Thursday, December 14, 2006

Secret society

By Yuval Yoaz

For three hours, the Supreme Court justices sat in the "oval room" - a conference room with a large oval table in the center - at one of the stormiest meetings ever held there. For a long time afterward, the secretaries in the president's office recalled the shouting they had heard through the walls. That was in March 2003, on the day that, in the opinion of journalist Naomi Levitsky, "the Supreme Court justices rose up against their president."

That day, the justices had convened for a crucial meeting, their third, on the question of the appointment of Prof. Nili Cohen as a Supreme Court justice. The president of the Court, Aharon Barak, supported her appointment and tried to promote it in every possible way. On the other hand, Justice Dorit Beinisch, his protege for years and the person slated to inherit his job when the time came, did everything in her power to torpedo the appointment.

At the meeting itself, Beinisch did not talk very much. She had done the work earlier behind the scenes, in discussions with her fellow justices. At the time, she barely wrote any legal decisions; she was too busy working to block Cohen from morning till night. She even managed to bring Mishael Cheshin, one of Cohen's avid supporters, over to her side. Now Cheshin was opposing her appointment with the same enthusiasm with which he had praised her not long before. "From what I've heard about her," he said at the meeting of the justices, "she absolutely must not be brought in."

On the table was a letter that had arrived at Barak's office, written by Prof. Zvia Agur, a biologist who had been working in the faculty of life sciences at Tel Aviv University, did not receive tenure and was dismissed. In the letter, Agur accused Nili Cohen of persecuting her and personally harassing her. It was never clarified, by the way, how this letter got into Barak's hands. The envelope did not bear the stamp "received," as is usual for mail that comes to the Supreme Court.

"They told me that there were serious problems of human relations," said Justice Eliezer Rivlin, a quiet, pleasant man, adding fuel to the fire. "She will cause quarrels here." Theodor Or, perhaps the justice closest to Barak, came to the aid of the president and said that Cohen should be appointed. "Now you're saying that we should appoint her," said Rivlin, "but only a few days ago you told me that you had also heard unpleasant things about her."

"That's not true, I didn't say that," replied Or, and Rivlin jumped up from his seat, exclaiming, "What, am I a liar?"

Many newspaper articles followed the Cohen affair, but none of the justices was ever openly interviewed about it. Beinisch herself, on the eve of her appointment as president of the Supreme Court, gave a background interview to the daily newspaper Yedioth Ahronoth, but never spoke about it in public. Now she has agreed to do so, but for a book rather than to the press. "Ha'elyonim" (The Supreme Court Justices), Levitsky's second book (the first, a biography of Aharon Barak, came out five years ago), will be published this week, in the Hasifriya Hahadasha (New Library) series of Kibbutz Hameuhad publishers, and includes on-the-record conversations Levitsky held with many past and present Supreme Court justices, primarily Barak, Beinisch and Cheshin. Some of the justices who spoke with her demanded that they be cited only in indirect speech, without quotation marks.

Not Beinisch. "I'm not the only one who believed that Nili Cohen was not the person who would save this court," she told Levitsky. "That was the general opinion, and that was the main reason for our opposition to her appointment. The discussion during the meeting of the justices was much more practical than people think. They wanted to bring Nili Cohen here as a reinforcement candidate, and that's very complicated. In order to bring someone from the academic world here, it has to be a very specific type of academic world. A person who has never seen a courtroom, who has never even crossed the threshold, is not a person that this court needs. I am trying to strengthen the constitutional aspect of the court, the public aspect of the work here."

A few days after that stormy discussion, Justice Dalia Dorner suggested appointing Eliahu Mazza, who was considered neutral in the matter, as a type of "investigating judge" in order to see whether there was any truth in the accusations against Cohen, or whether it was merely slander and gossip. Beinisch agreed, but the next day Barak demanded that former justice Yitzhak Zamir be included in the investigation. Mazza was so insulted that his face turned red, and he announced that if Barak wanted Zamir to investigate, that was fine, "but not together with me."

At the end of that meeting, as Levitsky describes it, "it was clear that most of the justices were siding with Beinisch, the president-designate, and turning their backs on the incumbent president. This was a situation the likes of which had never been seen before in the Supreme Court. Over three years before the end of the president's candidacy, it was clear to everyone that the center of power had been transferred from the president himself to the person designated to be the next president."

