Thanks to an arcane election system and an apathetic and sectorial right, the radical left is kingmaker of judges in Israel. Time for a change.
Everyone knows that judges in Israel effectively “appoint themselves” and create an elite composed exclusively of the pro-Palestinian far left × The elections today for the representative leadership of the Israeli Bar Association expose the enormous efforts of the radical left in the Association to influence the appointment of judges in Israel × Splits, interests and sectorial politics rule the roost, and that’s without mentioning the NIF
To most Israelis, the Israeli Bar Association (IBA) sounds like just another drab professional organization. What few know is that this organization is one of the most powerful forces shaping the Israeli judicial system. What even fewer know is that the IBA has in recent years become a battlefield between the radical left-wing camp, including people from the New Israel Fund (NIF), and the moderate, conservative majority.
The ability of the courts to annul laws passed by the Knesset and become a kind of supreme legislative body is one of the most important parts of the strategy of the NIF, which funds many radical organizations – including B’Tselem, Adala, the Association for Civil Rights in Israel (ACRI) and others. Their goal is a simple one: to fight Israel’s Jewish character. On the (correct) assumption that such an agenda would never win at the polls, the NIF has long since understood that the surest path to influence lies in the courtroom, in human rights lawsuits, and in forcing a slanted and legalistic discourse on the public bureaucracy as a whole.
The NIF puts its money where its mouth is, investing a great deal in influencing the legal system. For three decades now, the NIF has run a lawyers’ program to train gifted legal experts with the aim of “[creating] a legal leadership to promote human and civil rights and social justice in Israel.” The graduates of the program include such leading lights as Hassan Jabareen, head of Adala; Dan Yakir, Legal Advisor of the ACRI; and Prof. Neta Ziv – who signed onto the appeal that led to the Katzir case and is today a lecturer at Tel Aviv University. Some of the program graduates have become part of the judicial system, such as Tel Aviv District Judge Dana Marshak-Marom and Dana Bricksman, a senior official in the Supreme Court department in the State Attorney’s Office.
Besides direct investment in future judicial personnel, the NIF generously funds dozens of “human rights” organizations who invest a fortune in flooding the Supreme Court with appeals against government policy regarding infiltrators, collective and other rights of the Arab minority, the IDF’s targeted assassination policy and many more such issues. It’s not surprising, then, to see the NIF-backed organizations fight a titanic struggle against law proposals meant to roll back some of the court system’s ever-expanding power regarding law and government.
The NIF and the IBA
Given their policy, it’s easy to see why the NIF would invest heavily in the IBA. Aside from the fact that lawyers provide the professional pool from which judges are chosen, the IBA also has a significant role in appointing those very judges. By law, the Judicial Selection Committee has nine members: the Justice Minister, an additional minister, the President of the Supreme Court, two additional Supreme Court judges, two MKs – and two lawyers, representatives of the IBA. Two out of nine is a lot; given that appointing a judge requires a majority of 7 in favor, a bloc of three judges and two lawyers grants them dominance over the appointment of judges in Israel. This is the math that ensures judges effectively “appoint themselves” into the system.
For years, the NIF has enjoyed a pliant leadership in the IBA. The previous IBA head, Yuri Guy-Ron, is a veteran human-rights activist, who worked in the ACRI, the “Center for Human and Civil Rights in Israel” and was even on the steering committee of the NIF’s jurist program. Before him, Adv. Shlomo Cohen ruled the roost. Today, Cohen serves as a member of the NIF’s International Council and has in the past served on the board of directors of the ACRI and B’Tselem.
All that changed in the 2011 IBA elections, when Adv. Doron Barzilai won a majority. According to sources in the IBA, aside from the fact that Barzilai ran an aggressive and accurate campaign, there was another contributing factor to his victory: the changing demographic makeup of Israeli lawyers. Graduates of colleges and Haredi lawyers have become increasingly dominant, and these preferred to vote for a candidate who is not identified with the extreme left.
Adv. Barzilai, who took the position by storm, started to enact a series of reforms whose main aim was the increasing liberalization of the IBA and the justice system. It was sufficient for Barzilai to try and bring back the “Judges Feedback Survey” – an initiative meant to allow lawyers to critique the conduct of judges – to make him into an enemy of the system. But it was another initiative of his which attracted the attention of the justice system’s big guns.
