Of 'dictators' and Israeli democracy
Making sure that the majority of Israel's citizens have full confidence in the judgment of the Supreme Court is of paramount importance to Israeli democracy.
Was Franklin Roosevelt, that great democratic president, who led America to victory over Nazi Germany, a dictator? That was the accusation leveled against him during his second term of office in 1937 when he tried to alter the composition of the Supreme Court that was declaring some of his New Deal legislation unconstitutional. The Judicial Procedures Reform Bill of 1937, the legislation he tried to pass through Congress, was referred to as the "Court-packing Plan" by his opponents.
The bill was intended to give the president the power to add additional judges to the court, whose conservative majority was striking down some of Roosevelt's legislation designed to bring the country out of the depression. U.S. Supreme Court judges are appointed for life, and the legislation proposed by Roosevelt was intended to give him the authority to appoint additional judges in case sitting judges had reached the age of 70 years and six months, thus overriding the conservative majority of the court. The legislation never passed Congress, and as it turned out was not needed after one of the Supreme Court judges retired.
As is well known, judges to the U.S. Supreme Court are appointed by the president for life, making it essentially a political process - conservative presidents appointing conservative judges, and liberal presidents appointing liberal judges. The composition of the court at any given time is the result of a rather random process depending on the results of presidential elections and the longevity of the sitting judges. Despite the political nature of the Supreme Court appointments the court is held in high regard by the public.
This comes to mind as we watch the attempts in the Knesset to influence the composition of the Israeli Supreme Court, and the charges by the left that the Knesset majority is tampering with the democratic nature of the State of Israel. Even the insult "fascist" is hurled at some of the MKs now and then in the frenzy of the political debate. It is no more appropriate than the charge at the time that Roosevelt wanted to be a dictator. Whether Jabotinsky or Begin would have supported the suggested changes we will never know and is hardly relevant to the issue in question.
Supreme Court judges in Israel are not appointed by a political process, yet obviously they have political opinions, as do most of Israel's citizens. Do their political opinions influence their judgments in court decisions? In many of the cases brought before them there may be no political content involved, but no doubt, in some cases there inevitably is. Are the judges then able to isolate their political opinion from the decisions they have to take? That is not at all certain.
The obvious case that comes to mind is the High Court of Justice's decision to approve Ariel Sharon's plan to uproot Israeli settlers from Gush Katif and the northern tip of the Gaza Strip, an issue loaded with political content. The most important aspect of the decision that the court had to make was whether the forcible uprooting of 10,000 Israeli citizens from their homes was not an impermissible violation of their civil rights. After all, all of Israel's citizens, regardless of their political persuasion, regard the court as the ultimate protector of their civil rights. The court, in a 10-1 decision, upheld Sharon's disengagement plan stating in a majority opinion that although the uprooting of Israeli citizens from their homes was a violation of human rights, the court considered it a "measured violation which was not excessive". There is little doubt that this clearly problematic judgment will be debated for many years to come, and can be rightly ascribed, in no small measure, to the composition of the court.
The composition of the court is determined by a committee which includes a substantial percentage of sitting Supreme Court judges, thus providing them an opportunity to perpetuate the composition of the court. In these circumstances it is entirely legitimate for those in the Knesset, who feel that the composition of the court is not fully representative of the spirit of the majority of Israel's citizens, to attempt to affect a change in that composition. There is nothing undemocratic about that. On the contrary, freezing the present composition of the court is probably not in the best interests of Israeli democracy. However, making sure that the majority of Israel's citizens have full confidence in the judgment of the Supreme Court is of paramount importance to Israeli democracy.
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