Israeli Justice Minister Yariv Levin and former Justice Minister Gideon Sa’ar recently unveiled a revamped proposal for the reform of the Israeli judiciary, including the Judicial Selection Committee. Predictably, opponents of any changes accused the authors of “undermining judicial independence, separation of powers, and checks and balances.” As before, it appears that opponents either do not understand what “judicial independence” and “separation of powers” mean, or, worse yet, they do understand it, but purposefully attempt to mislead the public. The Levin-Sa’ar proposal does nothing to undermine judicial independence, and it improves (albeit, not by much) the separation of powers, and the checks and balances.
Let’s begin with “judicial independence.” Judicial independence means that judges, once appointed, will be able to decide cases according to the law and answerable only to their conscience and God. In other words, an “independent” judge is one who does not have to fear being fired or having his salary diminished as a result of rendering an unpopular decision. Nothing in the Levin-Sa’ar proposal impairs this understanding of judicial independence. The proposal does not give Israel’s political actors the ability to remove judges who rule against powerful interests or to diminish their salaries. If Israeli judges are independent in their decision-making today, they will remain equally independent under the proposal.
Critics assert that giving political actors more control over judicial appointments will undermine judicial independence. But “judicial independence” has nothing to do with who gets appointed or how they get there. Until someone is appointed, he is not a judge, and the “judicial independence” doctrine has no applicability to them. The critics say, however, that if lawyers know they were appointed because of political deals, they will attempt to repay those political favors by consistently ruling in favor of the government.
The problem with that argument is two-fold. First, there is no evidence for such an assertion. For example, in the United States, federal judges are appointed exclusively by political actors, yet once appointed, they consistently rule against their benefactors. For example, all three U.S. Supreme Court justices appointed by President Donald Trump during his first term in office rejected his claims regarding the 2020 election. Similarly, both justices appointed by then-President Bill Clinton rejected his attempt to evade a civil lawsuit by Paula Jones.
In Israel, much the same is true. For example, there were fears that Avichai Mandelblit, once appointed attorney general, would be too subservient to Israeli Prime Minister Benjamin Netanyahu because of his prior political roles in Netanyahu’s government. The exact opposite happened—Mandelblit was so independent that he (rightly or wrongly) indicted the prime minister. Similarly, when then-Justice Minister Ayelet Shaked pushed for the selection of now-Justice Alex Stein, the critique was that would not be independent because he was a “political choice.” Yet, Stein has consistently ruled against the Netanyahu government.
The second reason that the critics are wrong is the unwarranted assumption that, under the current system, potential candidates for judicial nominations need not curry favor with anyone and are appointed on an “objective” basis. It is somewhat naive to believe that only “political” members of the Judicial Selection Committee care about politics, and other members care only about “professionalism.”
The Israeli Bar Association members have views, whatever they may be, as to politics and judicial philosophy. So do the judges who are the members of the selection committee. Anyone hoping to be appointed to a judgeship needs to be politically “in tune” with those members of the committee. Meaning, if it’s true that judges selected by politicians will be forever obligated to those politicians, then it is equally true that the judges selected by members of the bar will be obligated to those factions in the bar, and judges selected by the chief justice will be obligated to that chief justice. And if the latter is not true, neither is the former.
Looking at the “separation of powers” and “checks and balances,” the Levin-Sa’ar proposal marginally improves the situation at hand. Again, “separation of powers” does not mean each branch operates independently of each other. If that were so, no government could operate, because actions of one branch would not affect another. What separation of powers means is that the judicial branch should be doing the judging, the Knesset the law-making and the Cabinet should be executing those laws.
The current judicial selection system is the exact opposite of the separation of powers. The powers of the Israeli Supreme Court, the Cabinet and the Knesset are intermingled together, instead of making their own best judgment about the appropriate way forward having to compromise with every other branch. (Not that there is anything wrong with compromise per se, but the system doesn’t “separate” the powers, and, if anything, undermines judicial independence because the court’s representatives have to offer something of value to the politicians for politicians to agree to some of the court’s proposed candidates).
The same with “checks and balances.” To be clear, “checks and balances” are important in a democratic country, and there is nothing necessarily wrong with the concept of judicial review even in a parliamentary system. Under the current system, the court certainly serves as a “check” on the government. (Some may say too much so). But what serves as a check on the court? In the American system, appointments by a popularly elected president with confirmation by the U.S. Senate provide some long-term checks. In Spain, four out of 12 Constitutional Court judges are appointed by the Congress of Deputies, four by the Senate, two by the Cabinet and two by other judges. Thus, various political actors exercise a “check” on the court through appointments (though judges remain independent once appointed). In contrast, in Israel, judges wield a veto over all the Supreme Court nominations, and when it comes to lower courts, politicians’ votes may not matter at all. Thus, in Israel today, there is no “check” on the power of the judiciary.
The Levin-Sa’ar proposal will create at least a small check. It’s not perfect and is quite timid, but it is an improvement on the current system.