Israel – The Interdependent Third Branch

Posturing and gamesmanship in Israeli judicial appointments

In October, I pointed out the childish posturing of Senate Democrats, who boycotted the Judiciary Committee’s confirmation vote for Justice Amy Coney Barrett and sent cardboard cutouts in their place. The stunt made a mockery of one of the Senate’s core responsibilities, and I suspect that it played at least a small role in the Democrats’ poor showing in November’s legislative races.

Unfortunately, such spectacles are not limited to the United States. Earlier this week, three right-leaning Israeli lawmakers boycotted the meeting of that country’s Judicial Appointments Committee, evidently believing that their absence would prevent a quorum and preclude the Committee from appointing two Israeli Arabs to judicial positions.

They were wrong. The law allows the committee to meet with any number of members present, as long as there are at least seven members on the committee roster. Because the boycotting politicians never resigned from the committee, the committee had the requisite number of members to move forward even in their absence. Ultimately, the committee appointed 61 judges, include one of the Arab candidates.

If there are good reasons to oppose a judicial nominee, by all means politicians should vote to oppose. But preventing the wheels of government from operating purely for partisan gain harms the judiciary and insults the public.

JOTWELL review of Reichman et al. on technology and the regulation of judges

I am delighted to have a new essay up on JOTWELL, reviewing Amnon Reichman, Yair Sagy, and Shlomi Balaban’s recent article, From a Panacea to a Panopticon: The Use and Misuse of Technology in the Regulation of Judges. It’s a terrific look at the Israeli’s courts’ development of case management technology, and the impact of that technology on its judges, all told through a subtle organizational lens. A snippet from the start of the review:

Court systems are large, complex, diverse, and resource-dependent organizations, a condition that shapes their character and behavior. It is surprising, then, how often court leaders fail to account for the organizational perspective in their decisionmaking. Amnon Reichman, Yair Sagy, and Shlomi Balaban illustrate this phenomenon, showing how the visionaries behind Legal-Net, Israel’s cloud-based judicial management system, were plagued by their failure to place its development in a broader organizational context.

Reichman and his colleagues trace the Israeli courts’ development of Legal-Net over two decades. Their research reveals a court system brimming with confidence that technology could be used to regulate judicial behavior, but insufficiently appreciative of the challenges of technological integration. The first version of Legal-Net was a flop: complicated and ambitious, it was a poor fit with existing court culture. A subsequent version better accounted for the court system’s unique character, but court leaders failed to anticipate how significantly its implementation would affect that character. In fact, the authors explain, the introduction of Legal-Net “heralded a tectonic shift in the judiciary’s work culture and work patterns,” as judges tailored their behavior toward the system’s incentives and away from their traditional roles. Today, it seems, the Israeli courts work for Legal-Net as much as Legal-Net works for them.

Please read the whole thing!

Israeli Supreme Court Justice receives death threat

Israeli Supreme Court Justice Anat Baron has been assigned additional security detail after receiving a death threat in the mail over the weekend. The letter apparently made veiled reference to Justice Baron’s son, who was killed by a suicide bomber in 2003.

This is grotesque and illegal behavior, and was immediately condemned by Israeli leaders including Prime Minister Binyamin Netanyahu. But Netanyahu himself has been accused of inciting this type of behavior, given his ongoing verbal attacks on the judiciary as he fights for his political life. The parallels to President Trump’s assaults on American judges are hard to ignore.

To be clear, neither Netanyahu nor Trump can possibly be said to wish physical harm to judges with whom they disagree. But rhetoric matters, and when politicians of any stripe wage war on the judiciary as part of their partisan battle plan, they do bear some responsibility for the collateral damage, both to judges’ reputations or (worse) to their physical well-being.

Israel’s High Court opens to cameras

The Times of Israel has a wonderful long-form piece on the decision of Israel’s High Court of Justice to open its proceedings to videocameras, just in time for a contentious political and legal fight over the proposed creation of a new unity government. The story explains how the High Court — facing charges that it had become increasingly political and therefore untrustworthy — decided to open its deliberations to public view. A snippet:

The fears of contamination and spectacle have been overtaken by growing frustration that the court’s story was being told by others, by right-wing critics and left-wing moralists, that no one was left in the public debate to defend the court on its own terms, to argue its deliberations were earnest and exacting and its concerns legal rather than political.