How did Levitsky manage to get behind the scenes of the "Holy of Holies," as she herself describes the Supreme Court, and convince the justices to cooperate with her and expose their secrets? "I simply went from one to the other and spoke with everyone from whom I thought there was a chance of getting information, until I got the whole picture," she said in an interview a few days before the publication of her book. "I knew there had been a major drama in the Nili Cohen affair, and I wanted to investigate it thoroughly. The matter of Nili Cohen was less interesting to me that the transfer of power. Three and a half years before the changing of the presidents there was an exchange of power, and that is something that fascinates me."

Did Beinisch plan the move to reinforce her power?

"These are simply things that happen. When someone loses power, when his locks have been shorn, the power is naturally transferred. That's the nature of man and the nature of every organization. In my opinion, the Nili Cohen affair forced Beinisch to float to the top much earlier than she had planned. She had been a quiet and invisible justice, largely unheard except in limited forums."

Did she regret the uproar that centered around her?

"I assume she did. She herself understood that it didn't help her publicly. But she was very determined on this matter; she did not regret that the appointment did not go through. Beinisch is a strong and determined woman. When she takes on a challenge, she takes on a challenge. We've seen that in her personal history, she's willing to take risks, and it's impossible not to respect her for that. She has a strong character. I'm not even talking about her beauty. When I saw her for the first time, about 20 years ago, she took my breath away."

Levitsky met Beinisch for the first time in 1985, when she had just become a reporter for the weekly news magazine Koteret Rashit and Beinisch was the deputy state prosecutor. A short time later, their paths crossed in the Bus 300 affair (in which Palestinian hijackers were beaten to death by Shin Bet agents). To her surprise, perhaps because of her longstanding ties with Beinisch, it was not too difficult to persuade her to be interviewed for this book. In one of the conversations Beinisch also referred to the fraught meeting in her office between her and Judge Boaz Okon, at the time the director of the Courts Administration, and the man who would become one of her bitter enemies. Okon, a close friend of Nili Cohen and her former research assistant, was sent by Barak to find out whether Beinisch would agree to a double appointment to the Supreme Court: Nili Cohen together with Edna Arbel, Beinisch's close friend.

"He spoke to me aggressively and with chutzpah," said Beinisch. "He told me that I was not yet the president, and it was not certain that I would be president, and what was I thinking when I opposed the viewpoint of the president like that." Okon served as legal editor for Levitsky's first book, and in effect as a private law tutor on behalf of Barak. Now, an interviewee like all the others, he has a different version of what took place at that meeting: "I came in and told her that I understood that she had serious complaints against Nili, personal complaints. Beinisch stopped me immediately and said that her opposition was not personal, and that she was opposed to the appointment because she didn't think that someone from the academic world should be appointed now, and that was the end of the conversation." Barak, who heard from Okon about the outcome of the conversation, understood that the story was over.

Did Barak understand at that point that his status had declined, that his exclusive hold on the center of power in the Supreme Court had ended?

Levitsky: "I can't answer that in his place, but I would guess that he understood. At the time he was very hurt. Anyone who met him then could see that he had changed completely. He wasn't the same person, he had lost some of his vitality."

Consolidating a majority

The book shatters two common assumptions about the way Supreme Court justices write their decisions. One is that every justice is entirely independent in this activity - alone with the paper, with the facts in the file and their legal analysis. There is no authority above him except that of the law. The second assumption is that the reason why so much time passes between discussion of the fundamental petitions and the decision on them is the tremendous workload borne by the justices.

Levitsky snickers when she hears these things. Her book is full of examples from behind the scenes that prove that neither assumption is true. Instead, the justices consult with one another, persuade one another, make efforts to convince and even negotiate with one another about the wording of the decision so that they will be able to say, "I agree."

On the other hand, important decisions are sometimes delayed for years on end so that one justice or another will succeed in obtaining a majority among the justices on the panel. And if efforts to convince don't help, changes in the composition of the panel do.

