Michael Sfard These Are the Israeli RBGs
A Happy New Year to you, Mr. Attorney General! Let’s hope that this year, your talents and abundant powers will be devoted to strengthening and entrenching the rule of law in Israel. Oh, that’s already the case? Great. But I’m referring to the rule of law in the more profound sense, not the technical one.
I’m referring to the idea that social life be governed by norms that were decided upon with the participation of all the citizens, apply equally to all, and were designed to guarantee conditions of freedom, equality and dignity which in turn allow everyone to fulfill their potential and pursue their happiness.
Okay, that hope will be somewhat difficult to realize. Because your professional service in the last year included, for example, pursuing the expropriation of land based on national identity. Just two weeks ago you motioned for a further hearing by an expanded High Court panel on the case of the West Bank outpost Mitzpeh Kramim. You hope the court will allow Palestinian land to be expropriated by applying the concept of “market regulation” even in cases where the expropriation was not carried out in good faith, because the authorities knew that privately owned lands were involved.
Nor does collective punishment accord with the idea of a humanistic-type rule of law. Just last month you filed a different motion for a further hearing, hoping the court will once and for all free the state to demolish the family homes of terrorism suspects, if it chooses to, even if the family members had no knowledge of their relative’s acts.
Yes, Mr. Attorney General, during the past year, as you did every year during your long legal career, you invested most of your time, resources, abilities and professional talents in providing a legal umbrella for perpetuating oppression and denying civil rights to millions of people, Israel’s subjects in the occupied territories.
Nobody expects you to be the Israeli version of Ruth Bader Ginsburg, who passed away on Saturday. Certainly not when you approve segregation on the basis of gender in academia (yes, yes, “only” in programs for the ultra-Orthodox). But between a jurist who repairs bad things and one who defends bad things is a yawning gap. Let’s hope that this year, you take the road that leads to tikkun olam.
And a Happy New Year to you too, legal adviser of the Judea and Samaria region, and to your officers, the “J&D deputy AGs”. You are the “Justice Ministry” of the Israeli apartheid regime in the West Bank. Let’s hope that this will be a year of good deeds, of fulfilling your calling as public attorneys who are supposed to promote the welfare of the subjects of the regime, and to make intelligent use of the powers bestowed upon you by law and particularly by the rifles of your colleagues in the army.
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What do you say? Maybe one of you wants to be the Israeli RBG? To change the world through law, to crush discrimination, to fight against prejudice, to remove the foot of the strong from the windpipe of the weak? To implement the lessons you have learned as the children of a nation that has experienced discrimination, persecution, expulsion, expropriation and extermination? If any of you want to promote the rule of law as a tool to fulfill the happiness and the potential that resides in all human beings, rather than as a tool for perpetuating domination, hegemony and tyranny – go ahead, shout “Me!”
But to “RBG-ize” your career means changing your attitude. For example, it means that you will no longer be able to draft orders that apply one law to Israeli Jews in the West Bank and another to the Palestinians. Also, the legal support you provide for demolishing the homes of the weakest elements of the occupied population of the West Bank, for uprooting communities, for destroying electricity and water installations – between us, all activities actually meant to pave the way for settlement expansion – doesn’t exactly accord with what RBG represented.
Will you give up all that ? No? I understand. After all, after your discharge from the military, the best and brightest of you will go on to practice law in high-class Tel Aviv firms. Lots of “defense exports” transactions with the Gulf states await you there. (Gallons of cologne have been poured on that term, “defense exports,” in order to conceal the smell.)
Of course we won’t find the Israeli RBG among the state lawyers. The very idea is laughable.
Before joining the U.S. Supreme Court, RBG was an attorney in the American Civil Liberties Union, where she headed the Women’s Rights Project and sued state and federal administrations for discriminating against women.
She was not the only justice appointed to the Supreme Court after a career in civil society. Thurgood Marshall, the first Black justice, had served as an attorney at the National Association for the Advancement of Colored People, where he challenged established and systemic discrimination against Blacks, among other things winning the famous Brown vs. the Board of Education case, resulting in racial segregation in schools being banned.
If we want an Israeli RBG, we need to look among the local groups that resemble the organization in which the American RBG grew up: the Association for Civil Rights in Israel, Adalah, the Israel Women’s Network, Ha’Moked for the Protection of the Individual, the Hotline for Refugees and Migrants, and so on. We need to look in the human rights organizations, in organizations that fight against discrimination and violence against women, and in the few law firms that have waived the pleasures of wealth and represent the tired and poor, people with no connections in the corridors of power.
There are quite a few RBGs walking around in those organizations and firms. One snag is that in Israel, justices aren’t appointed from human rights organizations. We can only imagine the tornado that would ensue if the idea were raised of appointing a female attorney who has devoted her life to defending human rights to the Supreme Court.
Ruth Bader Ginsburg was born into a world that didn’t want her among the top decision makers. The daughter of Jewish immigrants who settled in Brooklyn, she had firsthand familiarity with discrimination, exclusion and oppression, both as a Jew and as a woman. She embodied a secular, liberal and humanistic Judaism and became the most important and influential Jewish judge in the 20th century.
In Israel she would probably be scorned as a “leftist” and a “traitor.” But RBG used to joke, based on her own biography, that what separates a salesgirl in a marketplace bookstore from a Supreme Court Justice is one generation.
I am offering a secular prayer that 5781 will be a year that will advance us to the next generation.
Attorney Michael Sfard is representing Peace Now in the Mitzpeh Kramim case, which is mentioned in this article. The organization requested to intervene as amicus curiae.
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