Edited transcript of the Eidelberg Report, Israel National Radio, February 11, 2008.
If you see a generation which is constantly on the decline, go and investigate the Judges of Israel.
-Babylonian Talmud (Shabbat 139a)
At the recent Herzliya Conference, former Supreme Court president Aharon Barak warned or threatened the audience about attempts to introduce changes in the method of appointing judges of the Court—which critics have called a self-appointed oligarchy. Hence this essay.
Former U.S. ambassador to the United Nations, John Bolton, a brilliant lawyer, regards Judge Robert Bork as one of the finest legal minds in the United States. Judge Bork has said that Israel’s Supreme Court is the worst in the world—and he said this while Aharon Barak was Israel’s Supreme Court president.
In fact, eminent citizens of Israel across the political spectrum have been very critical of the Court, especially under Judge Barak. Here are the names of some of the critics: the late Chaim Herzog, former President of Israel; former Supreme Court President Moshe Landau; former Deputy President of the Court professor Menachem Elon; former Supreme Court Justice Yaakov Maltz; former Supreme Court Justice Zvi Tal; Hebrew University political scientist professor Shlomo Avineri; Attorney Yisrael Kluf, a member of the Israel Bar Association Central Committee; Hebrew University professor of law Ruth Gavison.
Most outrageous is Judge Barak’s dictum, “everything is justiciable.” This dictum violates a basic principle of constitutional democracy—separation of powers. The judicial arrogance implicit in the dictum makes nonsense of the rule of any stable law. It endows the Court with the power to dictate the moral values of society. Barak’s power-seeking dictum is a formula for judicial despotism—and this exactly describes his many flagrant rulings which trample on the heritage of the Jewish people. And this is not all.
The influence of Judge Barak alteration of government policies endangers this country’s survival. Not only did Barak substitute his personal predilections for the laws of the Legislative branch of government. He also substituted his personal sentiments for the decisions of the Executive branch directly and immediately responsible for the security of the Nation.
Barak often makes decisions oblivious of the fact that Israel is at war with an implacable foe. Many of his decisions ignore reality, that the Palestinians, whether called terrorists or “civilians,” are committed to Israel’s annihilation.
Untrained in military or security affairs, Judge Barak substituted his personal opinions for the professional judgment of the Israel Defense Forces on the routing of the security fence.
Untrained in military and security affairs, Barak vetoed decisions of the IDF to demolish buildings used by Arab terrorists to kill Jews.
Judicial imperialism is a menace to the Nation, and it is time to remove one’s velvet gloves when speaking of this issue. I will cite two cases mentioned in an editorial of The Jerusalem Post dated January 27, 2008. The first involves the present Supreme Court headed by Dorit Beinish, Judge Barak’s successor and disciple.
“Border policeman Rami Zoari, 20, was murdered [on January 24] and the police woman on duty with him was seriously wounded in a shooting at a roadblock that was being manned late at night, contrary to their commander’s best judgment…. The only reason why they were there at night, according to the Israel Police-Insp.-Gen. David Cohen and Jerusalem head Comdr. Aharon Franco, was a High Court ruling that the police had no option but to obey.
“The roadblock in question is the smaller and more vulnerable of two checkpoints into Shuafat in northern Jerusalem and is earmarked for pedestrians only. It handles less traffic than its larger neighbor 200 meters away, whose guards are protected by concrete barriers and narrow approach tracks, which make passage possible only in a single file. Without such roadblocks, assailants—such as those who perpetrated the … attacks—would be free to enter Jerusalem and beyond.”
The editorial states: “The police had wanted to channel all movement after sundown to the larger crossing. But the Supreme Court … ordered the smaller access route between Shuafat and Givat Ze’ev open 24 hours a day, out of concern for the quality of life of Shuafat’s [Arab] residents. (Emphasis added.)
“‘If it were up to me,’ Commander Franco declared, ‘this crossing would have remained closed, but the Supreme Court imposed its will.’ (Emphasis added)
The editorial then cites a case while Judge Barak was the Court’s president.
“In 2004 … the [Barak] court prevented the IDF from leveling a building overlooking … [a] junction leading to Gush Katif. That building was a sniper’s nest and launching-ground for repeated attacks on Israeli vehicles. On May 2, 2004, Fatah terrorists exited it to stop a car driven by a pregnant mother Tali Hatuel and her four young daughters. All were executed, one by one, at point-blank range … (Emphasis added.)
I now ask: Why has Hamas-dominated Gaza become a threat to the Nation? Why are children in Sderot being traumatized and mutilated by missiles launched from Gaza? Of course one may and should denounce Israel’s spineless government. But never forget it was Judge Barak who legitimized the IDF’s withdrawal from Gaza by ruling, contrary to objective international law, that Gaza as well as Judea and Samaria are “belligerent occupied territory.” This is more than anti-Zionism.
Because we are at war, this is no time for treating arrogant and irresponsible judges with velvet gloves. However, since Barak’s anti-Zionism and judicial imperialism may occur in peace time, contrast the judicial self-restraint of Associate Supreme Court Justice Louis Brandeis, an ardent Zionist. In 1936, Brandeis codified a series of rules the U.S. Supreme Court had developed for its own governance. Here are six of them:
Rule I. The Court will not anticipate a question of constitutional law in advance of the necessity of deciding it.
Rule II. The Court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.
Rule III. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.
Rule IV. The Court will not pass on the validity of a statute upon the complaint of one who fails to show that he is injured by its operation.
Rule V. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.
Rule VI. When the validity of an act of Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.
At this point one may ask: Why doesn’t the Knesset, having the power to amend Basic Law: Judiciary, prevent the Court from usurping the Knesset’s legislative authority? Self-interest, let alone patriotism, should suffice to prevent judicial imperialism. I will offer two explanations.
Perhaps the Knesset lacks the courage to counter the Supreme Court because, as polls indicate, as much as 90 percent of the public despises the Knesset as a haven for job-seeking politicians more concerned about their own personal or partisan interests than the national interest.
Alternatively, I believe Israel has a “shadow government” with agents in and outside the Knesset. This shadow government consists of elitists who, being hostile to Judaism, want to transform Israel into “a state of its citizens,” that is, into a multicultural society to prevent the prolific religious community from gaining political ascendancy. This has been the agenda of Judge Aharon Barak, an elitist who obscures his anti-Jewish rulings in drivel about democracy.