By law, the IBA is made up of five districts: Jerusalem, Tel Aviv/Center, Haifa, North, and South. Each district sends three representatives to the national IBA council, a kind of IBA “Knesset” responsible for voting on the IBA budget and electing representatives to the Judicial Selection Committee. Since there are enormous numerical disparities between districts – the Tel Aviv district has 40,000 members, while Haifa, North, and South each have a few thousand – the present structure grants enormous power to the districts, even if some have a majority of Arab lawyers, and very little power to the lawyers in the field. This structure disproportionately limits the power of the masses of lawyers in the IBA, balancing them out through minorities from other districts. Since the entire council amounts to 48 members overall, 15 of whom are district representatives, these last have a disproportionate effect on decision making.
A Shadow IBA
A small story will emphasize this point: one of the reforms enacted by former IBA head Shlomo Cohen was the establishment of a separate Northern district. This district, based in Nazareth, is made up almost entirely of Arab lawyers – whose political leanings are obvious. This move greatly strengthened the radical wing of the IBA and further weakened its democratic elements.
To change this, Barzilai, along with many MKs, initiated a change in the law establishing the IBA. The change stated that various districts will send a number of representatives commensurate with their relative size. This move would automatically grant substantial power to the Tel Aviv district and would truly represent the will of the majority of lawyers in the IBA.
The process of legislation was long, arduous, and full of surprises – such as the opposition of judicial critic Yariv Levin to the effort – but it advanced step by step. In the end, despite an emerging majority in favor of the amendment, the opponents used the doomsday weapon: On the eve of voting for the law by the Knesset’s Constitution, Law, and Justice Committee, a legal opinion by the Attorney General landed on their desk, and the law was shelved.
Now the floodgates of opposition to Barzilai opened in earnest. In the following months, the council elected representatives to the Judicial Selection Committee, one of whom was Khaled Husni Zouabi. According to veteran journalist Ben-Dror Yemini, Zouabi is considered to be close to the circles of the nationalist Arab party Balad.
But the bigger move was still ahead – the outright splitting of the IBA, and the running of a shadow association by former IBA head Guy-Ron.
A Split IBA
One of the senior partners of Barzilai was Adv. Efi Naveh, who ran for head of the Tel Aviv District on Barzilai’s ticket. The Guy-Ron party strategy was to cause conflict between Barzilai and Naveh and thus split the majority party. A Jerusalem lawyer well versed in the goings on in the IBA tells of a conversation he had with a senior member of the Guy-Ron faction who has also represented the PA and PLO activists in Jerusalem courts. “He told me: ‘listen closely to what I’m telling you,'” the Jerusalem lawyer explained to Mida. “Efi Naveh will not stay friends with Doron. We will separate them. Doron will be a paralyzed puppet for four years, and they will fight each other. This one will be lame and that one will be lame, and a moment before the next elections we’ll run our own candidate, and that’s how we’ll win.”
It wasn’t long before this prophecy came true. Crisis followed crisis and the split between Barzilai and Naveh became a bitter reality. Naveh surrounded himself with the district heads and ran a sort of “Alternative IBA” and initiated his own policies. According to sources knowledgeable on the issue, the mastermind behind all this was none other than Yuri Guy-Ron.
The connection between the two was revealed when they announced the establishment of a new party to run in the next IBA elections, with Efi Naveh at its head. Thus did Naveh – once identified with the center-right – become the representative of the radical and Arab faction in the IBA. Politics truly makes for strange bedfellows.
To understand the significance of all this, let’s look at the Judges Feedback Survey affair. When Barzilai began conducting the poll last year, Supreme Court President Asher Gronis announced that “until further notice all contacts and connections with the IBA and its central committee are suspended”; at the same time, he stated that “contact with district IBA committees will continue.” The announcement came from the Court Administration.
These were not empty words. A week after the announcement of the boycott, the district heads – Guy-Ron’s people – held a conference in Eilat. Judges didn’t hesitate to come en masse: no less than 38 judges, including Gronis himself, arrived to honor it with their presence. A similar incident took place during the opening of the legal year organized by the IBA. Dozens of judges who had RSVPed had to cancel due to orders from on high. Gronis, in case you were wondering, attended an alternative event hosted by Guy-Ron’s people, where the Supreme Court President condemned Barzilai and the Judges Feedback Survey.
