1.
Effi Naveh is part of the system. The system is a legal oligarchy, the rule of a minority group that has taken for itself powers unprecedented in a western democracy, and through them, rules us. And not only does it hold authority beyond the bounds of the judiciary; it also appoints itself. And not only does it hold exceptional powers and have the ability to appoint itself, it cannot be supervised. There is no one to watch over the watchmen. Any criticism of the group is decried as "an attack on rule of law." And not only does the group have unprecedented powers and self-appointment, and is not subject to oversight, it can also cancel out the letter of a law as it was enacted by elected public officials. It can do so by interpreting the "spirit of the law," according to which a judge can force the legislation to do figure eights in the air and wind up the opposite of what the legislator intended.
Judges interpret "the spirit of the law" based on their own private world: their values, their political and cultural worldviews. But because of the aura that hangs over the legal process, the judges who hand down verdicts are treated differently than media and academic figures. When it comes to the latter, we know that journalists or researchers cannot help but express their political and culture worldviews, especially in the fields of humanities and social sciences. We shouldn't treat judges any differently. As long as they do not restrict themselves to the letter of the law, but rather invent new laws through interpretation, they cannot escape their own prejudices and perspectives, and these are expressed in their rulings. Astonishingly, judges are human beings.
2.
This system puts too much power in the hands of the judges. And as with all excessive power, "sin crouches at the door and desires to have them," including the possibility of corruption. Naveh is not the first person in the legal system to go bad. The Judicial Selection Committee - an mysterious institution that for years has worked to uphold the power of the legal oligarchy - includes three judges, two representatives of the Israel Bar Association, and four politicians - including two ministers, one of whom is the justice minister, who chairs the committee. Five jurists vs. four elected officials. Over the years, the lawyers' guild functioned according to desire of the Supreme Court justices, helping them preserve the legal oligarchy's power. Otherwise, it's difficult to understand how lawyers could have been allowed to appoint judges.
Supreme Court Chief Justice Esther Hayut expressed this in a letter she sent to former chief justices last November. She praised as miraculous the years of cooperation between the IBA and the judges. According to Hayut, it was "cooperation between two entities that are guided first and foremost by professional considerations in choosing the highest-quality candidates for the position [of judge]."
It's always strictly "professional considerations," because we're talking about the angels of the Supreme Court. Not only are they geniuses who know better than us mortals what is good for the country and what values we should all adopt, they also never lust after power and control, and would never work out deals to promote a specific judge who might, from the side, appear unworthy of sitting on the bench, but who is close with the legal oligarchy, a close family member, or close to it in terms of his politics and values. As if we've forgotten how relatives of certain well-known judges were promoted - it wasn't because of their unusual abilities.
3.
Effi Naveh was exposed with a bang because he was drunk with power - power given to him because of the rotten system. But it is not impossible that unworthy judges have been appointed going back years. The field of law is no different from politics, academia, or the media - some people are smarter than others. The problem is that the court has too much power and has upset the balance between the three branches of government. Judges can get drunk on power, too. As of now, the Supreme Court is operating not only as the judicial branch, but also as the legislative and executive branches.
One current example of the Supreme Court's power high is the acceptance of petitions to the High Court of Justice against the nation-state law, which is one of Israel's basic laws. Thus far, the judges - as part of the "judicial revolution" - have ruled that a basic law has the status of a super-law, part of the constitution that is in the making. That is how "regular" laws, which according to the justices' interpretation contradicted existing basic laws, have been rejected. Now the nation-state law doesn't square with their ideological views, and we are starting to hear opinions that perhaps a basic law can be rejected if it goes against the "underlying principles of the system." That's a vague statement, and it's no coincidence. Because who determines the "principles of the system"? The judges, of course. Sin indeed crouches at their door.
It doesn't end there. Recently, we learned that the courts collect information on citizens who have expressed criticism of judges, claiming that the protections for free speech "are not absolute." Could we imagine what the court would say if any other entity - one of the government ministries, let's say - keeping tabs on people who have a negative opinion of it?
Getting drunk on power is demonstrated in a number of ways. With Effi Naveh, it was in a particularly ugly manner. In my opinion, stealing the freedom of Israel's citizens to decide their own fate - in doing so, the Supreme Court attacks the authority of elected officials and intervenes in political matters that are none of its business but should be decided in public forums or at the voting booth - is much worse than what Naveh is accused of (trading influence for sexual favors.) The rottenness of the system demands that lawyers no longer be represented on the Judicial Selection Committee, which must publish protocols of its discussions to let sunshine disinfect the corruption.
A Labor Party figure, a well-known personality in legal circles, once said that the criticism of the Supreme Court and the Judicial Selection Committee was correct. "So why don't politicians take action on the situation?" he was asked. "Because everyone is afraid to; everyone has a skeleton in the closet, and the system knows how to cook up cases." That is what it did to Yaakov Naaman, for example, when he was appointed justice minister and the system didn't want him to be. Shimon Shabas, director-general of the Prime Minister's Office for the late Yitzhak Rabin, testified to that on television: "The attorney general (then Michael Ben Yair), told me, for my ears only, 'I'm going to screw the fascist.'" And there are plenty of other examples.
4.
Justice Minister Ayelet Shaked did what judges have done for years - she struck an alliance with the bar association on the Judicial Selection Committee to promote heterogeneity among judges. It's a shame she didn't start out by challenging the system and the method, like she recently did with Deputy Attorney General Dina Silber, declaring she would not allow Silber to appear in the Knesset. Instead, Shaked decided to change things a little from inside. If she hadn't gotten the IBA on her side, the Supreme Court justices would have - and just kept appointing whomever they wanted. That makes no difference to the devotes of the totalitarian system, MKs like Shelly Yachimovich, Merav Michaeli, and Stav Shafir, who attacked Shaked. Improving the court and strengthening the public's faith in it was not important to them, only the desire to grab imaginary political capital.
With timing that is not surprising, even Prof. Mordechai Kremnitzer, whom former Chief Justice Aharon Barak called a "righteous among the nations," has concluded that the best way to close the loophole is to make the chief justice head of the committee. That is how the judges exert control over us, without any oversight. Add Kremnitzer's pal, Hebrew University of Jerusalem Rector Barak Medina, who last week called on the Supreme Court to obligate the Knesset to vote no-confidence in itself, lest there be grounds for a "civil war," and you get (un)enlightened totalitarianism.
