Justices as Technocrats
by Jonathan Rosenblum
July 29, 2005
The expected battle royale in the United States Senate over the nomination of John Roberts (or subsequent Bush nominees) to the Supreme Court, will doubtless be widely cited as proof of the superiority of Israel's "non-political" system of judicial selection. That system is dominated by the three sitting Supreme Court justices on the nine-person judicial selection committee.
Our system of judicial selection, Court President Barak is found of saying, produces a high court that is "professional" rather than "political." By that he means that the justices are both more technically competent and less ideological. Neither claim is credible.
No candidate as ethically-challenged as Edna Arbel, for instance, could have survived the rigorous public scrutiny to which judicial nominees are subjected in America. As State Attorney she was twice accused of soliciting positions for her husband from political figures under investigation by her office, and she signed off on the trumped up indictment used to get rid of Yaakov Neeman as Justice Minister.
With the exception of Barak, no Israeli jurist enjoys an international reputation. And the candidacy of the foremost constitutional scholar to be put forward for the Court, Professor Ruth Gavison, is bitterly opposed by the justices on the judicial selection committee.
Jeffrey Rosen of the liberal New Republic describes Roberts, by contrast, as "perhaps the most impressive Supreme Court advocate of his generation, extremely intelligent, thoughtful and able." Most of the justices on the United States Supreme Court have articulated philosophies of constitutional adjudication, and those philosophies were well-known, based on their extensive legal writings, before their elevation to the Supreme Court. The same cannot be said of any Israeli justice, except perhaps Barak and Mishel Cheshin.
So much for the supposed technical superiority of Israel’s justices.
The ideal of justices as technocrats is similarly a myth: There's no such animal. And no one knows this better than Barak. In his book Judicial Discretion, Barak writes that a judge's decision, in difficult cases, will be "determined by [his] worldview," which is, in turn, is a product of his "education, personality, and emotional makeup." While a judge should be guided in such cases by the values of the societal elites – "the enlightened public in whose midst he sits" – it can be assumed, Barak candidly admits, that he will take himself as the measure of enlightenment.
The Israeli Supreme Court is not apolitical in any sense of the term. By subjecting every governmental decision the test of "reasonableness" in its eyes, the Court has involved itself in Politics, with a capital "p", – i.e., the process of governance – to a greater extent than any Court in the world. "The justices . . . see themselves more or less as governing elders," says former Court President Moshe Landau. "They have taken on a role they are utterly incapable of fulfilling, and for which they have not been trained."
Justice Landau's remark cuts to the heart of Barak's defense of the present judicial selection system on the basis of the professional expertise of the justices. Even if they were great experts of contracts and torts, little of their work deals with such traditional legal subjects. And as governing elders, their legal expertise is no more relevant than would be the psychometric scores of the national soccer team.
In democracies, governance is properly left to the political/elected branches of government precisely because the issues involved are not value free, technical decisions. 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.
Nor has our system of judicial selection resulted in a Court that is non-political, in the sense that the justices have no identifiable ideological tendencies. It is child's play to identify pairs of decisions in which the different results can only be explained by the identity of the parties.
The Israeli Supreme Court is characterized by a high degree of homogeneity, both in political and judicial philosophy. That homogeneity is perpetuated by a system that allows the justices to keep those with different judicial approaches, such as Professor Gavison, off the Court. Even Supreme Court justices, it seems, are more comfortable being surrounded by others of a like mind.
The "politicized" judicial selection system in America, in which there is almost always a mix of justices nominated by Republican and Democratic administrations, on the other hand, ensures a constant clash of rival judicial philosophies. That clash forces justices to sharpen and refine their own arguments.
In addition, the American system of judicial selection preserves the democratic legitimacy of the U.S. Supreme Court by assuring shifts, over time, in the predominant judicial philosophy of the Court. Legitimacy in a democratic society depends on citizens' perception that the playing field is level, and that if their ideas do not prevail today they may do so in the future. The self-perpetuating Israeli system is the antithesis of that level playing field.
Ironically, the system of judicial selection championed by Justice Barak is one of the greatest barriers to acceptance of a written constitution, of which he is such an ardent proponent. Constitutions typically contain a large number of abstract, 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.
Related Topics: Israeli Supreme Court
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