The picture is clear: the entire justice system, jealous of its power and independence, along with the radical branch of the IBA are fighting against the elected officials of the IBA to prevent outside oversight of any kind and retain their dominance. These are serious charges, but in light of the facts, they cannot be avoided.
The Right Fiddles while the Courts Burn
Unfortunately, while the left is working carefully and thoroughly to retake the IBA, the right appears to be in a kind of coma. Many sources we spoke to during recent weeks described a troubling phenomenon: the conservative/right-wing camp doesn’t spot the danger and is not even engaged in the fight. For many in this camp, the rifts, debates, and intrigues are nothing more than petty personal politics that have nothing to do with ideology. Thus one can find lawyers active in Likud and the Jewish Home who support Naveh and Guy-Ron and even support their candidates for the Judicial Selection Committee.
When you add to this (religious) sectorial thinking, things get even worse. As B’sheva reporter Yair Shapira revealed, during the previous IBA elections, Rabbi Elyakim Levanon of Elon Moreh called to support Guy-Ron’s faction. When asked why he would support a hard leftist, he explained that “people who know the system in depth came to the conclusion that Guy-Ron has a better understanding of the needs of religious lawyers.” Who are these people? Adv. Uzi Eliezer, for instance, an Elon Moreh resident close to Rabbi Levanon who explained to B’sheva that despite Guy-Ron’s problematic political positions, “after all, this is an association which is a professional union and there’s no need to give so much weight to the political issue.”
And why is it so important? Well, the IBA council also appoints the committee for appointing dayanim – and here, the struggle is primarily between religious Zionists and Haredim. In this struggle, it’s easy for IBA parties to “buy” religious support for appointment of “their”
dayanim in exchange for backing of choosing “our” judges.
One can see a similar pattern in the current elections of representatives to the Judicial Selection Committee. The Barzilai camp presented two candidates: Adv. Pinhas Marinski, who served on the committee before and has conservative views, and Adv. Dalia Rabin, who despite being on the center-left has conservative views regarding judicial activism and the separation of powers. On the other hand, Guy-Ron’s party put forward Adv. Ilana Saker and Adv. Khaled Hussein Zouabi, the current representative on the committee.
Because the key issue in these elections was the approach of the representatives to the nature of the justice system and not their political opinions, the proposal of Rabin was a wise move. Her position on the political center could sway at least some of the IBA representatives who are not in either camp, and since the vote was secret, maybe even get some votes from Guy-Ron’s camp as well.
But opposition surprisingly came from the right wing and settler camp. “How can we vote for Rabin after Oslo and the Disengagement?” asked one of the prominent activists among the settler public. “I’ve been working for years to get a national candidate [into the committee], but it still hasn’t succeeded.”
When asked about his priorities on this score – whether a right-wing “national candidate” was preferable or perhaps a jurist with conservative views, his answer was rather surprising: “The truth is I never thought about it. But now that you ask, I think a national candidate gets first priority.” Even settlers, then, are in love with the power of judicial activism – they simply want “their” judges doing it and not the other guy’s.
Other cases involve candidates for the Dayan Appointments Committee who, it is argued, have made a “dayanim for judges” deal with Guy-Ron’s people. Many sources we spoke to repeated the same argument: “How can we vote for a left-winger, and a Rabin, yet?” And if the matter is doomed anyway, why not at least win the fight for dayanim?
When the issues of the religious sector or religion are at the top of the agenda, it is not a surprise that fundamental issues of liberal democracy – especially that of the function of the judicial branch – get knocked down to the bottom.
This is how legal politics operate, then: the left recruits all its efforts and energy to win the fight, in order to maintain the present undemocratic constitutional structure which allows the courts a key role in determining not just the law but also government policy. Meanwhile, the Knesset is getting weaker, department legal advisors and the Attorney General are grinding the government to a halt – and right wingers are busy worrying about their sectorial slice of the pie.
While Land of Israel lovers fantasize about “national” candidates, the Supreme Court will continue to order the dismantlement of settlements established by government decision. While people of tradition and nationalism will dream of Talmudic doers of justice, the courts will continue to destroy the traditional family and convert the Jewish state into a multi-cultural bi-national one.
The way to return power to the people runs through legal conservatism and the formation of more cautious and balanced courts. The 48 representatives convening today could help a great deal – if they only will it.
English translation by Avi Woolf.