"The justices pass along a large number of drafts to one another," says Levitsky. "One tells the other, I can agree with you on condition that you omit this and that sentence. There are entire negotiations between them. In order to consolidate a majority on a certain issue, sometimes justices have to relinquish one sentence or another. They sit at meetings, speak among themselves and deliberate. Sometimes they also consider how the ruling will affect the court."

The case of the Citizenship Law amendment that prevents reunification of families of Israeli Arab citizens married to Palestinians proves almost everything that Levitsky wants to prove in this connection. The petition was discussed by a panel of 13 justices, including Justice Salim Joubran, who at the time still had a temporary appointment in the Supreme Court. During the meeting of the justices, Barak, who supported overturning the amendment, was under the impression that he had succeeded in garnering a majority of seven justices, as opposed to six justices headed by Cheshin who wanted to leave the amendment in place. He wrote his decision, but when his attempts to bring Eliahu Mazza, Asher Grunis or Miriam Naor over to his side failed, he decided to shelve his ruling. Levitsky says that he was simply afraid to overturn the amendment to the Citizenship Law on the basis of a majority of seven to six, with an Arab judge as the deciding factor.

The shelving of the decision written by Barak, when it had a majority in the Supreme Court, is a sensational revelation that is being published for the first time in the book. A year and a half after the petitions were submitted to the High Court of Justice against the Citizenship Law, when Justices Theodor Or and Dalia Dorner had already retired, Barak appointed Esther Hayut and Yehonatan Adiel to the panel. But since he had not yet succeeded in changing the balance of power within the panel, he decided, with Mazza's encouragement, to publish an interim decision expressing dissatisfaction with the amendment; but it has no real binding validity. All the justices on the panel agreed to sign this decision. "Our hope was that the government would understand and do something," said Mazza. But his hope was dashed.

Prior to Cheshin's resignation from the court in May 2006, Barak decided to end the affair and publish the decision. Now only 11 justices remained on the panel, and Barak discovered to his chagrin that even his fragile majority had disappeared. Adiel decided to adopt Cheshin's position. Barak, in an attempt to preserve the majority, agreed to give the government eight more months to change the law. But three days before the publication of the decision, Eliezer Rivlin, who considers himself the successor to Barak's liberalism in the defense of human rights, informed him that he had changed his mind and sided with Cheshin.

Barak had a plan: He wrote a moderate decision, in order to convince the justices to adopt his position. In case he discovered that he had been unsuccessful in obtaining a majority, he planned to write a much more sharply worded minority opinion against the amendment. But since the balance of powers was discovered at the very last moment, he didn't have any time left to do so.

Even Cheshin once shelved a decision he had written, under the influence of the internal politics of the Supreme Court. Up until now he has refused to reveal the subject of that shelved decision. Levitsky reveals the secret: It dealt with the well-known "Ka'adan-Katzir affair." (An Israeli Arab family tried to buy a house in a new community, Katzir, established by the state and the Jewish Agency on state-owned land. The Katzir housing committee refused to allow the family to move in on the grounds that they were not Jewish. The family petitioned the Supreme Court, claiming that this constituted racial discrimination, and challenging the fact that citizens could be excluded from public land through the Jewish Agency.) Barak tried, as usual, to consolidate a solid majority for his ruling, when it was already clear that its influence would be broad and precedent-setting. However, Cheshin surprised him when he declared that he planned so write his own decision.

"When Barak received a draft copy of Cheshin's decision," writes Levitsky, "he was upset. Barak could not accept the words. In a very exceptional step, he entered Cheshin's room and closed the door behind him. 'You cannot publish such a thing,' said Barak, 'it will shame you, and not only you, it will shame this entire court. These words will be published all over the world and will be condemned.'"

Barak said it was not easy to convince Cheshin to shelve the decision he had written. As a last resort, he invoked the memory of Cheshin's late father, Supreme Court justice Zalman Cheshin: "Misha, if you yourself don't care, think about your father. What would your father say about the things you've written here?" Cheshin finally agreed to shelve the decision, and joined Barak's opinion.

