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Currently, all Israeli judges are chosen by a nine-member committee comprised of the Supreme Court president plus two Supreme Court justices of his choice; the justice minister and another minister chosen by the cabinet; one coalition and one opposition MK, chosen by the Knesset; and two representatives of the Israel Bar Association, chosen by the Bar. The law requires candidates to meet minimal formal requirements; beyond that, the committee has full discretion.
Literally dozens of bills to change various aspects of this system are on the Knesset’s agenda this term. Some are trivial, such as three proposals to change the way the Supreme Court president is chosen (currently, the longest-serving justice automatically becomes president). Some are pernicious, such as Yuli Tamir’s proposal to add two retired district court presidents and two law-school deans to the appointments committee, thereby further increasing its domination by the judiciary and the legal profession. Others are actually steps in the right direction: Another Tamir bill, for instance, would require public hearings before the committee for all Supreme Court candidates, thereby acknowledging, for the first time, that a justice’s judicial philosophy is a legitimate public concern; and several bills would alter the committee’s composition to give the public’s elected representatives parity with, or even a slender majority over, the unelected members (who are currently the majority), thereby marginally increasing their influence.
All, however, fail to solve the real problem: a selection process dominated by the judiciary itself, which produces a dangerous ideological conformity on the bench, and particularly on the Supreme Court.
This system is unique to Israel. In most Western democracies, the legislative and executive branches choose Supreme Court justices, at least, and the judiciary and the legal profession have no say in the process. In America, for instance, the president appoints justices and the Senate confirms them. In Germany, the upper and lower houses of parliament each select half the justices. In Austria, the government and parliament each appoint half. In France, the president appoints nine of the 15 justices, while the heads of the two houses of parliament appoint three each. In Switzerland, parliament selects the justices; in Sweden, the cabinet does. In Australia, Canada, Belgium and Norway, justices are appointed by the monarch but either nominated or approved by the cabinet. In Japan, the cabinet appoints the justices and the electorate must ratify its choices in the next election.
THIS UNIVERSAL insistence on entrusting Supreme Court appointments to elected representatives is no accident. Standard democratic theory holds that the people ought to have a say in choosing those who govern them, and since supreme courts must occasionally rule on important political and social issues, justices are included in this category.
Perhaps even more importantly, however, there is very rarely one “right” answer to complex questions of legal interpretation; different judges with different legal philosophies often reach different conclusions. That is precisely why many verdicts are split decisions. But if there is no one “right” answer, a spectrum of opinion on the court becomes essential.
A democratic selection process achieves this goal, since control of the legislative and executive frequently changes hands, and different parties usually prefer candidates with different views. A selection process dominated by the judiciary, in contrast, perpetuates ideological uniformity, since sitting justices, being only human, naturally prefer candidates who share their own views. That, in turn, produces one of the most dangerous situations possible in a democracy – one in which certain sectors of the public feel permanently disenfranchised, because a key branch of government is effectively closed to people who share their views.
Defenders of Israel’s system like to argue that legislatures and executives are liable to pack courts with incompetent cronies, whereas an “apolitical” committee will focus solely on quality. Yet in fact, the opposite is true, as two recent American Supreme Court nominations once again demonstrated. When George W. Bush nominated John Roberts, who is widely acknowledged as a brilliant jurist, the appointment sailed through. But when he nominated Harriet Miers, a political crony, his own base – Republican senators and conservative columnists – assailed her professional qualifications, forcing her to bow out to avoid a humiliating rejection by the Senate.
Israel’s “apolitical” committee, in contrast, is free to appoint cronies, precisely because most of its members need not answer to anyone for their choices. Thus our Supreme Court currently consists largely of legal mediocrities – whereas the panel has repeatedly rejected nominees such as Professor Ruth Gavison, who is widely acknowledged as one of Israel’s top legal thinkers, merely because she opposes the current reigning philosophy of judicial activism.
IT IS indeed encouraging that so many MKs have started to realize that something is wrong with Israel’s judicial appointments process. Yet even the most radical proposed reforms – those that seek to reduce the judiciary’s dominance over the process by adding ministers or MKs to the selection committee – would in practice leave that dominance intact. This is partly because the politicians, being comprised of both coalition and opposition representatives, are usually divided, whereas the judicial-legal bloc is generally united. Even more important, however, is the committee’s tradition of deferring to the justices’ wishes, which makes the numbers irrelevant.
