Made in America is better
by Jonathan Rosenblum
July 21, 2005
Washington, D.C. is bracing for a brutal nomination fight over President Bush's nominee to replace Sandra Day O'Connor on the United States Supreme Court. The expected battle royale over the nomination will be cited as proof of the superiority of the Israeli system, in which justices are selected by a nine-person judicial selection committee, including three sitting members of the Supreme Court. Court President Aharon Barak constantly extols the Israeli system for producing a "professional" rather than "political" Supreme Court.
By professional, Barak implies that Israeli Supreme Court justices are both more competent and more ideologically neutral than justices selected in more openly political systems. Both propositions are highly dubious.
Except for Barak himself, no member of the current Israel Supreme Court enjoys an international reputation as a jurist or legal scholar. Besides Justice Mishel Cheshin, none is a literary stylist. The most distinguished legal mind to be nominated for the Court in years, Professor Ruth Gavison, is fiercely opposed by the three justices on the Supreme Court Committee, and their loyal factotums, the two bar association representatives on the Committee.
Only a completely non-transparent and closed judicial selection system can explain how someone such as former State Attorney Edna Arbel made it to the Court. Arbel's best friend and predecessor as State Attorney, Justice Dorit Beinisch, used her power on the judicial selection committee to scotch the appointment of any candidate for the slot she had reserved for Arbel. Even Ha'aretz, normally an avid supporter of the Israeli judicial selection process, admitted that Arbel's legal abilities are mediocre.
In addition, Arbel appears ethically challenged. Most egregiously, she participated in a trumped up prosecution of Yaakov Ne'eman for the purpose of forcing him to resign as Justice Minister, a position to which he never returned even after being fully exonerated by the trial court. Further Arbel has been twice accused of trying to secure positions for her husband from government ministers then under investigation by the State Attorney’s office. Had her nomination been exposed to the type of public scrutiny that faces nominees in the United States, she could never have won confirmation.
The eight judges on Bush's short list of potential nominees compare very favorably to the members of the Israeli Supreme Court. Two of them clerked for the United States Supreme Court, positions reserved for only the most brilliant law school graduates in the country; two of them taught at leading law schools before being appointed to the U.S. Court of Appeals; and all have a large corpus of judicial opinions and articles in legal journals.
Even if the justices on the Israeli Supreme Court were brilliant jurists, they are hardly less ideological or political than their counterparts on the American Supreme Court. Under Barak, the Israeli Supreme Court has eschewed traditional doctrines of judicial restraint, such as standing and justiciability, and involved itself in every level of governance to a greater degree than any high court in the world. Because Barak views the main task of the Court as the protection of "rights," including those rights that it creates out of whole cloth, it sets the basic national norms in Israel to an extent without parallel in the world.
As retired Court President Moshe Landau puts it, Israeli Supreme Court justices are performing a task for which they were never trained (professionally or otherwise): "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."
Landau's comment cuts to the very heart of Barak's defense of the current judicial selection system – judges should be selected by professional expertise not ideology. But that is just Landau's point: the justices have no professional expertise to govern.
Another word for governing is politics. And in a democratic system, governance is ideally left to the elected branches of government. The greater the involvement of the Israeli Supreme Court in matters of governance and the determination of national norms the greater the argument for the involvement of the elective branches in the selection process.
Nor can it be argued that the Israeli Supreme Court is either ideologically neutral or representative. It is an easy matter to juxtapose pairs of cases, in which the differences in outcome can only be explained by the political perspective of the justices. The Court, for instance, frequently invokes the docrtrine of non-intervention in the conduct of foreign policy to justify not hearing petitions against illegal digging on the Temple Mount. But Justice Dalia Dorner found no such bar to ordering Prime Minister Binyamin Netanyahuv to reopen the Palestinian Authority's Jerusalem headquarters at Orient House in 1999.
"Too late," the same Dorner, told petitioners against the burial of Faisal Husseini on the Temple Mount, though his funeral procession was still hours away from Jerusalem. But the Court found no such bar to dealing with a petition against the expulsion of 415 Hamas members, even though they were already at the Lebanon border.
The classic case of these judicial antimonies came when the Israeli Supreme Court convicted Binyamin Kahane, hy"d, of incitement on the same day that the identical panel of the Supreme Court, with the same justice writing both opinions, reversed the incitement conviction of an Arab journalist, even though the latter’s remarks were far more likely to encourage violence.
Leaving the judicial selection process in the hands of a small group, dominated by the three Supreme Court justices on the committee, and far from the public eye, has resulted in a Court that is notoriously unrepresentative – a sort of self-perpetuating cult, in Professor Gavison's pithy description.
All people, even Supreme Court justices, it seems, feel more comfortable among like-minded sorts. That explains the current members' opposition to the appointment of Professor Gavison to the Court, despite her international stature as scholar of constitutional law. Yet being forced to clarify and defend one's ideas from attack is crucial to sharpening and refining them, as anyone who has ever learned with a good chavrusa knows.
The American system of "politicized" selection, in which there is almost invariably a mix of justices selected by both Republican and Democratic administrations, ensures an intellectual clash of rival judicial philosophies. Such clashes are almost totally absent on the Israeli Supreme Court.
In addition, the American system leads itself to shifts back and forth over time between one judicial approach and another. And that is crucial to ensuring democratic legitimacy. Legitimacy in a democratic system depends on citizens' recognition that the rules are such that if one's views do not prevail today, they may do so tomorrow. Shifts in the guiding judicial philosophy of the Israeli Supreme Court, similar to those that have characterized the American Supreme Court, are highly unlikely under the current self-perpetuating judicial selection system, under which the sitting justices select their successors.
In democracies the legitimacy of the high court depends on it being perceived, in the late Alexander Bickel's phrase, as the "least dangerous branch." A judicial system that tends to produce an ideologically homogeneous Court, whose very homogeneity reinforces a particular ideological bent, is the greatest threat to the Israeli Supreme Court's legitimacy.
Related Topics: Israeli Supreme Court
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