In December 6, 1949, the Israeli cabinet convened for its weekly meeting. The previous day, Prime Minister David Ben-Gurion had dropped an international bomb by declaring Jerusalem to be Israel’s capital. But there were other items on the agenda now. One was the appointment of a new Supreme Court justice.
Only five justices then served on the highest court in the land. The court’s president was Justice Moshe Zmoira. The minister of justice who appointed him, Pinchas Rosen, had previously been Zmoira’s partner in a law firm. Rosen, who like Zmoira was German-born, led the small Progressive Party. Back then, the prime minister did not attach great importance to the justice portfolio.
The load on the court’s narrow shoulders was heavy at this point, and Rosen wanted to appoint two more justices. The Judicial Appointments Committee hadn’t yet been born; judges were appointed by the government, with the Knesset’s ratification.
The first of the two Supreme Court appointments – Dr. Shimon Agranat, president of the Haifa District Court – had already been unanimously approved by the cabinet at an earlier meeting. “A typical judge’s personality,” Rosen said of the candidate. “He came to us from America. He was born in a Jewish-Zionist home in Russia, he is steeped in Jewish culture.”
At this cabinet session Minister Rosen sought the appointment of Dr. Moshe Silberg, Lithuanian-born and an expert in Hebrew law, who had served briefly as a district court judge. “The justices, particularly the president, support this appointment,” Rosen said, making it clear who really pulled the strings. “These justices know his worth better than any of us, and I see no better person for this position.” Rosen undoubtedly expected this appointment to be approved swiftly, too. But one minister had different plans.
Bechor-Shalom Sheetrit was the only Mizrahi – i.e., Jew of Middle Eastern or North African descent – sitting at the cabinet table in the spartan conference room in the Jewish National Fund building in Tel Aviv, from where the country was run at the time. The farseeing Sheetrit was born in Tiberias, scion of a family whose origins lay in 19th-century Morocco. As a police officer, he had been in charge of the investigation of the assassination of Labor movement leader Haim Arlosoroff in 1933, and was afterward appointed a judge under the auspices of the British Mandate. Sheetrit was elected to the Knesset as a prominent member of the Sephardim and Oriental Communities party – an ethnic party that included descendants of Jews who fled Spain and Portugal after 1492 to Europe, North Africa and elsewhere (Sephardim), as well as “Eastern” Jews or Mizrahim, those of Middle Eastern origin. Even within his own movement there were some who viewed him as a collaborator with the establishment. He was the first minister of police, a position that Mapai, the ruling party and forerunner of Labor, designated for years to Jews of Middle Eastern and North African descent.
Sheetrit had already complained at previous cabinet meetings about the absence of representation of the Mizrahi communities on the Supreme Court – he was referring to those who, like him, were descended from pre-Zionist Sephardi families of the Old Yishuv in Palestine. However, these minor remarks had drawn little attention. This time, however, he blew his stack.
“I want to remind Minister Rosen that he is shutting the door in the face of an entire public,” he said. “I am claiming our right, the right of the Sephardi community, in regard to membership on the Supreme Court.” He proceeded to castigate Rosen’s choice: “With all respect to Dr. Silberg: You have cited proof that he is an expert in Hebrew law. If so, he can be made chief rabbi… I know Dr. Silberg better perhaps than Minister Rosen does. I’ve heard him as a judge and I’ve heard the opinion of the other lawyers about him, and there are many who can outdo him.”
Rosen didn’t conceal his anger: “It seems to me that the government can trust me… I considered my proposal well. I don’t know if an argument like this sprang up when the defense minister proposed Yigael Yadin as chief of staff… And in particular I am furious at the speech we’ve just heard from Mr. Sheetrit. The police minister’s contention is that Sephardim deserve this place [on the Supreme Court], and I do not accept that contention. In the whole Sephardi community there is no worthy candidate for this post, and I regret that.”
“That’s what you were told,” Sheetrit interjected.
“What do you mean, ‘I was told’?” the justice minister retorted, going on to mention Haifa District Court Judge Jacob Azoulai, Safed-born, who had served as a judge already in the Mandate period. “If people propose to me that we elevate Judge Azoulai to the level of a Supreme Court justice, my answer is that anyone who thinks that, doesn’t know what he’s talking about. I have a very high regard for the judge, I consider him a good and loyal person, but as a jurist his abilities are limited… Unfortunately, that is the situation today. I wanted to appoint one justice from among the judges who come from the Sephardi community, but that would simply stir laughter in the country… As for the assumption that Dr. Silberg, a person of high culture, possesses broad knowledge in language and is a very sharp jurist – no one doubts that.”
