U.S. Judicial Appointments: An Israeli Columnist's Take

Ze'ev Segal, Ha'aretz's legal affairs expert, wrote a column I whole heartedly agree with. Here it is in Hebrew, and here it is in English (see below as well).

Appointing a friend

By Ze'ev Segal, Ha'aretz, May 17, 2010
 

Last Monday, U.S. President Barack Obama appeared before the American people and announced that he was nominating his friend, Solicitor General Elena Kagan, as a supreme court justice. The caveat against "appointing your friends," which applies in Israel regarding the appointment of judges, seems foreign to American ears.

Obama met Kagan in the early 1990s when the two taught constitutional law at the University of Chicago Law School. He appointed her solicitor general about a year ago. If the Senate confirms her nomination, Kagan, who is 50 years old and Jewish, will join what Richard Nixon called the most powerful institution in America. It was a court ruling in the Watergate case that led to his resignation. Kagan studied law at Harvard Law School, where Obama also got a degree. The two, both outstanding students, were editors at different times of the prestigious Harvard Law Review. Editors of the journal have gone on to greatness in American jurisprudence and politics.

Before her appointment as solicitor general, Kagan was for six years dean of Harvard Law School, the first woman in the position. The American press is currently full of profiles of Kagan, which have mentioned her popularity among students at Harvard and how she argued with the rabbi at her bat mitzvah about the nature of the ceremony. (They came to an understanding.)

When Obama presented her to the nation, he spoke about her deep understanding of the law and about how she viewed the law not as an "intellectual exercise" but as a highly influential force in people's lives. In her remarks, Kagan spoke about how the law "protects our most fundamental rights and freedoms" and is "the foundation of our democracy." During the confirmation process in the Senate, her stance on ideological issues will become public, including her views on the right to an abortion, the legitimate means for fighting terrorism, the limits on freedom of expression and freedom of information, and the president's authority vis-a-vis other branches of government.

Kagan has not spoken much on issues the public is divided over, and her academic writings are few. She is known for not having a firm agenda and for being open to a range of views. At the same time, Obama expects that she will tip the balance in favor of democratic values. His stance in advocating limits on corporate contributions to political parties and candidates was rejected by the Supreme Court in January by a vote of five to four. A majority of justices rejected the position taken by the solicitor general, Elena Kagan.

Outsiders observing the way federal judges are appointed in the United States can't help but be both impressed and put off. The process is absolutely political. Translated into the Israeli context, it would involve nomination by the prime minister and confirmation by a majority in the Knesset - this seems inappropriate without any question. In Israel, the suggestion to increase politicians' influence in selecting judges was rejected by a broad consensus. The current system for selecting judges by a committee of two government ministers, two MKs, three supreme court justices and two members of the Israel Bar Association seems attractive compared to the United States.

On the other hand, the American system provides appropriate transparency that reaches a climax with the public questioning of candidates for the bench by the Senate Judiciary Committee. At the hearings, candidates are asked about their views on matters of principle such as judicial activism, balancing fundamental rights and limitations on oversight of the executive branch.

In Israel, the process is hidden from public view. Taking into consideration the fact that the Supreme Court decides controversial questions of principle, it is appropriate at least that members of the selection committee have a deep knowledge of the candidates' stance on fundamental ideological issues, as in the United States. These include the appropriate scope of judicial review over the constitutionality of laws, and judicial discretion in sentencing. One might also more seriously consider a public process before justices are selected for the Israeli Supreme Court, such as providing detailed background about the candidates' lives.

The promise that the Supreme Court will reflect the makeup of Israeli society is essential to strengthen public trust in the court, which despite an erosion of its status, is still at the top of the charts when it comes to faith in government institutions. This must be preserved.

Contempt of Court

A former deputy attorney general recently prepared a report listing several cases in which the powers that be - either Israel's government and its agencies or local authorities - have ignored the rulings of the supreme court and lower courts. I'd say it is time for the judges to send people to jail for contempt of court. I don't know if the law allows jailing in such cases, but it certainly should.

Eli Reifman, a businessman, has been repeatedly sent to jail this last year for contempt of court when he refused to transfer his shares in a high-tech company, Emblaze, to a court-appointed special manager. Just like private citizens get fined or jailed when they defy the judges, so should public officials. Start by fining mayors and officials in the government ministries responsible for the lack of implementation of judicial orders. Then, if that doesn't work, start giving out jail time.

Perhaps Jerusalem Mayor Nir Barkat would be the first public official to be sent to jail for contempt of court. He seems determined not to comply with supreme court decisions, and he's too rich to be hurt by heavy fines.

Israeli SC: No to Private Prisons

The Israeli Supreme Court struck down the Private Prisons Act yesterday, in an 8-1 decision. The justices in the majority said that it is unconstitional to transfer the right to use force against prisoners from the state to private companies. They said this would violate the Human Dignity and Liberty Basic Law. This is an international precedent. I wonder if it will encourage people in other countries to fight the privatization of prisons, especially in the States.

