San Diego (special) --While J. Clifford Wallace of San Diego served as the chief justice of the 9th Circuit Court of Appeals, the expectation among his colleagues was that he would be the next judge from the West Coast to be named to the U.S. Supreme Court.

He was on "short lists" compiled by three Republican Presidents -- Gerald Ford, Ronald Reagan and George Bush -- for the much coveted appointment to the high bench . But after Democrat Bill Clinton was elected to the presidency, the hopes of Wallace's backers faded. Eventually, Wallace gave up his duties as the circuit court's chief justice in favor of "senior status," meaning he could work about half time on cases of his choosing.

Do not read this as meaning that Wallace has chosen to slowly fade into the sunset. In fact, there are some members of the judiciary who believe that Wallace may now leave a greater legacy to the world than he ever could have as a Supreme Court judge.

During the "half time" that Wallace no longer deals with cases before the U.S. Circuit Court of Appeals, he is neither fishing on some secret pond nor taking his ease in a hammock. Quite to the contrary, he is flying around the world meeting with chief justices in other countries and helping them to redesign their court systems. HERITAGE carried a story several weeks ago that told of Judge Wallace's speech to the downtown Rotary Club about the work he has been doing with Israel and the Palestine Authority. Last Monday, the appellate judge granted a follow-up interview in his chambers in the downtown Edward J. Schwartz Federal Courthouse. Taking note of the divisions in Israeli society--Jew vs. Arab; religious Jew vs. secular Jew--Wallace suggested that the most critical task facing Israel's court system is to persuade all segments of the population that it can be equally fair to all who appear before it.

JUDGE CLIFFRD J. WALLACE

"In most countries, and Israel in my judgment is no exception, the people have to sense that the courts are independent of the government, because it is usually the government which the people think is the problem," Wallace said.

"They want to have a decision maker but they don' t want a sycophant from the government; they want an independent organization," he said. "So you look at the court system in Israel and you say 'it is independent.' In some ways yes, in some ways no. As far as the appointment of judges and other issues they do a pretty good job of independence, but one area where it is not independent is that it still relies on the Ministry of Justice for its budget."

It is important from the standpoint of maintaining people's confidence that the judiciary have "sufficient distance from the government; that the government cannot punish the judiciary," Wallace said. 

For several years, the U.S. appellate judge has been consulting with Aharon Barak, president of Israel's Supreme Court, on ways to help streamline Israel's judiciary and to project it as a unifying force in that country.

"In 1939, Congress passed the Administrative Office of the United States Court bill which removed the supervision by the Department of Justice over the courts," Wallace said. "In my judgment that needs to be done in Israel, and whether the Knesset will do that or not, I don't know, but I think that it is vital in the long term acceptance of the court as an independent decision maker."

In Israel today, as in the United States before 1939, judges receive their pay checks from the Ministry of Justice. "If you want an additional table, you go to the Ministry of Justice and get some additional money. ...The money situation is important because if the Knesset want to punish, it can do so by withholding the cash."

True, even if the Ministry of Justice relinquishes the power of the purse over the courts, appropriations for judicial administration still would have to be approved by the Knesset -- as they are in the United States by the Congress. "But that is a much more open process," Wallace said. "You come in with a budget and you have open hearings where the Ministry of Justice cannot just say 'no.' And that control can be very significant."

"It doesn't happen in Israel but in many of the countries with which I deal not only does the Ministry of Justice have control of the money, but also of the appointment of judges and the transfer of judges, so if you make a decision which is inconsistent with the current administration you might find yourself in the basement someplace sharpening pencils."

An analogy in the United States, said Wallace, would be if U.S. District Court Judge Rudi Brewster of San Diego were to make "a decision the government didn't like and the next time he were sitting down in Alabama somewhere."

When Wallace visits a country to determine just how effective its judiciary is, he likes first to look at the data -- how many cases are filed, how many are being settled, how many are going to trial, how long do the trials take. Then he likes to talk with key judges and finally watch a few cases being tried.

The judge suggested that Israel's court system already is being swamped with the sheer volume of disagreements among its citizens. Whereas 9 out of 10 cases in the United States are settled before going to trial, he said, in Israel only 1 in 2 cases are. 

At Wallace's suggestion, Israel has been testing three slightly different systems of arbitration to see if disputants can be persuaded to settle their cases out of court and thereby reduce the judicial workload.

In the Peace Court, or Magistrate's Court, in Jerusalem, four or five judges have been assigned to work strictly on settling cases -- receiving cases on referrals from other judges. In the Peace Court of Tel Aviv, a cadre of lawyers have been trained to mediate disputes with the goal of settling them. At the Supreme Court, meanwhile, retired judges are working as mediators. "We're...trying to see which of the three works best in Israel," Wallace said.

He has found in his worldwide consulting that different countries have preferences for different systems, Wallace said. "In Sri Lanka, lawyers are highly respected so they focus around lawyers. In the Philippines, they focus around a village elder system. In China, they used retired people. In the United States we have always used active lawyers, primarily. It depends on how the people react. Some will say 'no, I would rather go to a lawyer'; others will say 'I want someone with a black robe.' The difference between active and retired judges is that the retired judges have more time, so you are better off using them so you don't have to pull someone off the bench to do settlement."

The experiments in Israel have been proceeding for less than a year, too little time to draw any conclusions yet, Wallace said.

There are three levels of courts in Israel. 1) The Peace Court, which hears most cases; 2) the District Court which serves as the first court for very important cases and as the appeals court for decisions made in Peace Court, and 3) the Supreme Court which serves as an "automatic" appeals court for all cases originally heard in District Court, and as a review court, at its option, for those cases that were appealed to the Peace Court.

Because Israeli citizens whose cases were heard in District Court have an automatic right to appeal to the Supreme Court -- even if the issues are fairly straightforward -- the high court faces tremendous backlogs.

To streamline the system, Wallace is encouraging Israel to require lawyers in the straightforward cases to submit written briefs on why the lower court's cases should or should not be affirmed. Like most other countries whose systems is based on the British model, the Supreme Court has been hearing time-consuming oral arguments in all cases, regardless of how complicated the issues.

Deciding some cases on the basis of written briefs "takes a lot of pressure off the Supreme Court because they than can concentrate on cases which are very important cases and give all the process that is due to cases which don't require them."

The big question, said Wallace, is how do you make a court system more just, so that it has the confidence of nearly everyone?

"By getting good judges, and you train them, and you do a lot of training," he answered. "You have the court writing reasoned dispositions that people can understand. They may disagree with it, but they can understand the position--that there are reasons in it. You do that by the judges doing a lot of homework. They can't do that if they are working so hard because there is a mountain of (routine) cases. This all ties in together: judicial administration ties in with acceptance."