September was a fraught month in relations between the government and the judiciary. First, a respected Supreme Court justice was disqualified. Then the way was paved for the politically tainted and personally motivated appointment of another justice. Then a fierce political offensive was launched by members of the ruling party who sought judicial appointments for their cronies and complained to the prime minister that the party did not have sufficient influence in key positions in the court system. The delicate balance between the judicial and executive branches of government threatened to come apart and bring the whole thing crashing down.
All of this happened 70 years ago this month, with the inauguration of Israel’s Supreme Court at the Russian Compound in Jerusalem, its location until 1992. The players in this legal drama included Pinchas Rosen, the first Justice Minister; Gad Frumkin, the only Jewish Supreme Court Justice under the British Mandate and Moshe Smoira, the first president of Israel’s Supreme Court. The political offensive did not involve right-wingers, but rather lawyers who were members of the ruling Mapai party who convened a special session to discuss “the degree of influence of the workers’ movements in key positions of the judicial apparatus.” Behind this formal language was a direct demand by the Mapai members of Prime Minister David Ben-Gurion to appoint “loyal” party members to judicial posts.
Dr. Natan Baron, an expert on the history of the Israeli court system, found plenty of “problems, intrigue and even corruption” behind the scenes of the inaugural ceremony for the Supreme Court on September 14, 1948 at which the first justices were sworn in. He provides a fascinating glimpse into the behind-the-scenes actions that sullied the start of the esteemed institution.
From the start, there were Mapai members who demanded that the party leadership appoint judges whose “public stance fit the party,” says Baron. “I.e., whose outlook and political affiliation was Mapai.” In his archival research, Baron found a document in which Mapai jurists wrote that “Some people unworthy of the robes have penetrated the ranks of the judges.” Meaning people whose political viewpoint was not to their liking, he says.
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The court’s critics went even further and did some digging to uncover judges who were not party members, as Baron relates in his book “Mishpat, Yetzarim VePolitika.” “This activity included compiling lists of prominent figures that noted each judge’s political affiliation – quite a problematic action in itself,” he explains. “They used the expression ‘our friends,’ which was very well-known in those days as code for ‘Mapai members.’ But they weren’t just acting as observers. Their activity included efforts ‘to insert’ ‘our friends’ into the court system.”
Dr. Baron, 81, grew up in a Revisionist family and has been following the Israeli legal system for decades. In 1957, at age 20, he was named Yedioth Ahronoth’s court correspondent in Jerusalem while he was still studying law at the Hebrew University. “Every day I would go to the big building in the Russian Compound where all the courts, including the Supreme Court, were located,” he says. “So I got to know a lot of judges whom I later wrote about.” He got further acquainted with the court system when he married a judge (Tzipora Baron). In 1997, when he was 60, after more than 40 years of working in the media, he turned to academia and wrote a doctorate on the history of the Israeli judicial system.
“I can confidently say that from doing archival research in Israel and abroad I was able to uncover the true picture of the processes that led to the founding of the Israeli judicial system,” Baron says.
The archival material he found suggests possible bribery, hit lists, political appointments and all kinds of scheming behind the establishment of the country’s first Supreme Court. Not the sort of history that inspires pride. “It was a mix of politics, impulses and law, and there were episodes that in today’s world would make headlines and lead the evening news,” he says.
A one-man selection committee
In the early years after the country’s founding, the man who practically single-handedly established the Israeli judicial system was Pinchas Rosen, the first justice minister. For the first five years, he personally appointed about 100 judges, without having to consult with anyone. Baron discovered that Rosen for the most part opted to appoint other yekkes (German-born Jews) like himself and tended not to appoint candidates from groups he deemed “unsuitable” – Sephardim, women, Arabs, Haredim and what at the time was considered the far left.
Rosen managed to staff the magistrates’ courts and district courts in time for them to open right after the state’s inception. But the Supreme Court did not begin operating until four months later, in September 1948. One reason for the delay was that Gad Frumkin, the only Jewish justice to have served under the British and the natural candidate to head the new Israeli Supreme Court, was forced out in disgrace, so that an entirely new Supreme Court had to be established.
Baron spent a long time poring through the archives trying to answer the question of why Frumkin was ousted. Finally, he came upon some never-before-published documents. “Rosen said that there was ‘gossip’ among the public that Justice Frumkin had taken a bribe when he served in the British Supreme Court, to throw a trial,” he says. “The astounding thing in this story is Rosen’s statement that he was personally involved in this episode – since the person giving the bribe was his client when Rosen was a lawyer.”
This accusation was never properly examined and was never proven or refuted, but it was enough to bring an abrupt end to the long and distinguished career of an eminent justice, and to cause a cloud of suspicion to hover over him for the rest of his life, a cloud that to this day has not been dispelled. At the same time, Frumkin did not try to hide that he received “supplemental income” from the Jewish National Fund while he was a justice under the British Mandate. Baron found in the archives evidence of Frumkin discussing wages with people outside the judicial system. “Someone reading these lines today would be appalled, but you have to see things through the prism of the time, when there were different norms,” he says. Neither Frumkin nor the Zionist establishment saw any problem with the lone senior Jewish jurist under the British Mandate cooperating with the leadership of the Yishuv (the Jewish community in Mandatory Palestine) to promote the Yishuv’s interests.