Rosen tried to persuade his colleague that he had actually tried to recruit a Sephardi for the Supreme Court, amid stretching the term “Sephardi” to its farthest limits. “There is one person,” he said, “Prof. Tedeschi, a professor at the university. I checked the possibilities and it turns out that it’s impossible to extract him.” Italian-born Guido (Gad) Tedeschi was an expert in civil law who had been dismissed from the University of Sienna under Benito Mussolini’s race laws, had immigrated to Mandatory Palestine where he pursued an academic career. (In another meeting Sheetrit said of him, “In our public no one ever heard of him.”)
At this point Ben-Gurion intervened and threw cold water on Sheetrit’s revolt. “In the matter of Sephardim,” he said, “if I were a Sephardi I would fight this idea, because it is wrongheaded. The Sephardim need to work with all their might to uproot this [approach] from within the Sephardi community. Will I check to see if there is a Pole on the Supreme Court bench? That interests me as much as last year’s snow. Because I am not Sephardi (or Ashkenazi). I am a Jew.”
But the prime minister also grasped the potential volatility of the situation. “We need to take into account,” he noted, “that if there will be no Sephardi in this important institution, it will leave a place for demagogy to foment complications in a large community, and the state does not want that.”
A few weeks later, the cabinet approved Silberg’s appointment.
• • •
Three years later, in August 1952, the cabinet again discussed appointments to the Supreme Court. In the meantime, riots had broken out in several new-immigrant transit camps, Rosen had been succeeded by Dov Yosef, and Yosef by Haim Cohn, who concurrently held the position of attorney general. Cohn, who would later serve on the Supreme Court himself, asked the cabinet to appoint three justices: Tel Aviv District Court Judge Dr. Yoel Sussman; Zvi Berinson, former director general of the Ministry of Labor and the legal adviser to the Histadrut federation of labor; and attorney and diplomat David Goitein. “This is a move initiated by my predecessor, Dov Yosef,” Cohn explained, adding that “after wearisome negotiations, agreement was received from all the justices of the Supreme Court.”
Once again Sheetrit was the killjoy. “I regret that I must always raise a particular question,” he said, and once more asked, “Is there no one among the judges from the Mizrahi and Sephardi communities who can be taken into account as a candidate for Supreme Court justice?”
This time he was backed by Ben-Gurion. “Is there no good Sephardi judge?” the prime minister asked. To which Sheetrit remarked bitterly that “no one is looking among them.” Dov Yosef, now the minister of commerce and industry, said, without mentioning a name: “There is one who is worthy of that [appointment], but he fled from Jerusalem during the siege [in the War of Independence].” “Is there no Sephardi scholar abroad whom we could invite?” Ben-Gurion asked. “We checked, we toiled and we didn’t find anyone,” Cohn replied. “Don’t believe it,” Finance Minister Levi Eshkol snapped ironically.
The police minister’s contention is that Sephardim deserve this place [on the Supreme Court], and I do not accept that contention. In the whole Sephardi community there is no worthy candidate for this post, and I regret that.Pinchas Rosen
“I remind you of a Sephardi lawyer who was a member of the [pre-state] National Council,” Sheetrit said to Cohn. He was referring to David Abulafia, born in Gallipoli, who was associated with the “supporters of [Revisionist Zionist leader Ze’ev] Jabotinsky in the Mizrahi communities.” “Mr. Abulafia has distanced himself from the law,” Yosef replied. To which Sheetrit shot back: “Were all the justices now serving in the Supreme Court so close to the law?” Yosef tried to placate him: “Over the years we will also have justices who are not of Ashkenazi origin. There are young judges now; in the course of time they will be good.”
“[The suggestion of] Abulafia’s candidacy is extremely fair, but it’s possible that there is a tendency only to appoint a particular type of judge,” Sheetrit said. To which Yosef responded, “He doesn’t know English law, he knows Turkish and Muslim law.” Sheetrit was outraged: “He endured all the tortures that our public endured. Shall you suddenly go search in foreign lands? That is shameful.”