The appointment process will therefore remain problematic until MKs are willing to introduce a truly radical reform: one that would bring Israel into line with the rest of the democratic world by removing the judiciary and the legal profession from the process entirely and entrusting the job instead to the people’s elected representatives.
The writer is a veteran Israel-based contributor to these pages.
Under this policy, every government since 1967 has forbidden Jews to pray on the mount, even though it is Judaism’s holiest site; some have even forbidden Jews to set foot there. The reason for the ban on Jewish worship – which was reaffirmed by the Sharon government just last week, when it successfully persuaded the High Court of Justice to amend a “slip of the pen” in a recent ruling because it could be interpreted as authorizing Jewish prayer on the mount – is fear that it might spark Arab rioting.
That argument seems dubious in and of itself, since at other volatile sites, such as Machpela (the Cave of the Patriarchs) in Hebron, successive governments have enabled Jewish worship to take place despite Arab objections simply by stationing enough troops there. Far worse, however, are the ramifications of this policy for future diplomatic negotiations over Jerusalem.
Most Israelis – rightists, centrists and even moderate leftists – want Israel to retain the Temple Mount under any final-status agreement with the Palestinians. And a priori, Israel’s claim is strong: The mount is Judaism’s holiest site, compared to Islam’s third holiest; it is the site toward which Jews have prayed for over 2,000 years, whereas Mecca holds this honor for Muslims; it is referenced hundreds of times in the Bible, yet not at all in the Koran.
But the consistent refusal of all Israeli governments to permit Jewish prayer on the mount eviscerates Israel’s claim by making it look like pure dog-in-the-manger: The Jews do not actually want to use the mount for worship themselves; they merely want to prevent Palestinian Muslims – who do worship there regularly – from having it.
And why should the international community sympathize with such selfishness? Moreover, this policy is equally destructive for Israel’s claim to the rest of east Jerusalem. Israel, after all, has no conceivable interest in Arab neighborhoods such as Shuafat or Beit Safafa; its claim rests entirely on the fact that east Jerusalem contains the heart of the ancient Jewish kingdom – the Temple Mount and the City of David – and is therefore the historic heart of the modern Jewish state. But if Israel cares so little about these historic roots that no Israeli government has caviled at banning Jewish worship on the mount, and some have even barred Jews from ascending the mount entirely, it is hard to blame the international community for not treating Israel’s historic claim very seriously.
THUS WHILE most Israeli governments for the past 38 years have been either rightist or center-left, all, without exception, have in fact served the policy of the far Left – which wants east Jerusalem and the Temple Mount to be given to the Palestinians.
The ban on Jewish worship on the mount has many other deleterious consequences as well. First, it undercuts the fight against anti-Semitism: How can Jews credibly protest violations of Jewish rights overseas when the Jewish state has barred Jews from worshiping at their holiest site for 38 years without eliciting a peep from the international Jewish community? Second, it undermines respect for the rule of law in Israel by making a mockery of the law that guarantees freedom of access to the holy sites for all faiths. And third, it encourages Arab violence by showing that such violence (or the threat thereof) achieves results.
But what makes this short-sighted policy even more ridiculous is that it has not even achieved its stated goal of preventing Arab rioting: Muslims on the mount have repeatedly stoned Jews praying at the Western Wall below or attacked Israeli policemen guarding the area. This in turn has forced Israel to maintain a large and expensive security presence around the mount. Thus in practice, the security situation at the Muslim-only mount is no better than at Machpela, where Jews and Muslims worship side by side.
Indeed, Machpela is living proof that Jews and Muslims can share a holy site. On most days, Jews and Muslims pray in separate chambers of the cave; on certain religious holidays, it is open exclusively to either Jews or Muslims. And by and large, this arrangement works. There has, admittedly, been occasional violence, but no more so than at the Muslim-only mount; and while the arrangement requires a large security presence, this has proven equally necessary at the Muslim-only mount.
In fact, joint worship on the mount would be easier than at Machpela, because on the mount, unlike at Machpela, the two faiths do not seek to pray at the exact same spot. All rabbis agree that under Jewish law, the actual site of the Temple is currently off-limits to Jews, and since its precise location is unknown, the ban extends to any place where it might have stood – which includes the site of the two mosques. Thus the only sections of the mount that any rabbi has deemed appropriate for Jewish worship are peripheral areas such as Solomon’s Stables or a strip behind the Western Wall.
As opposition leader, Ariel Sharon seemed to understand the importance of a Jewish presence on the mount. Since becoming prime minister, however, he has preferred to mouth empty slogans about united Jerusalem being Israel’s eternal capital while continuing a policy toward the mount that virtually precludes such an outcome.
