Courting bad judgment

Judging by the plethora of bills on the subject that have been placed on the agenda of the Knesset’s winter term, many MKs sense that something is wrong with Israel’s judicial appointments process. Unfortunately, all of the proposed amendments are mere cosmetic changes that would do nothing to solve the real problem.

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.