Ben-Gurion put Sheetrit in his place. “You can’t complain that your community is being discriminated against,” he said – but nevertheless went on to suggest that consideration be given to appointing Abulafia or to searching for another Sephardi candidate. The meeting ended with the ministers approving the appointments of Sussman and Berinson, and deciding to look for another candidate – a Sephardi – as a justice.
But before the Knesset could approve the appointments the ultra-Orthodox parties left the coalition over their opposition to the drafting of women into the army. Ben-Gurion resigned and then formed a new government, naming Rosen justice minister again. In March 1953, Rosen reminded the cabinet about the appointments that had become bogged down. “The situation in the Supreme Court is intolerable,” he warned. “Dr. Zmoira is quite seriously ill, and the state of health of Rabbi Assaf is also unsatisfactory.” Rabbi Simha Assaf was in fact appointed to the Supreme Court as the representative of a minority: He was the first justice to hold the religious slot. Rosen again moved that Sussman, Berinson and Goitein be appointed.
A debate ensued over the candidates, with some ministers suggesting different names. And then Interior Minister Israel Rokach, who also had roots in the Old Yishuv and was from the General Zionists party, scratched the open wound. “I want to express a somewhat different opinion from the regular framework,” he said. “All my life I have tried to heal the rifts between the communities. The fact is that my aunt married a Sephardi. In Israel there are 50 percent from the Middle Eastern and North African communities.” At this point Ben-Gurion interjected: “Maybe not 50 percent, but a good-sized number.”
Rokach continued: “It will be years before there is no division between the communities. They are people who contributed not a little to the practice of law and to judgeship in this country. It is inconceivable that among nine Supreme Court justices there should not be at least one from the Mizrahi communities. There are some cases in which they are correct in their feeling that they are not being allowed to advance. Since the Supreme Court is one of the state’s greatest successes… now is the opportunity to appoint to it a member of the North African and Middle Eastern communities… I assume that it is possible to find a candidate.”
“All along I was one of those who shouted and got no response,” Sheetrit said, visibly moved. “Today Mr. Rokach has come to my aid.” “I was always at your side,” Ben-Gurion reminded him. “You were indeed among my supporters,” Sheetrit admitted, “but we did not find an attentive ear in the Ministry of Justice. It is inconceivable that we should shut the door to a Sephardi candidate.” He then lashed out at Rosen: “You are not proposing a Sephardi candidate only because you do not have a jurist with the approach you seek. That public should not be disdained, and a justice should be appointed from among them.” Sheetrit reminded the cabinet that “Judge Azoulai is serving in Haifa,” to which Foreign Minister Moshe Sharett remarked, “An excellent judge.”
Sheetrit proposed an additional Sephardi candidate, Eliyahu Mani, who was born in Hebron, studied law in England and was the president pro tempore of the Jerusalem District Court. He was also a scion of a family of judges that belonged to the local aristocracy and was bound by marriage to the Ashkenazi elite.
Mani himself was married to Zippora Gamzu, sister of the noted literary and theater critic Haim Gamzu. “He completed his studies in England, he has exactly the same certificate as every English barrister,” Sheetrit explained. “You have justices who completed [their studies] in Europe, why don’t you consider them… Do those [whose] names are Yedidya Levy or Eliyahu Mani bother you? They have a European legal education… I demand that there also be a Sephardi justice… The Torah was not given selectively only to Ashkenazim, it was given to all of us. They’ve proved their skill. If it happened that these Jews resided in backward countries, and there are not many people of European culture around them – shall we take revenge on them for this?”
Ben-Gurion again sided with the police minister.
If we propose another three justices and there will not be a Sephardi among them, it will be unfair, unstatesmanlike, un-Jewish. It is unimaginable.David Ben-Gurion
“We are still not one people,” he said. “If there will be a government without a Sephardi and without a woman, that will be a flaw. It is inconceivable that we should aggravate the differences. I in fact deny that all the Mizrahim are actually Sephardim, at any rate they are not Ashkenazim. They see that there is one supreme race. That constitutes a great danger, it creates room for demagogy and also for a feeling of discrimination. Everyone needs to be in all our institutions, in the army and in the courts. It’s not terrible if the person won’t be such a great scholar, this matter has to be taken into account… If we are now about to appoint a number of people to the Supreme Court… it will be a serious mistake if there is not one non-Ashkenazi among them. This is a form of national test. If there is only one person worthy of this, although there might be an even worthier person, [and] if the one who is worthy [i.e., the Sephardi] will be nisht geferlich [Yiddish: not dangerous] – install one who is not Ashkenazi. I pray that Israel’s third president will be a Yemeni, I am looking for a young Yemeni to prepare him for that. It is worthy for the people of Israel to have a Yemeni president. It will be an honor for the people.”
