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Israel’s unique judicial selection method and its shortcomings

Why is Israel so far behind other Western democracies in its selection of top judges?

Israeli Supreme Court Chief Justice Esther Hayut arrives at the Supreme Court in Jerusalem on May 3, 2020, to hear a petition against the coalition agreement between the Blue and White and Likud parties. Photo: Oren Ben Hakoon/POOL.
Israeli Supreme Court Chief Justice Esther Hayut arrives at the Supreme Court in Jerusalem on May 3, 2020, to hear a petition against the coalition agreement between the Blue and White and Likud parties. Photo: Oren Ben Hakoon/POOL.
Shimon Nataf
Shimon Nataf

The subject of the selection method for Supreme Court justices in Israel has been a contentious issue in Israeli public discourse for over two decades. Prior to that, the subject was mostly a non-issue and no one considered it particularly worthy of public notice. However, beginning in the 1980s, the Court endeavored to dominate the Knesset and the government via various judicially-created mechanisms, most prominent among them the Constitutional Revolution of 1995. These developments brought the Court’s lack of accountability and uniquely undemocratic selection method into the public spotlight.

Since then, many attempts at reforming the process have been initiated, the most recent of them by opposition members in the current Knesset. The change proposed most often is to subject the selection of Supreme Court justices to the democratic process by entrusting it to the nation’s representatives in the government and the Knesset.

In response, supporters of the current selection regime call these proposals an attempt to “quash the independence of Israel’s Supreme Court” and even a “revolution.”

But is this really the case?

Judges and justices in Israel are selected by a designated Judicial Selection Committee comprised of nine members: two government ministers, two members of Knesset, two representatives of the Israel Bar Association and three Supreme Court justices, one of whom is the Chief Justice. Not only are elected representatives a minority on the panel, but a seven-member majority is needed for selecting a Supreme Court justice. This method gives the Supreme Court justices themselves veto power over the identity of their future colleagues, as no Supreme Court justice can be selected without the consent of current justices on the committee. Obviously, this judicial selection method is highly undemocratic.

The argument for reform is simple enough: The Israeli Supreme Court makes value-based judgements, and since 1995 has had the power to strike down legislation promulgated by the democratically-elected Knesset. Issues such as the legality of irredentist Arab political factions, broad economic and welfare policy, draft exemptions for ultra-Orthodox yeshiva students and even immigration policies have been repeatedly decided by the Court instead of elected institutions.

The current selection regime with its “carefully constructed, multifaceted nine-member committee,” might have made sense back in the year 1953 when it was introduced. At the time, the Court played a minimal role in the Israeli political arena, was subject to Knesset decisions and legislation and practiced judicial restraint. But the Court has dramatically changed since then. Since the 1980s and 1990s, the Court been on a path to extend its reach and authority.

With the Constitutional Revolution, the Court acquired the authority to strike down legislation with which it did not agree. Through the development of the “reasonableness” doctrine, which enabled the Court to set aside administrative actions for not being “reasonable” enough—replacing the agency’s discretion with its own—it effectively took control of all government activities and appointments. Using “objective purposive interpretation,” a new form of legal interpretation that enables the Court to give the law the meaning it “should” have, it gained the power to rewrite the law. Inevitably, its selection mechanism has become dangerously outdated.

Advocates for the existing regime have two main arguments: First, an apolitical judicial selection method is imperative for maintaining an independent judiciary. Second, the committee procedure ensures the professional capacity necessary for such a senior judicial position. However, if these arguments had any merit, one would expect Israel’s judicial selection method to be prominent, or at least common, among Western democracies. In reality, as demonstrated by an extensive research paper published by the Kohelet Policy Forum, which I co-authored with my colleagues Shai-Nitzan Cohen and Dr. Aviad Bakshi, the complete opposite is the case.

In 32 out of 38 OECD member countries, the judicial selection method is entrusted to democratically-elected institutions. In 10 countries, the procedure includes the combined choice of the legislature and the government; in seven countries, the legislature selects the judges alone; in 10 more countries, the government has exclusive authority over the issue; and finally, in five countries, a split model is practiced, where the elected institutions select the majority of judges, and thus the judges who are involved in selecting other judges have for the most part been selected by elected officials.

Only five other countries select their highest judges by a method that denies the public or its representatives a role in the process. These countries are the United Kingdom, Luxemburg, Colombia, Turkey and Greece. Since the courts in the U.K. and Luxemburg lack the authority to strike down legislation, the democratic deficit is minimal. Thus, unlike Israel, the elected officials maintain governmental supremacy over policy decisions. Therefore, the true number of countries on this list is only three. Could Turkey, Greece and Colombia be the only countries with a professional and independent judiciary? I believe the answer to that question is self-evident.

These findings are hardly surprising. Any conceivable definition of democracy would not include a system of government in which the last word on any policy issue is given to a completely independent and unaccountable institution. Supporters of Israel’s current selection regime try to portray reformers as “revolutionaries” and a “danger to Israel’s democratic regime.” But the evidence clearly proves otherwise. It is the reformers who aspire to elevate Israel’s democratic status to that of almost all leading Western democracies. They want to rebalance that which was thrown out of balance. It is, in fact, the supporters of the current regime who insist on making Israel an inferior democracy.

The truth is that the Israeli legal system is suffering from severe deficiencies. Its lack of checks and balances, judicial restraint or democratic accountability are unprecedented in their scale and depth. Its underlying principles and theory of government are in stark contrast with accepted liberal principles—in particular, the separation of powers. The legal system in Israel believes in a theory of “gatekeepers,” according to which some people know better than others what is just and good—not surprisingly, those people, according to the theory, are lawyers and judges—and must be given control over the government.

This underlying undemocratic theory has produced many of the judicial system’s unique maladies, such as the attorney general’s monopoly over government representation in courts and thus binding control of all government activities, the lack of any kind of oversight body for the state criminal prosecution apparatus, the internationally unique and unprecedented judicial control over administrative appointments and many other features that make Israel a one-of-a-kind system among Western democracies, and not for the better.

Many of these flaws can be traced back and attributed to our judicial selection method, and the unaccountable Supreme Court it created. Any attempt at curing the system’s many shortcomings must start by bringing Israel into the Western democratic club and its widely accepted judicial selection regime.

Shimon Nataf is an Israeli lawyer and constitutional law scholar.

The opinions and facts presented in this article are those of the author, and neither JNS nor its partners assume any responsibility for them.
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