Frumkin’s name appears in a historic text known as “the classified document.” It is a detailed, anonymous memo that was submitted in March 1948 to the leadership of the Jewish Yishuv and contained a list of all the Jewish judges who served in the British Mandate before the state’s founding. The objective was to recommend to the government that was about to come into being which judges should continue serving in the new state and which ones should be dismissed. Next to the name of each judge was a personal and professional evaluation. Next to Frumkin’s name, with input from Rosen, was written: “Has much seniority. There is talk concerning his integrity and other influences. He should not [keep his position] in the Jewish state.” Next to the names of other judges appear comments such as “open to influences,” “was once a Revisionist” and “is a member of Poalei Agudath Israel [an ultra-Orthodox party].”
You discovered that the author of the document was Haim Cohen, who went on to become a Supreme Court Justice. Just how unusual was this?
“There is no question that is a fateful list of historical significance. It was meant to shape the character of the new judicial system. The document refers to 23 judges, and a plus or minus sign appears next to each name, for a positive or negative evaluation. But in most cases there was no solid proof of acts of corruption or of accepting bribes, so vague and general terms with a negative connotation were used, like, ‘People say that…’ In effect, this document constituted an attempt to influence, for self-interested reasons, the makeup of the new judicial system, as part of an effort to get rid of a certain group of judges and bring in others in their place.”
Ultimately, Dr. Moshe Smoira – a business partner of Justice Minister Pinchas Rosen in the Smoira, Rosenblit, Krongold & Bar-Shira law firm, who was embroiled in a personal dispute with Frumkin – was appointed to the coveted position of Israel’s first Supreme Court president. Smoira was also an official member of Mapai and his law firm had represented the Histadrut Labor Federation in Palestine.
“The selection process for the first judges was entirely political and purely personal. The talents and education of Smoira and others were not necessarily the top considerations,” Baron says.
In his research he discovered how Rosen, who was a law partner and close friend of Smoira for decades, went to war to get Frumkin out of the way so that Smoira could be appointed Supreme Court president. “If Rosen hadn’t been appointed as justice minister, it’s rather doubtful that Smoira would have been appointed to the distinguished position,” says Baron.
Skeletons in the closet
Baron found skeletons in Smoira’s closet too – an odd episode that in today’s terms would be called corruption: “He received free tickets from El Al. This shows what the norms were like in those days,” says Baron, displaying a letter sent to Smoira by the director of El Al in 1950, saying the company is honored to offer him a free El Al flight to any European capital. Smoira took him up on the offer two years later when he flew to Zurich at the company’s expense.
Perhaps the financial problems that overshadowed Smoira’s brief tenure as president from the beginning had something to do with it. Baron went through his journal and saw how troubled he was over this. “He was practically broke,” he says. “Less than a year after he was appointed president of the Supreme Court, Rosen brought the matter up at a cabinet meeting. He said that Smoira had presented him with an account that “proved he was unable to make it.”
Until 1953, Supreme Court justices were appointed by the cabinet, with Knesset approval, with the boundaries between the executive and judicial branches being somewhat blurred. Afterward, the Judicial Appointment Committee began to operate. Besides Rosen, the first attorney general, Ya’akov Shimshon Shapira (who was formerly the Haifa representative of Smoira’s law firm) was also quite involved in making appointments. He summoned one candidate, District Judge Shneor Zalman Cheshin, for a meeting at which he accused him of leaning to the right side of the political map and of being a sympathizer of Etzel and Lehi (the pre-state underground militias associated with right-wing political movements).
“By any measure, this was a move that deviated from every standard practice,” says Baron. “The attorney general, a high-ranking official, who just a few weeks earlier was an ordinary lawyer, summons to his office a respected and long-serving district judge who is up for promotion to a top position on the Supreme Court.”
Cheshin’s appointment was ultimately approved, though, and on September 14, 1948, the new Supreme Court was inaugurated with the following members: President Moshe Smoira, Yitzhak Olshan, Menachem Dunkelblum, Shneor Zalman Cheshin and Simcha Assaf. Most of them did not last long on the court, due to health reasons. Four out of five were seriously ill at the time of their appointment (No one asked them to present a declaration of good health prior to their appointment) and passed away in fairly quick succession. Smoira lost his wife three years after becoming court president, suffered a stroke shortly after he married his lover and was forced to step down in 1954. He died seven years later.
At the end of the day, despite all the troubling aspects surrounding its establishment, the court, under Smoira’s leadership, became a prestigious institution that gained a high degree of public trust. How did this happen?
“A lot of the reason for that is that the Supreme Court issued a series of rulings that proved it was a thoroughly independent body. It went against the government at times, it protected the rights of rightists and leftists equally and it protected the little citizen in the face of the big government. It also accorded fair treatment to those, such as the Arabs and the British, who were considered enemies at the time.”