Rosen stuck to his guns. “Choosing Supreme Court justices is a very responsible matter,” he said. “The Supreme Court justices know the judges… they know the lawyers… and they have the best judgment, and all the suggestions I have put forward now are coming after discussion and after consultation with the justices of the Supreme Court… There is no one among the Sephardi jurists today of a sufficient level for the Supreme Court.” “That’s okay,” Ben-Gurion interjected.
Rosen persisted: “There is no such person, and if I propose to the Supreme Court justices one of those who you are apparently thinking about, they will say unanimously that it’s out of the question.” The prime minister remarked that “we do not necessarily have to heed them,” but Rosen asserted, “I will not recommend a judge only because he is Sephardi.”
Minister Without Portfolio Pinhas Lavon suggested a way out of the debacle: to increase the number of justices to 11. Rosen agreed. “And to propose also a non-Ashkenazi,” Ben-Gurion insisted. “To that I will not agree,” Rosen replied. The education minister, Ben-Zion Dinur, again suggested Judge Mani, who had been his student. “He possesses excellent skills,” he said of Mani. “He is aristocratic.”
The discussion then hit an impasse, and once again the cabinet postponed a decision on the Supreme Court appointments.
• • •
Two months later, Rosen again urged the ministers to confirm the appointments to the bench. He had by now come to terms with the fact that he would have to defuse the ethnic issue. “Everyone will certainly remember that we discussed this question a few months ago, and suddenly, and surprisingly, the question of appointing a Sephardi justice came up,” he said. “In the meantime, I have dealt a great deal with this issue.” But his approach hadn’t changed: “Unfortunately, I have to inform the cabinet that I do not now see a candidate among the Sephardim.”
“The people of Israel don’t need only Ashkenazim,” Ben-Gurion protested, “even if the Ashkenazim aren’t Ashkenazim in their consciousness, they are Jews. No one here, apart from Sheetrit, will say that he is not Ashkenazi, but this is a subjective thing… If we propose another three justices and there will not be a Sephardi among them, it will be unfair, unstatesmanlike, un-Jewish. It is unimaginable. It is a badge of shame that anyone who is not Ashkenazi is [considered] a boor who cannot be taken into account… It is inconceivable that in a nation of 1.5 million people, with at the very least 600,000 non-Ashkenazim, it is impossible to find even one who will sit with another eight Ashkenazim… If the members of the Supreme Court think so, their sense of Jewishness is flawed.”
“In the opinion of the justice minister, that is out of the question,” Sheetrit lamented. “First because there’s the cream of the crop of Judaism – Ashkenazi Judaism – and all the rest are disqualified… How can you disqualify an entire public and stigmatize them… I come into contact with the different communities every week, and they tell me, ‘No one talks to us, we are not taken into account.’”
In the end, Ben-Gurion told the justice minister that until he came up with a Sephardi candidate for the court, he would not vote in favor of any candidate. Rosen was compelled to withdraw his proposal again.
The Judicial Appointments Committee was established that year, 1953. It consisted of three Supreme Court justices, two representatives of the Israel Bar Association, two MKs and two cabinet ministers. The committee was headed by the justice minister, and Sheetrit joined him later. In addition to Sussman, Berinson and Goitein, the panel appointed Moshe Landau. There were now nine justices. Goitein died prematurely but the three colleagues who were appointed with him remained on the bench for decades and in large measure shaped its character.
• • •
In November 1958, a few months before the outbreak in Haifa of the so-called Wadi Salib revolt, the first uprising of the Mizrahi community in the country, the cabinet met to discuss Rosen’s proposal to expand the Supreme Court to 10 justices because of the workload. “I will ask an immodest question,” Interior Minister Israel Bar-Yehuda, from the Labor-affiliated Ahdut Ha’avoda party, addressed Rosen: “Is your proposal related to a particular candidate who is known in advance? As Supreme Court President [Yitzhak] Olshan told me, almost all the justices are demanding that candidate.” Bar-Yehuda didn’t specify any names, but he was referring to the former justice minister and current attorney general: Haim Cohn.
