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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.


Together with Rosen, the justices on the newly constituted Supreme Court embarked upon a broad campaign to eliminate legislative supervision of the judiciary. In 1951, Rosen introduced legislation, which he had prepared in consultation with the justices, that would effectively seal off the judiciary from the political system. “It is the lot of all enlightened peoples,” declaimed Rosen before the Knesset, “that every judge be independent and under no obligation to account for his decisions, except to his own conscience.”33 In 1953, after some minor modifications, the Magistrates Law was passed, and the Knesset’s authority to confirm judicial nominees was done away with. From then on, justices would be selected by a committee similar in composition to the one in place today. The importance of this arrangement becomes clear in the memoirs of the second president of the court, Yitzhak Olshan. He had opposed the appointment of Simha Asher, an Orthodox rabbi, to the first Supreme Court but was unable to prevent it because, under the old appointments procedure, the justices were not consulted. When Asher died in 1953, shortly after the new system was instituted, religious circles began lobbying for a replacement from the Orthodox community, based on a provision in the law which permitted the appointment of an “outstanding jurist” (such as a rabbinical scholar or a law professor from abroad) even if he was not a member of the Israeli Bar.34 “This time,” Olshan writes, “with the foreknowledge that we, the justices of the Supreme Court, would take a tough stance,… the question was removed from the agenda of the various meddlers.”35

Over the years, the Supreme Court has done everything in its power to protect or even augment its domination of the selection process. In 1978, Justice Meir Shamgar (later president of the court) called for the expansion of the committee’s judicial component for the sake of the appearance of judicial independence.36 More recently, Aharon Barak has waged a preemptive campaign to convince the public that nothing could be so disastrous as the introduction of democratic controls on the selection of justices. Speaking before members of the Knesset Constitution, Law and Justice Committee in October 1996, Barak voiced his opinion thus: “May God save you from any attempt to bring about a politicization of the structure and composition of the highest judicial body. God in heaven, you can’t have constitutional justice that way. It would be a tragedy for the country if appointments to the constitutional court were political….”37

In the effort to reach an ideal of perfect judicial independence—what Rubinstein has called a “hermetic seal” between the judiciary and elected officials—Israel has adopted a system in which the judiciary is accountable to no one, justices are appointed by a committee whose hearings are held in secrecy and dominated by the sitting justices, and the nation is left without any real say in the question of who will interpret its laws. The Israeli legal scholar Ze’ev Segal has pointed out that “the main aim of the system is to minimize possible political influence on the selection of judicial officers”—“political influence” meaning, among other things, “intervention in the process by … members of the legislative and the executive branches....”38 The Supreme Court, not surprisingly, is quite pleased with this system—former Supreme Court President Simon Agranat termed it “the best in the world”39—for the result is that the justices can, and do, shape the courts in their own image.

 

V

What happens when membership in an elite group of people is determined by the members themselves? Invariably, the result is a team of individuals whose ideas and thoughts bear a strong resemblance to one another. While Israel possesses one of the most diverse populations in the world—the vast majority of its citizens are either immigrants or the children of immigrants, representing a broad range of political and cultural traditions—its judicial selection process has produced a bland and intellectually uniform Supreme Court, leaving the opinions and concerns of a substantial majority of the Israeli public underrepresented, or not represented at all.

The problem is not, as is usually claimed, one of ethnic or religious homogeneity. Much has been made of the fact that the religious and ethnic makeup of the Supreme Court is overwhelmingly secular-Ashkenazi.40 But to dwell on the ethnic or religious makeup of the court is to miss the point: There is a more dangerous type of homogeneity, cultural and intellectual, which has come to characterize the courts in Israel, and increasingly so in recent years.

Consider, for example, the lack of professional diversity which has characterized the court since the current selection process was instituted in 1953. The eleven justices appointed from 1948 to 1953 included five judges, three private lawyers, one diplomat, one professor of Jewish literature and one ministry director-general. By contrast, the thirty-two justices appointed since 1954 include twenty-three lower court judges and five senior Justice Ministry lawyers (three attorney-generals and two state attorneys), two law professors, one professor of Jewish law and one private lawyer. This last, appointed in 1992, was the first privately practicing lawyer to be appointed since 1948.41

This professional homogeneity is accompanied by a uniformity in the educational background of the justices, a similarity which again has nothing to do with ethnic or religious background. Of the fifteen permanent and acting justices on the Supreme Court today, not one holds a degree in any field other than law.42 This is especially troubling in light of the narrowness of the education which Israeli law students receive: While in most Western countries a bachelor’s degree in the humanities includes exposure to a broad range of basic cultural and philosophical sources, in Israel this is not the case. Future attorneys and judges begin their academic studies already specializing in law, and often have little or no exposure to the most basic texts in other fields—even those fields that may bear directly upon the judgments which they will have to make. Areas such as political philosophy, economic theory, international relations, Jewish law, history, literature and the arts are, for many jurists, a closed book. As Rubinstein phrases it in his characteristic understatement, “the justices who have been appointed were not, generally, individuals known for their exposure to public and social affairs....”43

All this adds up to a narrowness of mind which is wholly incompatible with the task of constitutional adjudication. In order to determine the constitutionality of an action or law, judges must take into account the implications of the ruling in a wide variety of contexts. As the constitutional scholar Eugene Rostow has put it, “there is a political element in constitutional interpretation, requiring a judge to be thoroughly steeped in the history and public life of the country.”44 In Israel, the country’s history and public life include not only the Zionist idea which stood at the foundation of the state (which itself comprised a number of competing streams), but also a host of other historical trends and factors, all of which came together at the moment of the country’s founding and have continued to play a role in the development of Israeli law, and therefore cannot be ignored when considering the country’s founding constitutional principles: English common law, American rights jurisprudence, the difference between the American, English and Continental approaches to political theory, European nationalism, Liberalism, Marxism, and the variegated streams within the Jewish legal heritage—not to mention the Bible, which to many of Israel’s founding fathers was the cornerstone, the ultimate constitutional document, of the Jewish polity. Perhaps it is unreasonable to expect each justice to be well-versed in everything. But for this reason, intellectual diversity is all the more important, so that the court as a collective will have access to these competing traditions, and will make decisions based on healthy argument among them. Without this kind of diversity, the Supreme Court cannot be a marketplace of ideas; and as Mill long ago argued, in the absence of a competition among ideas, thinking becomes inbred, flaccid and shoddy.

The incompetence of the current Supreme Court to conduct constitutional judgment for the Jewish state has become increasingly evident in recent years, particularly since the 1992 passage of the Basic Law: Freedom of Occupation and the Basic Law: Human Dignity and Liberty. Both of these laws, which the courts have understood as having constitutional stature, guarantee the protection of basic human freedoms, which can only be abrogated by laws that are consistent with “the values of the State of Israel as a Jewish and democratic state.” These values remain unspecified, yet a simple reading of the text yields a limited range of reasonable interpretations for what those “Jewish and democratic” values could possibly be. Since the establishment of Israel, the idea of a “Jewish” state has found expression in a large number of laws, such as the Law of Return granting automatic citizenship to Jewish immigrants from around the world, provision for Jewish education within the general school system, and the granting of a special public status to particularistic institutions such as the Jewish Sabbath.



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