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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.


 

IV

In Israel, by contrast, judges are selected by—themselves. There is no trouble balancing judicial independence with accountability, because no real effort is made to provide for accountability. While the committee which appoints judges appears, at first glance, to represent the interests of a variety of parties, including elected representatives, a closer look at its makeup and functioning reveals that it is, in fact, a recipe for the domination of the process by the justices sitting on the Supreme Court.

Under the Basic Law: The Judiciary, all civil and criminal court judges, including Supreme Court justices, are appointed by a nine-member Judicial Selections Committee.17 The committee is made up of the president of the Supreme Court, two other Supreme Court justices chosen by the court, the justice minister, an additional minister appointed by the government, two Knesset members, and two representatives of the Israeli Bar Association. In other words, a majority of the Judicial Selections Committee’s members—the three justices and the two Bar representatives—are not chosen by the Israeli public, and are not accountable to it.

This mixture of representative and unrepresentative members results in a body whose decisions are completely unrepresentative of the public sentiment. This becomes clear when we examine the way competing interests are positioned on the committee. The four politicians all represent diffuse interests. By tradition, one of the Knesset members represents the government and the other the opposition, which means the two are more likely than not to disagree when matters of ideology are at stake. The justice minister is the single member of the government least appropriate for representing popular interests against the views of the justices, since he is usually a lawyer himself, advised by the judicial establishment and often beholden to it;18 he is therefore likely to disagree with the other government minister, whose principal loyalty is to the government and to the values of the electorate that put that government in power.19 The five representatives of the legal establishment, however, have their interests neatly lined up: The three justices will naturally become a single voting bloc, protecting the interests and prevailing views of the Supreme Court itself. Moreover, it is safe to assume that the selection of the two junior justices to the committee will have been heavily influenced, if not dictated, by the court president, himself a member of the committee. As for the representatives of the Bar Association, they are seen within their own fields as inferiors in the legal hierarchy, of which the judges are the apex, and it is they who will pay a price for failing to represent the very same values that the judges are defending.20

In practice, the three justices on the committee do vote as a bloc, and it is their vote which almost always determines the outcome. A good illustration of this point is the 1995 appointment of State Attorney Dorit Beinish to the Supreme Court. In 1993, her appointment was considered and rejected because she was regarded by the Supreme Court justices to be less qualified than the other candidates. The vote at the time was five to four against, with the five negative votes coming from the three justices, led by Supreme Court President Meir Shamgar, and the two Bar Association representatives. At the time, the daily newspaper Ha’aretz reported that the justices presented a united front despite “persistent rumors” of sharp differences of opinion among them.21 Two years later, her appointment was again considered, but by this time Shamgar had retired and been replaced by Aharon Barak, a longtime personal friend of Beinish. Even though her qualifications had not substantially changed (she was still State Attorney), the vote this time was nine to zero in favor of her nomination.22 Later, Barak himself admitted that it was he who had “initiated” Beinish’s appointment.23 Effectively, this meant that Barak’s appointment as Supreme Court President shifted five of the nine votes on the committee, and reversed the previous decision. The importance of this particular appointment should not be underestimated: By tradition, the presidency of the court—an office substantially more powerful than that of the chief justice of the United States Supreme Court24—is given to the justice who has served longest on the Supreme Court. When Barak retires at age seventy in the year 2006, Beinish will replace him as president. In other words, just two years after Beinish was rejected for a position on the court due to her lack of qualifications, Barak was able to hand-pick her as his successor.

Sometimes, of course, the forces do not line up as predicted; yet even then, the three-justice bloc almost always carries the day. A case in point is the appointment of HebrewUniversity law professor Yitzhak Englard to the Supreme Court in July 1997. This time, it was the Bar Association representatives who, in a rare show of independence, opposed the nomination because Englard—a longtime personal friend of Barak and the father of Barak’s intern—had never served as a judge or even as an attorney. The justices stood behind Barak’s pick, and the nomination was passed after Barak reportedly cut a deal with two politicians on the committee, promising future appointments which furthered their own ideological interests.25 The Beinish and Englard appointments serve to illustrate the decisive sway the three-justice bloc has over the committee’s decisions. As legal scholar Martin Edelman summed it up, “By established practice, appointments to the Supreme Court require an affirmative vote of all three justices on the panel.”26 Indeed, it is almost unheard of that a nominee to the high court would be either approved or rejected over the objections of the justices on the committee.

The influence of the justices is so evident that defenders of the system do not even bother to deny it; instead of conceding what amounts to a stunning affront to democratic principle, they seize upon it as a venerable tradition. Yitzhak Olshan, who was the Supreme Court’s president from 1953-1965, relates with pride that during his tenure, there was little dissent in the selection of justices. “Throughout the entire period, all the committee’s decisions were agreed upon almost unanimously. In most cases there was cooperation between the justices, the attorneys and the justice minister.”27 And Moshe Ben-Ze’ev, who served as attorney-general from 1963-1968, has observed that “it is hard to imagine the appointment of a judge, and certainly not of a Supreme Court justice, that contradicts the united opinion of the three Supreme Court justices on the committee. I hope that this is an unwritten rule—if not, I think it should be enshrined in law.”28

This remarkable statement can be fully understood only by taking a look at the way the current system came to be, and the degree to which the legal and judicial establishment has acted to protect this accumulation of power in its own hands. Under the Courts Ordinance in effect following the establishment of the State of Israel in 1948, justices were nominated by the justice minister, approved by the government and confirmed by the Knesset, a system similar to that which is practiced in most democratic countries.29 Attorney-General Elyakim Rubinstein has characterized the early system as “an appropriate arrangement which permitted the executive branch to appoint judges to the Supreme Court—but placed confirmation power in the hands of the legislative branch, similar to the American practice.”30 Yet these safeguards proved inadequate to instill a norm of democratic control over the judicial selection process. While the country’s institutions were in flux and the public’s attention was distracted from constitutional considerations, the legal establishment wasted no time in claiming for itself the right to absolute control over the selection process. The first justice minister, Pinhas Rosen, was able to recommend none other than his own law partner, Moshe Smoira, to be the first president of Israel’s Supreme Court in 1948.31 Throughout the spring and summer of 1948, Rosen and Smoira carried on an intense correspondence, hammering out an agreed list of candidates to fill the remaining seats on Israel’s first Supreme Court. During the first years of the state, all but one of the candidates on Smoira’s list became Supreme Court justices, including a number who were rejected when first nominated.32



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