And so Chief Justice Esther Hayut embarked on a “pilot” project in mid-April to broadcast many of the court’s hearings and deliberations to the outside world — just in time for the most contentious and politically significant hearings in the nation’s recent history.

The result has been a revelation. For the first time, Israelis could watch the proceedings in their entirety. And according to the Government Press Office that managed the broadcast, about a million Israelis watched the deliberations on Sunday and Monday — 130,000 just through the GPO servers, and the rest via the live broadcasts on all three major television channels and multiple online news outlets.

They watched the justices push back against all sides, saw their frustration with the sloppiness and grandstanding of the left-wing petitioners and their pinpoint questions to the representatives of the right that forced unexpected compromises.

Again and again, the justices interrupted attorneys’ speeches prepared not for the courtrooms but for the cameras.

Sunlight is the best disinfectant, for the viewer as much as the viewed.

How coronavirus is affecting the courts — April 3 update

The novel coronavirus is affecting societies worldwide, and judicial systems are no exception. Here is a selection of the latest news and profile stories on how courts are dealing with the epidemic:

What is the state of Israel’s courts in the time of coronavirus? (Jerusalem Post)

Uncertainty looms over Supreme Court as lower courts transition to teleconferencing (Washington Free Beacon)

Federal Judge’s Sentencing acknowledges COVID-19 (Forbes) (a story about the sentencing of certain defendants in the “Varsity Blues” college admissions scandal)

COVID-19 and Online Dispute Resolution: It’s a Whole New World Out There (op-ed for the Connecticut Law Tribune)

7th Circuit suspends most paper copies to slow spread of COVID-19 (Chicago Daily Law Bulletin)

Previous roundup coverage here. And check the home page for additional discussion of coronavirus and the courts.

Bell on the embarrassment at the ICC

Professor Avi Bell points out the embarrassing treatment of Israel at the International Criminal Court, where due process, transparency, and moral legitimacy are nowhere to be found. Bell argues that Israel’s only reasonable response is to stop treating the ICC like a legitimate legal or juridical organization. Previously, Israel had determined to cooperate with the ICC in order to assure that its side of the story was told. But given the ICC’s absurd and open hostility to Israel, I am inclined to agree with Professor Bell’s assessment.

Israel cracks down on ex parte communications between judges and prosecutors

In the wake of a high-profile scandal in which prosecutors in a major corruption case exchanged private text messages with a judge about its planned strategy, Israel’s Supreme Court has announced new rules to prevent further one-sided communications.

Under the new rules all contact between the judge and the investigative and prosecuting bodies will only be made during court hearings. Aside from in the courtroom, no direct requests are to be made of judges, but rather are to be filled through the court administration.

This makes a great deal of sense, and gives the court system a chance to rebuild whatever public legitimacy it has lost from the scandal.

Israel’s Supreme Court hires media consultant

The Israeli Supreme Court has hired a media consultant for the first time. The consultant’s role will include helping Chief Justice Esther Hayut coordinate the work of various spokespeople throughout the court system.

Some in Israel are painting this as a gimmick to improve the legitimacy of the court system through public relations. But media adviser is a pretty common role in the United States, where many state and local courts have public information officers. It strikes me as an entirely reasonable move in a country with a sophisticated media and fast-moving news cycle.

Former Israeli Supreme Court President defends private meetings with Prime Minister

Miriam Naor, the former President of Israel’s Supreme Court, recently gave a rare public interview in which she defended her private meetings with Prime Minister Benjamin Netanyahu while serving on the Court. Naor maintained that she was appropriately discussing major legislation that would effect judicial branch operations. Critics argue that such meetings could compromise the integrity of a court that could eventually hear criminal charges against the Prime Minister.

This is a delicate thing. As I have noted regularly on this blog, most courts worldwide depend significantly on the other branches of their respective governments for resources and enabling legislation. It is both pragmatic and smart for the administrative head of a court system to share judicial concerns and perspectives with lawmakers. But closed-door meetings invite the perception of an improper, closer-then-arms-length relationship between the branches and their representatives.