More clique than court

Ha’aretz sharply criticized the recent decision of the Knesset House Committee not to lift Naomi Blumenthal’s parliamentary immunity. Immunity for actions done outside of one’s official capacities, explained the paper’s lead editorial, is unknown in the rest of the democratic world "and distinguishes the Knesset negatively from all other democratic parliaments."

A powerful argument that. So powerful indeed that I await another Ha’aretz editorial sharply critical of another great anomaly in the Israeli legal system: Only in Israel, of all Western democracies, do sitting Supreme Court justices control the process for the selection of new justices.

In the latter case, however, Ha’aretz finds nothing to be learned from the universal practice in the rest of the democratic world. Au contraire. According to Ha’aretz, "The Israeli legal system, headed by the Supreme Court, is one of the only springs from which the state draws its ability to claim inclusion in the developed world. . . . [And] the Supreme Court developed its high quality and acquired its reputation thanks to the current appointments system."

Ha’aretz’s legal commentator, Zeev Segal, asserts, without citation, that our peculiar method of judicial selection is widely considerer "a better model" than those employed elsewhere. And in an article by Gideon Alon, Minister Yossi Paritzky confidently maintains "that ours is the best legal system in the world" and that there is no reason to change the system of judicial selection.

Why the sudden provincialism when it comes to our peculiar method of judicial selection? Why suddenly is there nothing to learn from the rest of the world, as in the case of limited parliamentary immunity?

One would never know from Ha’aretz that there is a reason that in virtually every other democracy justices to the highest constitutional court are selected by some combination of the executive and legislative branches. The involvement of the elected branches in the selection procedure ensures that those making basic normative decisions for the entire society are in touch with the norms of the citizenry. In that way the inherent tension between judicial review and majority rule is lessened.

Judging inevitably involves a measure of value judgment. Though Court President and Ha’aretz often find it a useful debating tactic to speak of judges as if they were value-free, disinterested legal experts, Barak, at least, knows better. In his work, Judicial Discretion, Barak freely admits to the large element of value judgment inherent in the judicial process.

He is equally forthright about the sources of a judge’s values. They are a product of his "education, personality, and emotional makeup." A judge, Barak contends, should not apply his personal values but rather those of the society in which he dwells. Well not exactly the values of the entire society, but rather those of the "enlightened public" – a group which includes legislators, fellow judges, lawyers, law professors, and other forward-looking members of society. (No wonder the Court President is Ha’aretz’s greatest hero.)

In determining the values of the "enlightened public," however, Barak cheerfully concedes that when a judge thinks of "enlightened," he will usually think no further than himself. So, in the end, his personal views and those of the enlightened public are identical.

While all judging involves an element of value judgment, courts vary greatly in the ambit of cases to which they apply such judgments and the degree to which they are willing to substitute their value judgments for those of the other branches of government. Another word for value judgments about the proper ends of life and means for attaining them is politics.

The Israeli Supreme Court is unquestionably one of the most politicized in the world. That is true in two senses. The first is the scope of the areas into which the Court is willing to venture and impose its judgment. By abandoning traditional doctrines of judicial self-restraint, such as standing and justiciability, and by subjecting every government decision to a test of reasonability, the Israeli Supreme Court has assumed a larger role in determining basic societal norms than any other Supreme Court in the world. (These factors, not the infrequently invoked power to strike down Knesset laws, are the real source of the Court’s vast power.)

The second sense in which the Court is highly politicized is that its decisions consistently reflect a particular political or ideological stance. One can produce, as I have done frequently in these pages, a long list of paired cases in which the different outcomes are explicable only in terms of the political identity of the parties.

Precisely because the Court is so political does it become imperative that the elected branches have a much larger say than at present in the selection of justices. Otherwise we shall all be subject to a Court of Platonic Guardians that believes itself entrusted to determine the basic values of the entire society.

OF LATE the anomalous nature of our judicial selection process has finally begun to attract scrutiny. Last week’s refusal by three Knesset members of the judicial selection committee to participate in the vote on new justices represents a token rebellion against the justices’ total monopoly of the selection process.

Court President Barak was particularly incensed by the opposition of Labor MK Dalia Itzik, telling her, "I’m surprised at you Dalia Itzik. What happened to you?" That religious MKs like Tourism Minister Benny Elon and Shaul Yahalom might insist on a role for the elected branches in the judicial selection process the Court President could deal with, but not with a lack of subservience from a left-wing MK.

The three justices on the judicial selection committee meet in advance and determine their candidates for new posts. Except in the rare case of an independent-minded Justice Minister like Yossi Beilin, no candidates are ever discussed other than those of the justices and no candidate has ever been accepted without their unanimous approval.

Hebrew University law professors Mordechai Kremnitzer and Shimon Shitreet have both argued recently that the collusion in advance among the justices is an illegal violation of proper administrative norms. And a variety of proposals have been put forth to alter the process.

All agree, for instance, that the greater transparency is needed. As the Supreme Court has itself said in a number of administrative law contexts, "A little bit of sunlight is the best disinfectant." The recent case in which Justice Dorit Beinisch scotched the appointment of Professor Nili Cohen for unspecified reasons in order to help ensure the ascension of her friend and successor as States Attorney, Edna Arbel, has added new urgency to these proposals.

Tel Aviv University law professor Daniel Friedman proposes that there should be no sitting justices on the judicial selection committee and that a separate body be charged with forming a list of candidates to be discussed. Professor Shitreet seconds the proposal for a separate body to select candidates for the Court.

The latter proposal is designed to cure the present system in which the candidates for the Court tend to come from a very circumscribed set of legal backgrounds and career paths. It has been assumed for years, for instance, that Attorney General Elyakim Rubinstein and State Attorney Edna Arbel would one day be appointed to the Court, despite the frequent criticism to which both have been subject in their current jobs and the long series of failed prosecutions of public figures launched during their watch.

The current judicial selection process has resulted in a Court that resembles, in Professor Ruth Gavison’s words, "a closed sect – a sect that is too uniform and which effectively perpetuates itself." It is good news for Israeli democracy that the justices finally find themselves forced to "return fire" in their defense, even if Ha’aretz still hasn’t heard the news.