Ben-Gurion spotted an opportunity: “I am not against so-and-so, but only on condition that the 10th [justice] will not be an Ashkenazi. Nine [justices] also don’t need to be only Ashkenazim. It won't be so terrible if the 10th will not be such a great scholar and will not know all the verdicts in English courts. Why should we create an inferiority complex among hundreds of thousands of people… It will be scandalous if all 10 justices of the Supreme Court are Ashkenazim.”
“In my eyes it is unethical for us to choose someone in order to satisfy a particular community,” Rosen fumed. Ben-Gurion concluded the debate by railing at him: “I suggest postponing the matter until next week. I see that you have a flawed approach, Mr. Rosen. There is an important rationale in what Sheetrit is saying. We truly need to get to know the nation. Anyone who doesn’t live among these population groups and is interested only in the matter of the law, lacks something.”
Justice Shneor Zalman Cheshin died in December 1959, and was succeeded by Haim Cohn on the bench. In January of that year Ben-Gurion himself had tried to move Mani’s candidacy forward, but this time it was the candidate himself who refused to be appointed solely on the basis of his ethnic origin.
I can’t ignore the fact there is in the Supreme Court the phenomenon of a cohesive group, which finds it difficult to accept the ‘other’ into the family. The most difficult blow is that they set a quota of one Mizrahi justice.Moshe Shahal
In the summer of 1959, the country was in an uproar. “The Wadi Salib incidents have exposed the ethnic problem in Israel,” Raphael Bashan wrote in the newspaper Maariv. “Dams of hidden anger and concealed discrimination have burst. Many tongues said for the first time what until then had the preserve of the heart of hearts.”
The uprising in Haifa left the cabinet ministers shocked and hurt at what they saw as the ingratitude of the Sephardi and Mizrahi communities. Some were convinced that then opposition leader Menachem Begin was orchestrating the riots from behind the scenes; one minister even suggested using the Shin Bet security service to track down the leaders of the revolt. “Until the election comes around this country will burn,” Labor Minister Mordechai Namir declared apocalyptically in August 1959, when the commission of inquiry that investigated the events in Wadi Salib presented its report to the government.
Sheetrit suggested that his colleagues draw conclusions from those events: “It will be good for the government to take this to heart.” For his part, Religious Affairs Minister Shmuel Moshe Toledano, a Tiberias-born Sephardi, disagreed: “This is not a matter for the government; it is a matter for society.” Sheetrit: “Perhaps you, the religious affairs minister, have heard me fighting vigorously and stubbornly to get a representative of the Mizrahi communities.” Commerce and Industry Minister Pinhas Sapir dredged up something that had been forgotten: “For example, a justice of the Supreme Court.” “Do we not have need of a justice,” Sheetrit added, “who will understand the spirit of that community?” “For that position, you will not take someone from North Africa,” declared Welfare Minister Peretz Naftali.
And indeed, 55 years would pass before a first justice of North African origin was appointed to the Supreme Court: Menachem Mazuz.
• • •
In 1962, three years after the Wadi Salib revolt, the first Sephardi justice was finally appointed to the Supreme Court: Eliyahu Mani, who was born in Hebron to a family of Sephardi origin, had agreed to the post. “This time the ethnic aspect of the choice was not underscored,” Haaretz wrote. The reporter, Eli Eyal, described Mani as having “Russian facial features, a sharp and somewhat elongated nose and gray hair.”
There were some who did not see Mani’s appointment as cause for pride. “I was a young fellow when Mani was appointed to the Supreme Court, and I remember how badly I felt with the appointment,” former Justice Minister Moshe Nissim says today. “Already then I was convinced that the composition of the Supreme Court must be determined according to qualifications and suitability, not origin. It was called the ‘Sephardi chair,’ like there was a chair for a woman and a chair for someone religious. It’s a phenomenon I couldn’t stand, and I told myself I would correct it if the opportunity should arise.”
In 1977, Mani retired at the mandatory age of 70, Miriam Ben-Porat became the first woman to be appointed to the bench and Mapai was ousted from power. The new prime minister, Begin, was also troubled by the question of representation in the Supreme Court, though not necessarily of the non-Ashkenazi communities whose votes had helped him win the election.
“He would call me every week and say, ‘Aharon, we need an Arab justice on the Supreme Court,’” recalls Prof. Aharon Barak, who served as attorney general and afterward Supreme Court justice during Begin’s tenure. The vision of the premier and leader of Herut (afterward Likud) was not fulfilled until 2003, when Salim Joubran was appointed to the bench.
