected the Bar’s right to interfere in any way in the deliberations of the panel on judicial selection, which he basically controls. The panel can ascertain all it needs to know about a judge by examining the reasonableness of his or her sentences, he claims.

This is vintage Barak. First, his own standard of reasonableness becomes the measure of all things. Second, he can ascertain the reasonableness of a sentence without ever having heard the witnesses or being present at the trial.

Supreme Court claims of omniscience do not even surprise any more. After all, the Court not only overruled the acquittal of Nachum Korman on manslaughter charges but entered a guilty verdict without ever having heard and evaluated the witnesses. A key witness in that case was Yehuda Hiss, Israel’s chief medical examiner. The trial judge had been skeptical of Hiss’s pathological findings, but the Supreme Court relied heavily on his testimony in convicting Korman. Now that Hiss is accused of trafficking in body parts and a host of other unsavory crimes, the trial court’s skepticism looks better all the time.

By consistently applying different rules to itself than to the other branches of government and attributing to itself superhuman powers of discernment and freedom from bias, the Court does more to damage its own image than a host of critics could ever do.