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A lethal virus

If confirmed, the sex for judgeships scandal will be a devastating blow to the legitimacy of an already weakened system

Leaks from the police investigation into the sex for judgeship scandal, if corroborated, point to the sabotage of a critical national institution. If the judicial selection process proves to be infected by corrupt deals, and especially if the phenomenon turns out to be widespread, the possibility to rely on clear rules of the game and decision-making processes in the conduct of our national debates will erode and vanish.

This is a critical moment in an ongoing campaign, one that has been gaining strength, against the legitimacy of the judiciary in particular, and of the rule of law in general. The possible assault on the system’s integrity, whose details have not yet been revealed, opens up a third front, one that is liable to be decisive, in the battle for public trust in the judicial system.

The first front, where this skirmish has been going on for a generation now, is the conflict between the judicial and legislative branches. About a third of the Israeli public believes that the courts have overreached the boundaries of their appropriate role and have assumed the right to rule on issues that are essentially political in nature. The argument is that this judicial activism has led to increased interference with Knesset legislation and government decisions. Nevertheless, a majority of the Israeli public still trust the system. For them, the reality is not that the courts have deviated from their traditional role, but rather that the situation in Israel has changed: the culture war, the transition from consensual democracy to democracy in crisis, and the Knesset’s inability to reach decisions about key issues have forced the court to step in as the responsible adult.

Whatever the explanation, as a result of the Supreme Court’s involvement in the controversial issues of our time, over the last generation public confidence in that body has dropped from 80% to 55%, only slightly more than a majority. And this is before the other two fronts have opened up.

The second front, which has heated up in the last year, is the campaign waged by some of Prime Minister Netanyahu’s supporters, who allege that the law-enforcement agencies are attempting what amounts to a coup d’état. As they see it, the police, the State Prosecutor’s Office, and perhaps also, in the near future, the Attorney General, have mobilized to overturn the voters’ decision at the polls. It is true that the Prime Minister himself, at the opening of his recent television appearance insisted that “the legal system is one of the foundations of Israeli democracy” and, echoing Menachem Begin’s famous remark, added that “there are justices in Jerusalem. So it has been and so it will be.” But the storm winds that some of his supporters are directing against the system are threatening. We may regret in particular the scandalous remark by the head of the coalition, MK Amsalem, that there are millions who will take to the street if ….

We do not know whether the Prime Minister will be indicted or not, but it is clear that the person who bears responsibility for the rule of law in Israel, the Attorney General, will be found guilty by roughly half of the country, no matter what he does. If he decides to file an indictment, he will be assailed for joining the conspiracy against Netanyahu; if he decides not to file serious charges, he will be attacked for shielding the Prime Minister and betraying the rule of law. This tragic outcome, with the undermining of public trust in the system, seems to be inevitable.

Against this background, it is a chilling thought that the alleged corruption in the selection of judges has opened a third and particularly ugly front. If indeed a member of the Judicial Appointments Committee was swayed by bribes, this constitutes the deepest possible subversion of the system and its legitimacy. This is a lethal virus that, we fear, has penetrated to the core of one of the control centers of Israeli public life.

Democracies take pride in the fact that they know how to conduct the lives of both individuals and the nation in the shadow of disagreements. The social tool that makes this possible is the independent judiciary, whose rulings are accepted by all, even when they outrage one party to the dispute, because it is perceived as honest and professional. When judges pay bribes and those appointing them receive bribes, they destroy our faith in the system’s integrity and professionalism and thereby undo our ability to function as a group. On the eve of their entry into Canaan, Moses imposed a severe oath on the people: “Cursed be he who accepts a bribe … —and all the people shall say, Amen” (Deut. 27:25. We too must take this oath.

About the Author
Yedidia Stern is vice president for research at the Israel Democracy Institute and a professor of law at Bar-Ilan University.
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