Mani’s place in the so-called Sephardi chair was taken by David Bechor, a Haifa District Court judge. Bechor was born in Jerusalem, but his family moved to Egypt and returned after two decades. “A practical justice with common sense, not one of the philosophical prattlers,” one former Supreme Court justice said of him.
Bechor was 68 at the time of his appointment, on the verge of retirement. The pattern of appointing a non-Ashkenazi justice in the waning stage of his career, as a sort of consolation prize, would repeat itself. Despite his short term on the bench, Bechor was among those who wrote important rulings: in the 1979 Elon Moreh case, which demanded the evacuation of a settlement built on private land expropriated from Palestinians, and a judgment holding that forcing sexual relations in a marriage constitutes rape.
In 1980, Begin appointed Moshe Nissim justice minister. Nissim, whose Iraqi-born father Yitzhak was the first Sephardi chief rabbi of Israel, was the first Mizrahi to hold the justice portfolio. During his term three non-Ashkenazi justices were appointed to the Supreme Court, all for relatively brief periods. “All three were superb appointments, irrespective of their origin, and they were not chosen because I am a Mizrahi, heaven forbid,” Nissim says now. “I was against the ‘chairs system’ and I never engaged in ethnic considerations.”
In 1981, Jerusalem District Court Judge Moshe Cohen, who was born in Greece and whose family immigrated to Israel when he was an infant, was appointed to the Supreme Court. He died a few months later, and the next person to occupy the Mizrahi chair was the president of the Jerusalem District Court, Safed-born Judge Yehuda Cohen, whose family moved to Lebanon when he was a boy and subsequently returned to Israel. He too served on the bench for less than two years, and in 1984 was succeeded by a Tel Aviv District Court judge, Avraham Halima, Iraqi-born and one of Israel’s greatest experts on land laws. Halima was the first immigrant from an Arab country and the first former resident of a transit camp to breathe the rarefied air of the Supreme Court. “He was modest to an extreme, coming to the court by bus,” one of his colleagues said. “He was fluent in Arabic and Turkish and an absolute wizard in the real estate realm.”
Following Halima’s retirement, in 1989, the court was again left without Mizrahi representation. At the modest farewell ceremony the justices held for him, Halima said he opposed appointments to the Supreme Court based on ethnic considerations. Two years later, his chair was contested by a number of jurists, all of whom were appointed for a trial period: Michael Ben-Yair, Eliahu Mazza, Shaul Aloni and Yaacov Kedmi. The justice minister at the time was Dan Meridor, the president of the Supreme Court was Meir Shamgar and Nissim was a member of the Judicial Appointments Committee.
“The names of four Sephardim were submitted,” Nissim recalls. “I remonstrated with them, ‘Isn’t this shameful for us? Because a Sephardi has retired, we need a Sephardi now?’ I was furious. My opinion was not accepted. They chose Judge Mazza.”
“I am not a member of the Mizrahi communities,” Mazza himself says. “It’s true that my mother was born in Jaffa to a well-known family of Sephardi origin named Matalon, but my father was born in Jerusalem and his parents came from Greece, which is Sephardim and not exactly Mizrahim.” The former justice, considered one of the all-time leading experts in criminal law on the Supreme Court, adds that “for me, the whole matter of representation of what’s lacking is a historical glitch, which corrects itself in the fullness of time. Ask my grandchildren whether they are Ashkenazim or Sephardim – they don’t know.”
Two years after Mazza retired, the justices were joined by the head of the Israel Police Investigations Department and former director of the courts, Yaakov Kedmi, from an old Israeli family. His original name was Mizrahi. “My father changed the name, what can I do,” he told the newspaper Yedioth Ahronoth in an interview in 2000, marking his retirement. “There was no attempt here to hide the origin, which I’m proud of.” Kedmi headed the state commission of inquiry that found that there was no organized kidnapping of Yemenite children in Israel’s early years.
“The question of representation on the Supreme Court was something that perturbed me very much,” says former minister Moshe Shahal, a member of the Judicial Appointments Committee from 1984 to 1990. “I never rode the ethnic horse and I didn’t need to, but I can’t ignore the fact there is in the Supreme Court the phenomenon of a cohesive group, which finds it difficult to accept the ‘other’ into the family. The most difficult blow is that they set a quota of one Mizrahi justice. Regrettably, that barrier exists and it will take time to correct.”