This is the right decision. There are certain government services that should not be privatized, especially those where the use of force is part of the package. I'm glad this ruling came down before the prison had any inmates in it.

The Amendment Amendment

Don't get me wrong, I have better things to do, but for some reason, after finding an old copy of the United States Constitution (old enough to be missing the 27th amendment), I just felt like writing an amendment to the method of proposing and ratifying amendments. Here it is, and any Senator or Representative can feel free to submit it to Congress (not that I have delusions that anything like that is going to happen):

Section 1. (1) Proposed amendments to this constitution may be proposed either by two-thirds of both houses of Congress or by a Constitutional Convention called by Congress.

(2) A Constitutional Convention shall be called whenever the legislatures of two-thirds of the several states shall submit applications to Congress regarding a specific issue within three years of each other.

(3) The number of Delegates to the Constitutional Convention from each state shall be the same as the number each state in entitled to have in the House of Representatives and shall be elected by the same method as representatives by the people of each state. The qualifications to serve as Delegate shall be identical to the qualifications to serve as a Representative, as shall be the compensation each shall receive for their service. However, no senator, representative or person holding an office of trust or profit under the United States shall serve as Delegate.

(4) The term of a Constitutional Convention shall not exceed two years. The Convention may dissolve itself earlier if, after proposing at least one amendment to the Constitution, a majority of Delegates so decides. If, after two years, a Convention fails to propose amendments, Congress may call a new convention, even without the application of the state legislatures. This right of Congress shall expire six months after the end of the Convention's term.

Section 2. (1) Amendments proposed by either method mentioned in Section 1 shall be valid to all intents and purposes as part of this Constitution, when ratified by the legislatures, conventions, or the people of three-fourths of the several states, as whichever of these three modes the proposing body may direct, provided that no more than seven years shall pass from the date of proposal to the date of ratification, unless the proposing body shall specify otherwise when proposing the amendment; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

(2) Whenever conventions shall be chosen as the mode of ratification, the delegates thereof shall be specially elected for that purpose, by whichever method each state shall by law provide. No state delegate shall simultaneously serve in a state legislature, Congress, or any federal or state executive office.

Section 3. All amendments proposed to the several states more than seven years before the ratification of this article and which have not yet been ratified, shall expire one year after the ratification of this article.

Section 4. The Congress and the several states shall have power to enforce this article by appropriate legislation.

Section 5. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several states, as previously provided in Article V of the Constitution, within seven years from the date of the submission hereof to the states by the Congress.

No Constitution for Israel

Last week Prime Minister Ehud Olmert announced to the Knesset that a proposed constitution will be brought to a vote this year. Different teams, both official and unofficial, have been working separately on different proposals to replace Israel's Basic Laws with a constitution, and it isn't clear which proposal Olmert has in mind. One of the proposals is being prepared by the Knesset's Constitution, Law and Justice Committee, whose chairman, MK Menachem Ben-Sasson, told Ha'aretz that a constitution would probably hurt minority rights. The thing is that in order to gain the support of the religious parties, the religious status-quo must be maintained, or rather restored to what it was in the past. That means getting rid of some of our more liberal laws and Supreme Court rulings.

Politicians think a constitution would be a magical cure to the problems of unstable governments and frequent elections (every two or three years instead of four). Proponents say the rules of the political game must be clear and hard to change, unlike the current Basic Law that can be easily changed (some with 61 out of 120 votes, others with a simple plurality). That is true, but that can be addressed by changing specific Basic Laws, especially the ones about the political system, but a constitution which would hurt Israelis' rights is worse than no constitution at all.

And in a semi-related story, a group of ultra-orthodox men attacked a male soldier and a religious woman for sitting next to each other on a bus and then attacked police officers who were called to the scene. These guys would probably like Ben-Sasson's constitution, wouldn't they?

Katsav's Shameful Plea Bargain

Moshe Katsav will not go to jail. Under a plea bargain crafted by his lawyers with Attorney General Menny Mazuz, he will admit he committed minor sexual offences and will receive a suspended sentence of one year. He will also be required to pay the accusers compensation.

This is quite a questionable plea bargain. It seems prosecutors have built a solid rape case, and could have achieved a conviction. Mazuz's reasoning for his decision is unacceptable.

"This agreement minimizes the harm to the institution of the presidency," said the attorney general. "It was important to spare Israel from seeing a president on trial." Well, actually, the harm to the presidency has already been done. Seeing a president on trial would be very good for Israel and would give us the feeling that equality before the law exists here. It is true that a president charged with rape is an embarrassment for Israel, but the embarrassment stems from the very possibility that our president could do such a thing. It is even greater an embarrassment if our president gets away with rape, despite the evidence against him, only because he is the president.

Mazuz also said that this is a big step. Katsav's status will change from president to sexual offender. Technically, that's true. But if the evidence against him is so strong, the change should be even more dramatic - from president to prisoner.