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A Substantive Debate With Friedmann and Rubinstein

One needs effrontery and chutzpah of a kind never demonstrated by Rubinstein during his years as a public figure in order to argue that Dorit Beinisch is not worthy of serving as Supreme Court president, and then, following her appointment, to ask for a 'substantive debate without personal attacks.'

Professor Amnon Rubinstein recently circulated a petition urging that "the debate on the issue of the legal system be conducted professionally, without personal attacks." But about a year ago, Rubinstein himself actually opted for a personal attack of sorts. Shortly before the new Supreme Court president was due to be appointed, he recommended that then-justice minister Haim Ramon "bring back retired president Meir Shamgar, whose tenure ended in 1995, for an 'emergency tenure' of two years in order to restore stability to the legal system. During this period, Shamgar would work to bolster ties among the various components of the Judicial Appointments Committee." He also called for freezing this committee's operations and said that only temporary appointments to the Supreme Court should be made during this period.

One needs effrontery and chutzpah of a kind never demonstrated by Rubinstein during his years as a public figure in order to argue that Dorit Beinisch is not worthy of serving as Supreme Court president, and then, following her appointment, to ask for a "substantive debate without personal attacks." Given this situation, perhaps it would be better for Rubinstein to remove himself from the debate and thereby minimize the damage that his public record has already suffered.

The justice minister also has chutzpah and effrontery in abundance. "To date, the rule in academia has been that first, a discussion is held. A campaign of personal attacks has been launched against me that lacks all factual basis," Friedmann said of the law professors' petition. But there has been no prior discussion of his own legislative initiatives, which have poured out like a tsunami. The professors' petition contains nothing personal, and Friedmann justifies his refusal to discuss it on the irrelevant grounds that it is part of an "orchestrated move" against him. Twenty-two of Israel's leading law professors signed the petition, but Friedmann does not want to deal with the opposition and has opted instead for insults.

"In all of my statements since being appointed to my post, there has not been a single statement that personally injured the Supreme Court president, or a single phrase that expressed contempt for or insult to the president," said Friedmann. Yet immediately following the High Court of Justice's deliberations on the case of former president Moshe Katsav, he rushed to utter irrelevant criticisms whose only aim was to undermine Beinisch. Even an Israel Prize in law is no guarantee of professionalism and good judgment when hate is the driving force.

Friedmann managed to pass, without public debate, an unnecessary and harmful law that sets term limits for court presidents. Had this law been implemented in the past, justices Moshe Landau and Yitzhak Kahan would never have served as Supreme Court presidents. They were 68 when their turn arrived. But under the new law, a justice cannot be selected for the presidency if his 70th birthday is less than three years away. Shamgar's tenure as president, which lasted 12 years, would have been cut to seven, and he would probably have retired and begun serving as an arbitrator at 64 instead of only at 70, the mandatory retirement age for justices. It is hard to understand how the public would have benefited from such an early retirement. Indeed, it is this same Shamgar who, at 81, Rubinstein sought to reinstate as court president for another two years, in complete accord with Friedmann, "in order to stabilize the legal system."

Friedmann, who presents himself as someone seeking substantive, rather than personal, debate, has not hesitated to say that "Beinisch should not be dismissed from her post, but had she not begun her tenure as president, I would have insisted on abolishing the 'seniority' system." Friedmann maintains that the most appropriate candidate should be selected as court president. The implication is that he does not consider Beinisch an appropriate choice. And that is the sort of discussion that Friedmann apparently deems not personal.

One need only look at the list of Supreme Court presidents (Olshan, Agranat, Sussman, Landau, Kahan, Shamgar, Barak) in order to appreciate that the "seniority" system, in which the longest-serving justice is appointed president, has served the public well and contributed to bolstering the court's independence.

Friedmann maintains that he wants an independent judiciary, but he is working in the opposite direction. His idea of selecting "the most appropriate person" should be cause for concern rather than hope. When it comes to which candidate is "the most appropriate person," it would be better not to accept the opinion of the man who chose Professor Nili Cohen as the person whose appointment to the court he was willing to launch a world war to secure. It is also not serious to ask the opinion of a retired magistrate's court judge on this issue, as Friedmann wants to do.

"I have concluded that the Supreme Court cannot be reformed unless Nili Cohen is part of it," a person close to Friedmann told me about a year ago - and if she, who in the meantime has withdrawn her candidacy, is not on the court, and Dorit Beinisch, who has not received a moment's respite, is on it, then there will also be no Supreme Court.