One day in 2001, Tel Aviv District Court Judge Edmond Levy asked to meet with the justice minister, Meir Sheetrit. Iraqi-born Levy, who in the distant past had been acting mayor of Ramle on behalf of Likud, was also serving then as a justice under a temporary appointment. He headed the panel that convicted Yigal Amir, the assassin of Prime Minister Yitzhak Rabin, was involved in other highly publicized cases and was considered an industrious judge and an expert in criminal law.
The whole matter of representation of what’s lacking is a historical glitch, which corrects itself in the fullness of time. Ask my grandchildren whether they are Ashkenazim or Sephardim – they don’t know.Eliahu Mazza
Shortly before meeting Levy, Sheetrit received the list of candidates for judgeships at all levels, and noticed something odd: “There was hardly any candidate from outlying towns, from the Negev, from the Galilee or from the Mizrahi communities,” he recalls. “I asked my aide why this was so, and he replied, ‘They feel that they have no chance.’ That led me to give an interview to the journal of the Bar Association and to say that I wanted judges to be appointed according to qualifications and not according to connections. I wanted to broadcast a message that everything was open. And that helped. Check and see that of the 150 judges I appointed, many were from the Mizrahi communities or were Arabs.”
Sheetrit relates now that “Levy told me at the meeting that he had read the interview and agreed with every word. And then he added that he wanted to give up his post so that I could appoint someone else to the Supreme Court. I asked him why and he replied, ‘Because I have been a temporary justice for half a year already and I see no chance of getting a permanent appointment.’ ‘Edmond,’ I told him, ‘I don’t know you. Let me check.’ I did that and received amazing feedback. I was told that he was a superb judge, extremely diligent.”
Sheetrit then decided to raise the issue with Supreme Court President Barak. “I told him that I wanted to appoint Levy to the court on a permanent basis. He replied, ‘The justices don’t care so much for the idea.’ I asked him why, noting that ‘the court appointed him an acting justice, isn’t he good?’ ‘We need to talk,’ Barak said.”
Sheetrit, who now realized that those on the bench were standing between Levy and the permanent appointment, asked Barak to convene all the justices in the Supreme Court conference room.
“They spoke about the need to appoint justices of the highest level, that the level must not be lowered,” Sheetrit recalls. “When they had finished speaking, I asked them, ‘Do you want us to talk totally frankly?’ They said they did. I won’t elaborate on what exactly I said, but it was tough talk, also regarding Levy. The next morning Barak called me in and said, ‘You turned the tide.’” The minister and the president of the court agreed to appoint Levy as a justice along with Judge Ayala Procaccia, in August 2001. A friend of Levy’s said that he burst into tears at the news.
Aharon Barak remembers events differently. “I wanted Levy on the Supreme Court,” he says now. “In that period we were looking for a criminal law expert, and he fit the bill. He was my intellectual friend in the courtroom, the closest to my worldview. More of an activist than me, a super-activist. There’s a judgment he handed down that I would not dared to have written.” Another justice who served at the time of Levy’s appointment says that his colleagues’ reservations stemmed from his past as a political person and from the fact that criminal law was his sole field of expertise.
This ostensible outsider delivered some of the most original and ground-breaking judgments in the history of the Supreme Court. He stood out as a fighter against governmental corruption, tripling the prison term of former minister Shlomo Benizri who was convicted on bribery charges, and together with Supreme Court President Dorit Beinisch objected to the disgraceful plea bargain struck with Moshe Katsav, the rapist president of Israel. “So many failures by public figures are in my eyes symptoms of an illness which poses a danger to the State of Israel that is no less serious than any other security-existential danger,” Levy wrote in one of his verdicts.
Despite espousing right-wing views – he was the lone objector on the court to the plan to disengage from the Gaza Strip – Levy led the minority opinion also in an appeal against the amendment to the Citizenship Law, which bars family reunification between Palestinians and Arab citizens of Israel. He was sharply critical of his fellow justices for adopting the government’s position, accusing them of perpetuating the formula according to which realization of the rights of the Arabs means a danger to Israel.