Secret society

Levitsky worked on her book for two and a half years. Since the publication of her first book, "Kevodo" (His Honor), the biography of Barak, Levitsky has been teaching a course in the law school of the Tel Aviv College of Management, though she lacks formal legal training. The course deals with the connection between the personal and professional background of judges and their legal world view and decisions. At a certain stage she decided to collect all the material that had accumulated in the course she taught and to turn it into a book. For a year she worked only on research, spoke with almost 120 open sources and another 10 clandestine ones, and read legal decisions, books, articles and biographies of Israeli and American judges, before beginning to write.

Her father, Asher Levitsky, was a renowned Tel Aviv lawyer in the 1950s and '60s, who dealt mainly in criminal law. He died when Levitsky was 8 years old. She is the only daughter of her mother Mary, who died while she was working on "His Honor." That is the reason for her instinctive identification with Dorner, who also lost her father at an early age.

Levitsky was born in Jerusalem, and while still in elementary school, moved to Tel Aviv. She married early and divorced early, and a short time after her divorce her former husband was killed in a traffic accident. Before working in journalism she served as an emissary for the United Jewish Appeal in the United States. She began to write for Koteret Rashit in 1985, after a conversation with the editor, Nahum Barnea. At the same time she moonlighted as a bartender in a pub on Ibn Gvirol Street.

Three years later she moved over to the now-defunct daily Hadashot as a senior political correspondent, and in 1991 she moved to the daily Yedioth Ahronoth. She says she was never defined as a reporter, but she brought in many scoops. In 1998 she left Yedioth after a prolonged period of mutual cooling of relations. Something went wrong with the chemistry, she says.

Levitsky is extremely protective of her own privacy, which is somewhat surprising in light of her project of exposing the private lives of the justices, and her positions on the connection between one's biography and professional life. During the years when she was working on "His Honor" she supported herself on the monthly stipend she received from the publisher. In recent years she has received support from the Tel Aviv Foundation, in addition to her salary from the College of Management. The financial security enabled her to devote herself to researching what goes on inside the Supreme Court. Anyone who works as an active journalist, she says, who has to deliver the goods on a daily basis, has neither the time nor the ability to do that. Moreover, she says, the media have not completely internalized the full importance of the Supreme Court.

The Supreme Court, she says, is the last of the clandestine organizations in the country. It is easier to penetrate the Mossad and the Shin Bet security services. "The justices would certainly prefer to continue conducting the entire business under a mantle of secrecy," says Levitsky, "but as [U.S. Supreme Court] Justice Louis Brandeis once said: 'Sunlight is said to be the best of disinfectants.' Barak adopted this saying, but he of course is referring to everything but the court.

"I think that one should expose as much as possible. The court is today perhaps the strongest organization in the country. It's an aggressive, institutionalized organization, and there are power struggles and power hierarchies there. The justices determine every step in our lives, without our even noticing in everyday life how much of it they have determined."

In the final analysis, the Supreme Court justices are human beings - they like the same food, laugh at the same jokes and have the same loves, hates and needs as everyone else. The expectation that they be perfect, she says, is simply unfair. "In the long run, I think that if we treat the justices more like human beings and less like the sons of gods, and understand them better, we will be able to accept their decisions more easily, even if we don't agree with them."

In the book Levitsky tries to decipher the way in which the justices arrive at decisions. They can talk as much as they like about legal reasons, she says, but things also have a political aspect, not in the sense of party politics but in the public, social, ethical sense. She believes that the Supreme Court should not be another appeals court.

"I am among the members of the public who believe that the role of the Supreme Court is to set norms, to move processes of social evolution, to deal with human rights. That is what I expect from it. From my point of view, that is its job. Barak always told me, you are dealing with 2 percent of the things we do, and I replied that those are the 2 percent that give you the title 'supreme.' Otherwise, you're just another appeals court, and that doesn't interest me."

What will your next project be in the political arena?

"I don't want to commit myself, but the work was so hard, exhausting and pressured, that the way I feel now, this is the last project in that area."

She has some advice for the person who writes the next book on the Supreme Court: To devote a great deal of attention to Justices Ayala Procaccia and Edmond Levy: "Because they have been in the Supreme Court for only six years, it's impossible to go all the way with them in this book, but these are justices with very complex personalities, they are unpredictable and they look at things differently. It's interesting that they were appointed together, as though representing two sides of the divide, one liberal and the other conservative, and sometimes they can be found on the same side of the divide."

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