A court of one
by Jonathan Rosenblum
October 15, 1999
For people who so pride themselves on being in the front rank of socially advanced nations, Israelis often seem blissfully oblivious to the various anomalies of Israeli society and government. The virtual absence of any wide-scale recycling is one example. And the manner in which we select our top judges - unique among democratic nations - is another.
Mordechai Haller, a brilliant young legal scholar, has now dissected the latter issue in the Autumn issue of Azure. In 'The Court that Packed Itself" (a reference to President Franklin Roosevelt's aborted plan to pack the United States Supreme Court), he shows how the justices of the Israeli Supreme Court are self-selected, with minimal input from the elected branches of government.
All democratic governments wrestle with the dilemma of how, on the one hand, to preserve judicial independence from unwanted political interference, while at the same time ensuring that justices remain accountable to the basic values of the nation whose laws they are interpreting.
In Israel and elsewhere, lifetime tenure for judges is the virtually universal solution to the problem of judicial independence. At the same time, judicial accountability is preserved in every democratic society, except Israel, by a selection process for the nation's constitutional court dominated by the elected representatives of the people.
In the United States, for instance, the president nominates judges for the entire federal judiciary, and the nominees must be confirmed by the Senate. In Germany, the two houses of the legislature each select half the members of the constitutional court.
Only Israel allows almost no role for elected officials in the selection process. Three members of the nine-member judicial selection committee are sitting members of the High Court, including the court's president, two are representatives of the Israel Bar Association, and the other four are members of the two leading parties, a member of the Knesset Law Committee, and the justice minister.
Thus the majority of the committee is unelected, and the two members of the Bar are subject to many forms of pressure by the president of the court, before whom they may frequently appear. The justice minister, too, has proven to be easily manipulated by the court president.
So in both theory and practice, the process is dominated by the court president. Court scholar Martin Edelman sums up the situation: 'By established practice, appointments to the Supreme Court require an affirmative vote of all three justices on the panel."
The selection of Justice Dorit Beinish demonstrates the power of the court president to advance his choices. In 1993, the judicial selection committee, with all three justices voting negatively, rejected Beinish as less qualified than other candidates. Two years later, however, after Aharon Barak assumed the presidency of the court, he was able to push through the candidacy of his good friend unanimously, and she is slated to succeed him as court president in 2006.
OUR method of judicial selection leads to several critical distortions in the judicial system. Not surprisingly, it has resulted in a court of striking ideological and sociological uniformity. The current justices are within five years of one another in age, attended the same law school, and most made their careers in academe or public law. Not one has even a baccalaureate degree in any subject other than law. The court is grossly unrepresentative of Israeli society.
Though the court has repeatedly intruded in areas involving the fundamental values of society, including fleshing out of the meaning of Israel's identity as a 'Jewish and democratic" state, there is only one kippa- wearing justice. Jews of Middle Eastern origin are even more underrepresented.
Self-selection has resulted in a court lacking any ideological clash.
The history of the US Supreme Court is usually portrayed in terms of ongoing battles over conceptions of the proper judicial role, with justices of high intellectual caliber on both sides. Once Felix Frankfurter dueled Hugo Black; today Antonio Scalia and Stephen Breyer represent opposing concepts of constitutional interpretation.
Yet in Israel, there is not one justice who has consistently set himself up as an intellectual counterweight to Aharon Barak, or who has had the slightest mediating impact on Barak's jurisprudence. We effectively have a court of one. That ideological conformity extends down through the judicial system and into academia, since anyone of ambition knows that advancement is entirely dependent on the goodwill of the court president.
Moreover, as the court increasingly ventures into areas devoid where its only guide is its own sense of 'reasonability,' the lack of diversity is particularly telling.
Some of these areas involve complex factual determinations. A court whose members are, in Elyakim Rubinstein's words, 'not known for their exposure to public and social affairs,' is poorly suited to make such determinations.
Other decisions turn on nothing more than the naked value preferences of the justices. In such cases, the ideological uniformity of the court has resulted in what Dror Ben-Yemini describes as the 'circumvention of democracy in favor of the ideological coterie that controls the court."
Finally, the ability of today's court members to ensure successors in their own image, undermines the legitimacy of Israeli democracy, in general, and that of the court, in particular. The fundamental basis of democratic society is the recognition by all groups that even if their views do not prevail today, they may do so tomorrow. Rules that tend to enshrine one viewpoint forever are a contradiction to this perception.
American constitutional doctrine in this century has undergone large shifts over time. The rise and fall of 'substantive due process,' whereby conservative justices struck down social legislation, and its resurfacing 50 years later in the abortion
decisions is one example. The reversal in recent years of the longstanding assumption that the Commerce Clause gives the federal government unlimited authority to legislate national standards is another.
None of these shifts would have taken place if the sitting chief justice, and two others chosen by him - rather than the president and Congress - had controlled the selection of new justices.
Needless to say, Aharon Barak loves the present method of judicial selection. 'May God save you" from any attempt to tamper with the system, he once told the Knesset Law Committee.
The question is whether the rest of us should be so enamored with our peculiar judicial selection process.
Related Topics: Israeli Supreme Court
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