Edmond Levy was the first justice whose judgments displayed a clear-cut social consciousness. When then-Finance Minister Benjamin Netanyahu slashed National Insurance allowances, Levy was the only one among seven on the bench who was convinced that the cuts should be cancelled because they undermined the appellants’ constitutional right to a dignified existence. By the same token, he overturned an arrangement that tied foreign workers to specific employers, writing that this “nullified the autonomy of people’s free will.”
Levy’s background is perhaps the reason for the trenchant judgment he handed down prohibiting the separation of Ashkenazi and Mizrahi girls at a school in the West Bank settlement of Immanuel a decade ago, as well as for his fierce remarks against the universities’ decision to cancel the admission process based on a prospective students’ aggregate score (that is, based on a number of factors, rather than solely on the grade received in the psychometric exam): “The aggregate system is intended to help Ahmed from Tira, Levy from Yokne’am and Cohen from Afikim [referring to the Arab population and Jews from peripheral towns] to be admitted,” he said. “You are taking a whole population and deciding that they will be hewers of wood and drawers of water. Why should there be only one Mazuz, and even then his origins are mentioned, why should there not be many Mazuzes?”
Levy was considered an odd bird on the Supreme Court. He ate lunch alone and avoided rubbing elbows with the other justices at social events. When he retired, he declined the traditional farewell party. Instead, he invited to his home three justices with whom he had become friends: Beinisch, Edna Arbel and Esther Hayut. Levy’s otherness was evident also in the human landscape around him.
“I knocked on the door of his house, told him my life story and he accepted me, even though I had graduated from a college,” says attorney Guy Bossi, from an impoverished family in Ashkelon, who clerked under Levy. “His legal aide was a Muslim Arab from Nazareth and the other person clerking there was a woman who graduated from Bar-Ilan University.”
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Levy retired in 2011. His place in the non-Ashkenazi chair was taken by Uri Shoham, also Iraqi-born, a former military advocate general in the Israel Defense Forces who had served on the Tel Aviv District Court, who became the most heavily guarded judge in the country after sentencing the heads of murderous crime organizations to lengthy prison terms. In 2014, with the backing of Justice Minister Tzipi Livni, Shoham was joined on the bench by former attorney general Menachem Mazuz, who was born in Tunis and grew up in the Negev town of Netivot. Livni chose Mazuz for his legal qualifications and his liberal viewpoint, but also used the appointment to show that the Supreme Court is not only the preserve of the elites. Mazuz, says a person who was a member of the Judicial Appointments Committee at the time, “really didn’t like that label.”
Three years later, after a lengthy struggle by the chairman of the Bar Association, Efraim Nave, and Justice Minister Ayelet Shaked, Yosef Elron (originally Alfariah), the son of immigrants from Iraq who was born in a Haifa transit camp, was appointed to the bench. Shaked wanted above all a conservative jurist, but Elron’s origins also gave him an important advantage from her viewpoint. “It’s not by chance that two Iraqis, Nave and Shaked, appointed an Iraqi to the Supreme Court,” says a person close to the former minister.
Elron’s appointment made history of a minor sort. For the first time, in the 10 months between October 2017 and August 2018, there were three Mizrahi justices on the Supreme Court. On one occasion, Shoham, Elron and Mazuz found themselves comprising a panel. One of them remarked to the others, “This is the first time a panel of justices in the Supreme Court has been completely Mizrahi.”
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All told, out of 73 justices who received a permanent appointment to the Supreme Court since its establishment, there have been five whose origins are in Arab countries – and not one woman of Mizrahi descent.
“It’s not true that Supreme Court justices didn’t want Mizrahim or didn’t look for candidates like that,” Aharon Barak says today. “My approach and that of the justices was that the representation of Mizrahim, Arabs or women would not come at the expense of [the court’s professional] level. I think the problem of Ashkenazim and Mizrahim is gradually disappearing, and unfortunately there are some who are still trying to preserve it. Let there be 15 Sephardi justices as far as I am concerned.”
Beinisch, who succeeded Barak as president of the Supreme Court, is convinced that the historic correction is just around the corner. “The representation on the bench reflects social developments, and today those who were thought to be lone figures are among the finest in the profession,” she says. “Origin must not be a barrier. In my work I met excellent young women and men from the outlying towns, and I have no doubt that their road to the Supreme Court is paved.”
In another 20 years, will we see a different court?
Beinisch: “Long before that.”
Mazuz, who recently announced his early retirement, is expected to step down in April. When that happens, the Supreme Court will again have one justice of Mizrahi origin – just as in most of the period since the state was established.