Unfortunately, neither he nor his successors are likely to alter this policy unless that majority of Israelis who do care about Jerusalem’s future make it clear that they will no longer accept a ban on Jewish worship on the mount.
Earlier this month, the US agreed to finance a study on various options for creating such a connection; the study is due to be completed by January. But the two leading options appear to be the World Bank’s proposal for a sunken road between Gaza and the West Bank and Prime Minister Ariel Sharon’s proposal for a railroad between them.
Either option creates obvious security problems. While border crossing arrangements between Gaza and Egypt have still not been finalized, Israel will certainly exercise much less control over who and what enters Gaza than it did before the disengagement. Thus if the Palestinians are allowed to move people and goods from Gaza to the West Bank with a similar lack of Israeli interference, Israel will have no way of preventing a massive flow of arms and terrorists via Gaza to the West Bank. Sharon’s willingness to countenance such an idea while violence still rages in the West Bank therefore seems grossly irresponsible.
But beyond the security implications, both options have something else in common: Either the road or the railroad would run straight through the Negev, effectively slicing Israel in two. The physical connection between northern and southern Israel would be reduced to a series of overpasses spanning the West Bank-Gaza link.
Even if the security problem could somehow be solved, for Israel to agree to cut itself in two in the absence of a comprehensive peace treaty would constitute a major concession that ought to be conditioned on a suitable quid pro quo. But what makes the idea particularly outrageous is the world’s hypocrisy over this issue: While the international community views a few overpasses as a sufficient link between northern and southern Israel, it has adamantly rejected Israel’s contention that a similar link is sufficient between the northern and southern West Bank.
THIS HYPOCRISY has been particularly evident in the world’s reaction to an Israeli plan to link Ma’aleh Adumim, the largest West Bank settlement, with Jerusalem by building some 3,500 apartments along a narrow corridor known as E-1. Despite Sharon’s repeated pledges that disengagement would enable Israel to strengthen its hold on the West Bank settlement blocs, the government has thus far not even dared to submit this plan to the zoning board, much less actually start work, due to vehement opposition from the international community, and particularly the US.
The world’s argument is that since Ma’aleh Adumim lies about half the width of the West Bank from Jerusalem, Israel’s proposal would effectively cut the West Bank in two, forcing Palestinians to make a wide detour east of Ma’aleh Adumim in order to travel between the northern and southern West Bank. Sharon’s response is that this problem could be solved by building tunnels or overpasses under or over E-1 to create a transportation link between the northern and southern West Bank – a link identical to the one that the international community has proposed between northern and southern Israel.
But it turns out that in the world’s eyes, what is good enough for Israel is not good enough for the Palestinians. Even the Bush administration – the same administration that, according to Sharon, agrees that Ma’aleh Adumim should remain part of Israel under any final-status agreement – has adamantly rejected Sharon’s idea; so, needless to say, has the rest of the international community. As far as the world is concerned, Israel can make do with a mere transportation link between its northern and southern halves – but the Palestinians must enjoy full territorial contiguity between the northern and southern West Bank.
IF SHARON were serious about leveraging the disengagement to strengthen Israel’s hold on the settlement blocs, the Israeli response to this hypocrisy should be obvious: Jerusalem will not agree to a West Bank-Gaza link that reduces the connection between northern and southern Israel to a series of overpasses unless the Palestinians and the international community agree to similar links between Israel and the major West Bank settlement blocs, with the connection between various parts of the West Bank being similarly maintained via tunnels and/or overpasses. In practice, this means at the least allowing Israel to enclose such connecting corridors within the security fence – a project that, due to international opposition, has remained a dead letter despite Sharon’s repeated declarations of intent to execute it.
However, Sharon has made no such demand for reciprocity – just as he has not built the fence around the settlement blocs, authorized large-scale construction within the blocs or taken any other concrete step to strengthen Israel’s hold on them. Instead, he agreed to the principle of the West Bank-Gaza link without a murmur; his only request is that the link take the form of a railroad rather than a road.
Due to the grave security implications of the West Bank-Gaza link, Israel must condition actual construction on an end to the violence – which, as Sunday’s terror attacks made clear, is not yet in sight.
But since discussion of this link has already begun, a diplomatic campaign for eventual reciprocity on this issue should be launched now. Jerusalem must make it clear that if mere “transportation contiguity” is sufficient between northern and southern Israel, it is equally sufficient between the northern and southern West Bank.