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The Court That Packed Itself

By Mordechai Haller

Israel’s Supreme Court justices are appointed by an arcane process dominated by the court itself. A call for democratic controls.


The influence of the justices’ ideological outlook upon the law, then, is a pronounced one, and will be more pronounced to the degree that they are asked to rule on questions of a constitutional nature. Because such cases turn on abstract principles, they contain the greatest amount of ambiguity, and therefore demand the exercise of wide individual discretion in resolving them. At the same time, these cases also have the broadest impact, since they are essentially enshrining values into law. In addition, courts that are motivated by a philosophy of judicial activism, and therefore make decisions that could otherwise be left to the judgment of elected officials, further amplify the impact of the justices’ worldview upon the law of the land.

The composition of the highest court is therefore of paramount importance, since it determines whether the picture these “artists” are “creating” will reflect not only their own belief system, but also that of the nation which will have to live by their rulings. The question then becomes: How does a nation ensure that the small body entrusted with the task of constitutional judgment really reflects its basic values? How do we prevent the cloistered Supreme Court from becoming a judicial ivory tower, isolated from the public’s beliefs and aspirations, without opening it up to the direct pressure of public opinion? How, in short, can we create an accountable judiciary without compromising its independence?

 

III

The solution adopted by nearly all democratic nations is to give representative bodies the leading role in selecting highest-level judges, while ensuring that the latter are protected from external pressures once they are appointed. The original model for democratic judicial screening procedures is the one set forth in the United States constitution more than two hundred years ago, and still practiced today. In arriving at this procedure, the framers were aware of the need to balance independence against accountability: An independent judiciary, they believed, was a necessary “bulwark against the will of the majority run wild,” as well as the indispensable protection for the people against legislative and executive abuse.9 At the same time, they considered it essential to prevent the judiciary from evolving into a closed aristocracy that would impose its values against the wishes of the people.10 They struck a balance by giving Supreme Court justices lifetime tenure, but designing a judicial appointments procedure that was open to the public and controlled by the executive and legislative branches of government.11

Under the American system, all appointees to the federal bench, including the Supreme Court, are nominated by the democratically elected president, and subject to confirmation by the Senate, whose members are chosen by popular votes within each state. The president’s nominee appears before the Senate to give testimony in a public hearing that is open-ended, and that affords senators a full opportunity to inquire into any aspects of the nominee’s qualifications, experience, judicial philosophy and ideological orientation that they deem relevant. The hearing consists of a freewheeling question-and-answer session, which may last for hours, days or weeks, followed by open debate among the senators, and finally the vote to confirm or reject the nomination. In the view of American constitutional scholar Herman Schwartz, the Senate confirmation proceeding obligates each senator to “ensure that a judicial nominee will further and not undermine the senator’s vision of the Constitution.... The nominee’s social, political, and judicial beliefs are all relevant….”12 The history of American judicial selection supports this contention: As Schwartz has noted, over the course of two hundred years, “one in five nominations” to the Supreme Court “has been rejected by the Senate, often for philosophical or political reasons; of some twenty-nine rejections or withdrawals under fire, almost a third were because of the nominee’s views on public issues.”13

The continual replacement of retiring Supreme Court justices with new ones who must clear a series of democratic hurdles has provided a natural corrective, steering the court over time in the same direction as the nation’s overarching values. For example, as a broad public consensus formed around the economic programs of Franklin Delano Roosevelt in the 1930s and 1940s, the President earned Senate approval for new Supreme Court nominees who shared the nation’s overwhelming support for New Deal policies. Likewise, as conservative family values made their comeback and the excesses of egalitarianism came to be understood in the 1980s and early 1990s, the Supreme Court nominations of that time shifted the balance on the court as well. Over the decades, the court has been involved in a number of highly controversial decisions, but has maintained the respect of the overwhelming majority of the American people nonetheless. One reason for its success has been that citizens who are unhappy with the decisions of a particular court understand that, in the long run, democratic means can bring about a change. The Supreme Court is insulated from day-to-day pressures, but the common man does not feel that he is helpless to shape its character in the long run.

The wisdom of the American system of judicial selection has convinced virtually every democratic country in the world to follow suit. While democracies vary greatly in their approaches to the role of the constitutional courts, and to the particular means for selecting court justices, what has united them is the belief that if the country’s highest court is to retain its attentiveness to the constitutive values of a living, evolving nation, the lead in selecting the justices of that court must be taken by the people’s elected representatives. In some cases, it is the legislature that chooses the justices of the top court. In Germany, for example, half of the justices of the Federal Constitutional Court are selected by the upper house of parliament (the Bundesrat) while the rest are chosen by a committee of the lower house (the Bundestag). In Switzerland, the Federal Court’s members are selected by the parliament, which is obligated to ensure adequate representation for the country’s three linguistic sectors. In other countries, the democratically elected executive branch plays the leading role. In Sweden, for example, all the members of the highest court are selected by the government. A similar process is in place in Australia, Canada, Belgium and Norway, where justices are formally selected by the monarch or his representative, but nomination or approval of justices is left up to the government. In Japan, the fifteen justices of the Supreme Court are selected by the government; as an additional means to ensure that their views reflect the nation’s values, they must also be approved by the electorate in the first general election following nomination.14 A number of countries have opted to follow a mixed model such as that of the United States, in which the legislature and executive are both involved. In France, for example, three of the nine members of the Constitutional Council are appointed by the nation’s president, who is the country’s elected chief executive. Another three are appointed by the president of the National Assembly, which is one branch of France’s bicameral legislature, and three by the president of the Senate. In Austria, half the members of the Constitutional Court are chosen by the federal government, the other half by parliament.15

The same pattern repeats itself throughout the democratic world. In addition to the countries mentioned above, elected officials play the dominant role in appointing justices in the Czech Republic, Denmark, Greece, Hungary, Ireland, Italy, Macedonia, Poland, Portugal, Spain, Slovakia and Slovenia, as well as in the former-Soviet republics of Estonia, Latvia, Ukraine, Belarus and Russia. Outside of Europe and North America, as well, new and established democracies alike have explicitly placed in their constitutions provisions that assign the power of appointment to elected officials. This is the case, for example, in Argentina, Bolivia, Brazil, Costa Rica, South Africa, South Korea, Uruguay and Venezuela.16

Around the world, democracies have developed a variety of judicial selection processes, each according to the particularities of its traditions and constitutional makeup. What unites them all, however, is the basic commitment to a democratically accountable judiciary, and the understanding that even if the unique problems of justice mean that judges must be granted complete independence once in office, the constitutional court as a whole must be held accountable to the nation through a selection process dominated by the people’s elected representatives.



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