Judges as technocrats - don’t believe it

The expected battle royale over President Bush's nomination of John Roberts to the United States Supreme Court will doubtless be cited in Israel as proof of the superiority of our system of judicial selection by a panel of nine, including three sitting justices of the Supreme Court.

Court President Aharon Barak constantly extols our system for producing a "professional" rather than a "political" Supreme Court. By professional, he means both more competent and more ideologically neutral than a high court selected in a more openly political process. Both claims are unsupportable.

No candidate as mediocre and ethically-challenged as Edna Arbel, for instance, could have survived the rigorous public scrutiny to which judicial nominees are subjected in America. And the qualifications of all but justice Barak pale besides those of Roberts, who was first in his class at Harvard Law School and managing editor of the Law Review. Roberts is viewed as one of the top appellate advocates of his generation and a brilliant legal stylist.

Furthermore, Barak knows that the vision of the judge as a value-free technocrat is a myth. In Judicial Discretion, he writes of the values that shape a judge's decision in difficult cases – i.e., the public policy decisions that most often face the Supreme Court. The judge should be guided, he argues, by the values of the "enlightened public," but he cheerily admits that most will think no further than themselves in determining what is enlightened.

Little of the Israeli Supreme Court's workload is taken up with traditional legal subjects such as torts and contracts. Rather the Court has busied itself with governance by subjecting every governmental decision to its test of reasonability. As retired Court President Moshe Landau puts it: "[The justices] have taken on a role they are utterly incapable of fulfilling, and for which they have not been trained; they were trained to judge not to govern."

Their legal background is nearly as irrelevant to their ability to govern as psychometric scores would be to the selection of the national soccer team.

In a democracy, governance is properly left to the elected branches of government precisely because the issues involved are not value free, technical decisions. Yet no high court in the world determines national norms or enters into complex policy decisions to the same degree as our Supreme Court. The judicial interventionism of the Israeli Supreme Court only makes the necessity of the involvement of the elected branches in the judicial selection process that much greater.

The present selection system has hardly resulted in a non-ideological Court. It is child's play to identify pairs of decisions – some even decided by the same panel on the same day – in which the different results can only be explained by the identity of the parties. Indeed the present system, which is dominated by the three sitting justices, has resulted in a Court that is unrepresentative of the values of Israeli society and self-perpetuating.

By contrast, the "politicized" system in America, in which there is almost always a mix of justices nominated by Republican and Democratic administrations, ensures a clash of rival judicial philosophies. Such intellectual clash is anathema to our justices – witness their attitude towards the candidacy of Professor Ruth Gavison, an internationally recognized constitutional scholar.

The American system leads to shifts back and forth over time between rival judicial philosophies. In the process, the key to legitimacy in democratic societies is preserved – citizens' feeling that there is a level playing field such that even if their ideas do not prevail today they may do so in the future.

Ironically, the current Israel system of judicial selection is one of the greatest bars to further constitutional development in Israel. Constitutions typically contain a large number of abstract, but laden value terms. So long as those terms are left to be interpreted by a self-selected and self-perpetuating Court, a large swath of the public will continue to oppose a written constitution.