Analysis from Israel
Justices essentially select their own replacements. What’s needed is radical reform.

Sunday’s High Court of Justice ruling on the amended Citizenship Law mandates urgent action by the government. The critical task is not drafting new immigration legislation, though this, too, is necessary, since the current law expires on June 30, and the court clearly indicated that it would not approve a lengthy further extension. Rather, it is reforming the judicial selection process – because without this, the government will be unable to enact any immigration legislation.

Ostensibly, Sunday’s 6-5 ruling upheld the current law, which bars Palestinians below a certain age from immigrating on the grounds that the Palestinian terror war against Israel makes them security risks. Yet in fact, six of the 11 justices declared the law “unconstitutional,” saying it unacceptably infringed on Arab Israelis’ right to marry Palestinians and live with them in Israel rather than elsewhere. The only reason Justice Edmond Levy sided with the majority in declining to annul the law was that since it expires imminently, he considered it sufficient to inform the Knesset that absent major changes, the court will overturn it next time.

In other words, a majority of the court declared that the government has no right to bar immigration from hostile areas during wartime – something almost every other Western democracy does, and a key element of the government’s proposed comprehensive immigration bill – because the individual’s “right” to live with a non-Israeli spouse in Israel takes precedence over the state’s right to protect seven million other citizens against terrorism.

Moreover, having accorded this “right” – which appears nowhere in any Knesset legislation – supremacy over laws actually passed by the Knesset, the justices are equally unlikely to approve the other elements of the proposed immigration reform.

The proposal calls for bringing Israel’s policy into line with the European trend by imposing various restrictions on immigration through marriage, including quotas, age restrictions and means tests.

Yet on what grounds could the court approve such harsh restrictions on a “right” that it has already declared trumps competing considerations such as security? Justice Minister Haim Ramon’s proposed solution is to enact the reform not as ordinary legislation, but as a Basic Law. This, according to the court’s own rulings, would grant it constitutional status, thereby barring the justices from declaring it unconstitutional. Yet in fact, even this might not suffice – because, in a breathtaking pronouncement in last week’s ruling on the Tal Law, Supreme Court President Aharon Barak asserted that the court could even overturn a Basic Law if the justices deemed it contrary to Israel’s Jewish and democratic character.

This is a power grab of gargantuan proportions. After all, the entire justification for the court’s “right” to overturn Knesset legislation was its assertion that the Basic Laws had constitutional status, and ordinary legislation that contradicted them was therefore unconstitutional. That assertion was dubious in itself, given that the Basic Laws underwent no constitutional ratification process and were approved by a mere quarter of the Knesset.

YET NOW, Barak has declared that the court is even authorized to overrule the “constitution”!

Given all this, it is clear that neither immigration restrictions nor any other policy disliked by the justices has any chance of being upheld by the current court. However, the government currently has a rare chance to significantly alter the court’s composition: Four of its 14 seats are now vacant, and a fifth will open shortly, when Barak retires. That is enough to create a solid majority that would uphold immigration reform, and even a sizable bloc that would favor less judicial intervention in policy in general.

However, this is possible only if the judicial selection process is radically overhauled – because today, the justices essentially select their own replacements, so any new appointees will almost certainly share the current majority’s views.

Currently, new justices are chosen by a nine-member panel consisting of two ministers, two Knesset members (one coalition and one opposition), two Bar Association representatives and three sitting justices, including the court president. This structure would inevitably let the justices dominate the process even without the ironclad tradition whereby other panel members defer to them: The justices, chosen by the court president, consistently follow his lead; the elected officials are divided, coalition-opposition; and the Bar representatives are reluctant to antagonize justices who will decide their future cases.

The result is that never has a new justice been chosen over the sitting justices’ objections, and only rarely have the justices’ candidates been rejected.

Moreover, both Barak and his designated successor, Dorit Beinisch, belong to the court’s radical wing: Both voted to overturn the existing Citizenship Law; both hold extremely expansive views of the court’s right to overturn government policy in general; and both openly oppose the appointment of anyone who believes that the court should show more deference to the elected government. A selection panel dominated by either one is therefore certain to appoint justices with similarly radical views.

THUS IF the government is to have any hope of enacting immigration reform – or any other policy frowned on by the current justices – it must reform Israel’s judicial selection process to bring it into line with those of other Western democracies.

In other democracies, the appointment of justices is left entirely to the executive and legislature; the justices themselves have no say in the matter. And this is essential to maintain a proper balance between the three branches of government. Otherwise, the enormous power that the court derives from being the ultimate arbiter of legality, combined with the justices’ complete independence once appointed (since they receive lifetime tenure, they need not curry favor to retain their positions), would leave the elected branches powerless against the justices’ whims.

That is precisely the situation in Israel today: When the court denies the elected government the ability to set policy on an issue as fundamental as immigration – based on a self-created “right” anchored in no law whatsoever – the balance of power is clearly grossly skewed in the court’s favor.

But only by radically reforming the judicial selection system can this imbalance ever be corrected.

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Why Israel Needs a Better Political Class

Note: This piece is a response to an essay by Haviv Rettig Gur, which can be found here

Israel’s current political crisis exemplifies the maxim that hard cases make bad law. This case is desperate. Six months after the coronavirus erupted and nine months after the fiscal year began, Israel still lacks both a functioning contact-tracing system and an approved 2020 budget, mainly because Prime Minister Benjamin Netanyahu is more worried about politics than the domestic problems that Israel now confronts. The government’s failure to perform these basic tasks obviously invites the conclusion that civil servants’ far-reaching powers must not only be preserved, but perhaps even increased.

This would be the wrong conclusion. Bureaucrats, especially when they have great power, are vulnerable to the same ills as elected politicians. But unlike politicians, they are completely unaccountable to the public.

That doesn’t mean Haviv Rettig Gur is wrong to deem them indispensable. They provide institutional memory, flesh out elected officials’ policies, and supply information the politicians may not know and options they may not have considered. Yet the current crisis shows in several ways why they neither can nor should substitute for elected politicians.

First, bureaucrats are no less prone to poor judgment than politicians. As evidence, consider Siegal Sadetzki, part of the Netanyahu-led triumvirate that ran Israel’s initial response to the coronavirus. It’s unsurprising that Gur never mentioned Sadetzki even as he lauded the triumvirate’s third member, former Health Ministry Director General Moshe Bar Siman-Tov; she and her fellow Health Ministry staffers are a major reason why Israel still lacks a functional test-and-trace system.

Sadetzki, an epidemiologist, was the ministry’s director of public-health services and the only member of the triumvirate with professional expertise in epidemics (Bar Siman-Tov is an economist). As such, her input was crucial. Yet she adamantly opposed expanding virus testing, even publicly asserting that “Too much testing will increase complacence.” She opposed letting organizations outside the public-health system do lab work for coronavirus tests, even though the system was overwhelmed. She opposed sewage monitoring to track the spread of the virus. And on, and on.

Moreover, even after acknowledging that test-and-trace was necessary, ministry bureaucrats insisted for months that their ministry do the tracing despite its glaringly inadequate manpower. Only in August was the job finally given to the army, which does have the requisite personnel. And the system still isn’t fully operational.

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