How not to pick a Supreme Court
by Jonathan Rosenblum
Jerusalem Post International Edition
June 29, 2001
Americans are bracing for a battle royale in the Senate over the upcoming judicial appointments of President George Bush. The confrontation promises to be brutal and to continue the trend of increasing politicization of the judicial selection process going back to the Bork confirmation hearings.
Israel, by contrast, has developed one of the most efficient judicial selection procedures in the world: the Chief Justice and Justice Minister sit down together and pick new justices, whose selection is then rubber-stamped by the remaining seven members of the judicial selection committee.
In practice, Chief Justice Barak dominates the process. Over the last decade, he has played a decisive role in the selection of not only every Supreme Court justice but also in appointments to Israel’s lower courts. Israeli newspapers routinely describe new judicial appointments as ``Barak’s picks."
Before Americans embrace the efficiency of this system – the judicial equivalent of Mussolini’s getting the trains to run on time – however, they should consider the system’s drawbacks. As one would expect, it has resulted in a Court remarkable in its ideological uniformity. The titanic struggles between rival judicial philosophies that characterize American Supreme Court history – e.g., Hugo Black vs. Felix Frankfurter – are absent from Israel. There is not one justice on the Israeli Supreme Court who serves as a mediating influence on Justice Barak’s jurisprudence, and it is rare for a decision of major impact in Israel to be decided by a narrowly divided Court.
Barak’s dominance of the judicial selection process chills dissent throughout the legal system. Any lower court judge, academic, or attorney-general who aspires to judicial advancement knows that his or her fate is in Barak’s hands. Former Justice Minister Yossi Beilin found out to his surprise that what leading academics, practitioners, and judges told him in private about various court reforms proposed by Barak differed sharply from what they were willing to say in public.
Not only is the Court totally unrepresentative of the wide ideological diversity of Israeli society, its ability to ``pack itself" ensures the perpetuation of the views of a tiny minority over time. Professor Ruth Gavison, one of Israel’s leading experts in constitutional law, describes the judicial selection process as having produced a Court resembling a ``sect which is too uniform and effectively perpetuates itself."
The ability of the Court to perpetuate itself by selecting ideological clones of itself undermines the democratic legitimacy of the entire judicial system. Democracy depends on the recognition by those holding competing viewpoints that even if they do not prevail today, they may do so tomorrow. Anything that tends to enshrine one particular viewpoint forever destroys this perception and embitters political debate.
Not surprisingly, Justice Barak bristles at criticisms of the selection process. The great virtue of the system, he says, is that it protects the selection process from undue political interference. To charges that the Court is totally unrepresentative of the Israeli population or its values, Barak responds: Should the nation’s doctors be chosen by ethnicity or ideology rather than professional expertise?
The problem with Barak’s analogy is that the Israeli Court has taken the lead in resolving all Israel’s normative and policy debates – resolution of which typically have nothing to do with professional legal abilities. Indeed Barak has ardently promoted court reforms designed to free the Court from most of its appellate docket so it can concentrate exclusively on deciding citizen complaints against the executive branch or Knesset. Those suits inevitably involve the Court in political judgments without little or no positive law to guide them.
Former Chief Justice Moshe Landau summarized the present situation: ``The justices of the Supreme Court see themselves more or less as governing elders. . . [They] have taken on a role that they are utterly incapable of fulfilling, and for which they have not been trained; they were trained to judge, not to govern."
In short, to answer Justice Barak’s analogy to medical exams: Yes, we all want our doctors to undergo extensive training and to pass qualifying exams. But we would be appalled if the results of the MCATs were used to select the national soccer team.
The more that Israel’s Supreme Court has usurped the policymaking role of the elected branches to enter what Justice Landau terms ``the morass of political opinions and beliefs," the greater the required involvement of the elected branches in judicial selection. That involvement helps ensure that policymaking powers will be exercised by justices whose values more closely reflect the variety of values in the general society.
Related Topics: Israeli Supreme Court
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