Former Supreme Court President Esther Hayut (center) arrives for a hearing in Jerusalem, Dec. 8, 2022. Photo by Olivier Fitoussi/Flash90.
Former Supreme Court President Esther Hayut (center) arrives for a hearing in Jerusalem, Dec. 8, 2022. Photo by Olivier Fitoussi/Flash90.

Israel’s reformers look to US as model for selecting judges

Judges control the process in Israel. Reformers say that leads to groupthink.

Israel’s government wants to adopt a system of selecting judges more in keeping with the American model, which means politicians will be in charge. It’s a key element of the coalition’s judicial reform plan.

Currently, judges in Israel are chosen by a Judicial Selection Committee made up of three Supreme Court judges, two government ministers, two Knesset members, and two lawyers from the Israel Bar Association.

As seven of the nine members are needed to approve a candidate, and the three judges vote as a bloc, they have veto power over nominees. Given that the lawyers typically vote with the judges, the judges also end up with a solid majority.

Judges in effect appoint themselves, “which does not happen in any other democracy in the world. Many people who do not define themselves as supporters of the reform believe that various fixes need to be made on this issue,” Israeli Prime Minister Benjamin Netanyahu said in a March 23 national address defending judicial reform.

Russell Shalev, an attorney in the legal department of the Kohelet Policy Forum, a Jerusalem-based think tank that helped draft the government’s legislation, said that the judges’ veto leads to homogeneity—judges who think alike.

“Judges who don’t come from the same milieu, or who are independent thinkers, bold thinkers who want to challenge the system with new paradigms, don’t have any chance of being advanced. That’s why it’s important to give the public the ability to appoint judges that represent them, that represent a wide array of viewpoints,” he said.

Another problem is the lack of transparency. In the United States, the president nominates a candidate for the federal bench, who is then vetted by the Senate Judiciary Committee, with the nominee meeting individually with the committee members to convince them of the merits of his or her candidacy, following which the nominee goes through public, often-bruising Senate Judiciary Committee hearings. The committee then submits its recommendation for a full vote in the Senate. A simple majority of the 100 senators is necessary for confirmation.

A way to maintain control

In Israel, in contrast, “politicians have almost no time to actually speak with the candidates,” Shalev said. Indeed, the Supreme Court president has in the past ordered candidates not to meet with political members of the Judicial Selection Committee. “It’s a way to maintain control.” (To address this, the reform calls for public hearings.)

Opponents of reform argue that putting politicians in charge will politicize the process. Judges will be chosen based on their political views and not their abilities. Opposition leader Yair Lapid said last week at a meeting of his Yesh Atid Party, “If they [the coalition] control the justices, there is no separation of powers. There is no independent judiciary. Israel is not a democracy.”

Said Shalev, “There’s a claim that if the government is going to appoint judges, they’re going to seek to please the government. But, today in Israel, it’s almost impossible for lower court judges to be appointed to the Supreme Court without pleasing their superiors. Think about what that means in terms of judicial independence.”

Shalev said it’s important to stress that giving power over judicial selection to elected officials isn’t an American invention. “Kohelet did an extensive study and we found that in 31 of 35 leading democratic countries, the elected officials, whether it’s the government or the parliament, select the Supreme Court or constitutional court judges.”

Preposterous notion

Eugene Kontorovich, director of international law at Kohelet, told JNS: “The notion that having elected governments fill judicial vacancies is undemocratic is preposterous, as it is how most democracies function. What makes judges independent is their not being able to be fired, not how they are selected. No one thinks RBG [U.S. Supreme Court Justice Ruth Bader Ginsburg] was a political hack because she was appointed by a Democratic president.”

Referring to a public debate last week over whether the Supreme Court has the authority to strike down laws regarding judicial selection, Kontorovich said: “The suggestion that judges can actually veto legislation dealing with the system of judicial appointments—that they can decide not just on the constitutionality of laws but on how they are picked—would make a mockery of the rule of law, defy all notions of separation of powers, and cause a deep constitutional crisis. There are legitimate debates about the best way to pick judges—through elected officials, as in most democracies, or by professional committees, as in some. But in no democracy is that choice left to the judges themselves.”

Amichai Cohen, a senior fellow at the Israel Democracy Institute and a member of the law faculty at Ono Academic College in Kiryat Ono, near Tel Aviv, opposes judicial reform, telling JNS that changes to the Judicial Selection Committee aren’t necessary as the Supreme Court’s composition is already changing under the current system.

“I understand that the court has been viewed as intervening too much in politics and taking views that are more to one side,” Cohen said. “Even if this was true a decade, or 15 years, ago, the composition of the court has changed towards a more moderate court. And within the current system, it will continue to change and move towards more conservative views.

“Within the court right now, there are, out of the 15 judges, at least four who could be termed conservative to moderately conservative. And two judges will be selected this coming October as two liberal judges are retiring.”

Jerome M. Marcus, an American lawyer who has written extensively on Israel’s legal reform, disagrees, telling JNS that while it’s true that former Justice Minister Ayelet Shaked succeeded in getting a few judges on the Supreme Court “who were to the right of the 50-yard-line” under the current system, “it wasn’t enough to make a difference.”

Marcus adds that what supporters of the current system overlook is that, unlike in the U.S. system, where the Supreme Court’s full bench sits on cases, that’s not how it works in Israel, where smaller panels of judges hear cases.

“Who decides who makes up the panels [in Israel]? The chief justice decides. She can make any case come out any way she wants just by deciding who’s going to decide it and how many justices are going to decide. You can put one conservative justice on a panel of three and still decide the case.”

When it comes to striking down legislation, the reform attempts to address this problem by requiring all 15 Supreme Court justices to sit in on cases involving the “constitutionality” of laws, with a large majority (11 or 12 justices out of 15) needed to overturn any legislation.

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