The objection will undoubtedly be raised that democratizing the appointment process will undermine the independence of judges, who may feel they somehow “owe” something to those who placed them in power. Indeed, it was on the basis of this argument that the current system was introduced in the first place.⁵⁵ Yet this argument demonstrates a misunderstanding of the basic workings of politics. Any judge whose salary and position are guaranteed for life is, almost by definition, impervious to political pressures, regardless of how he attained his position. There is no reason why a judge who has nothing to lose would allow a sense of misguided “gratitude” to interfere with the task of proper judgment. Indeed, this point has been made repeatedly by legal scholars.⁵⁶ It is worth noting that in America’s two hundred years of experience with a democratically controlled judicial appointments system, United States Supreme Court justices have frequently ruled along lines entirely different from what their backers during the nomination process expected.⁵⁷ Moreover, there is a crucial distinction between party partisanship and ideological partisanship: Clearly, judges must not be selected because of their affiliation with a political party. However, ideological partisanship is a legitimate criterion of judicial selection, since, as we have seen, the judicial task necessarily involves ideological decisions—and the public has a right to have a voice concerning which ideologies are shaping these decisions.

As for the objection that the Israeli legislature is too mired in petty partisanship to choose justices for the Supreme Court, the answer is simple: If the Knesset is competent to serve as the people’s representatives in passing constitutional laws that will bind future majorities, it is unreasonable to argue that it is not competent to approve appointments to the body that will determine what the constitution means.

A reformed selection mechanism is not only necessary in order to preserve the prestige of an increasingly embattled Supreme Court. It would also play an important role in strengthening Israeli democracy generally. One of the most debilitating illnesses of any democracy is for people to feel that their input does not matter, that they have no real control over their government, and therefore no reason to take public issues seriously. The judicial selections system fosters just this weakness, by sending the message that the people’s elected representatives cannot be trusted with the most important decisions, and that the question of who will occupy the nation’s courtrooms must instead be decided by a closed committee.

A reformed judicial appointments procedure should by all means protect the independence of Israel’s judges by making sure that they are free from political or other impermissible influences. But the power of Israel’s judiciary must be clearly predicated on the confidence of the people, by means of a public screening of judicial candidates. Only in this way will the most important message of democracy be reaffirmed in the public eye: That the judges are, ultimately, servants of the people. No more and no less.

Mordechai Haller is an attorney living in Jerusalem.

1. Charles L. Black, “A Note on Senatorial Consideration of Supreme Court Nominees,” Yale Law Journal 79, 1970, p. 660.

2. See Hillel Neuer, “Aharon Barak’s Revolution,” Azure 3, Winter 1998, pp. 13-49, and Evelyn Gordon, “Is It Legitimate to Criticize the Supreme Court?” AZURE 3, Winter 1998, pp. 50-89.

3. For the purposes of this article, the term “lifetime tenure” is meant to include systems in which judges’ positions are guaranteed until the age of retirement (in Israel the age is seventy).

4. Archibald Cox, The Role of the Supreme Court in American Government (Oxford: Clarendon, 1976), p. 99. See also Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model (Cambridge: Cambridge, 1993), p. 4: “Judges of necessity make law. Only those who believe in fairy tales deny this statement. Even so ... it [is] unsettling to admit to judicial policy making because we have surrounded judicial decisions with a panoply of myth, the essence of which avers that judges and their decisions are objective, impartial and dispassionate.”

5. Yitzhak Englard, “The Contribution of Judicial Decisions to Tort Law Developments,” Iyunei Mishpat 11, 1985-1986, pp. 76, 90; cited in Menachem Mautner, The Decline of Formalism and the Rise of Values in Israeli Law (Tel Aviv: Ma’aglei Da’at, 1993), pp. 46-47. [Hebrew]

6. Aharon Barak, “The Judge-Made Rule and Social Reality,” in Volume in Memory of Yoel Zusman, Supreme Court President (Jerusalem: Daf Hen, 1984), p. 93.

7. Black, “A Note,” pp. 657-658. He identifies “the loci classici” of his approach in the writings of Oliver Wendell Holmes, Jr., Felix Frankfurter and Learned Hand. See also Eugene Rostow: “We have all long since agreed that judges are men, not automatons.... Inevitably they bring different views to the court....” Eugene V. Rostow, The Sovereign Prerogative: The Supreme Court and the Quest for Law (New Haven: Yale, 1962), p. 123; and Michael Paulsen: “Ideology matters: Whether a judicial candidate is an originalist, a formalist, a pragmatist, or a judicial activist, her judicial philosophy (and, depending on the candidate’s judicial philosophy, her political philosophy and personal views) on important issues is central to how she will behave as a judge.” Michael Stokes Paulsen, “Straightening Out the Confirmation Mess,” Yale Law Journal 105:2, November 1995, pp. 549-580.

8. Segal and Spaeth, Attitudinal Model, p. 65.

9. Alexander Hamilton, James Madison, John Jay, The Federalist Papers (New York: Bantam Books, 1982), no. 78, pp. 392-399; John Arthur, Words that Bind: Judicial Review and the Grounds of Modern Constitutional Theory (Boulder: Westview Press, 1995), passim.

10. Arthur, Words that Bind, pp. 1-3, 39, 132-133.

11. Federalist, no. 78. Equally important, judicial removal through the impeachment procedure was vested entirely in the legislative branch. Hamilton was quite clear that the most important point here was to avoid empowering the executive, the President, to any degree, because of the temptation to remove judges solely to threaten or punish those who might rule against him. Likewise, because of the likelihood of professional competition or jealousies, members of the judiciary itself were to have no role in disciplining or impeaching—to say nothing of appointing—other members of the judiciary. Attempted revenge or control on the part of the legislature was considered a far less likely possibility, because of the great number of different and conflicting interests that would have to converge in order for enough legislative members to agree on the desired, if venal, course of action.

12. Herman Schwartz, Packing the Courts: The Conservative Campaign to Rewrite the Constitution (New York: Scribner, 1988), pp. 48-49.

13. Schwartz, Packing the Courts, p. 45. See also Henry J. Abraham, Justices and Presidents: A Political History of Appointments to the Supreme Court of the United States (New York: Oxford, 1974), pp. 33, 65. The first time the U.S. Senate rejected a nominee—whose name was submitted by President George Washington—was in 1795.

14. After being approved, Japanese judges serve life terms, subject to the review of the electorate every ten years. This is unusual among democracies, in that it places a relatively low premium on independence.

15. Conspicuously absent from the list is the United Kingdom, whose system of selecting justices is—as in so many other areas of British government—sui generis. The highest court is a committee of the House of Lords, an unelected and ostensibly legislative body which at the same time is supposed to embody the constitutional values of the nation, the way the supreme court does in other countries. The “Law Lords,” as the justices are called, are appointed by the queen upon recommendation by the prime minister, who in turn is advised by the Lord Chancellor as well as a number of sitting Law Lords and legal experts.

16. In most of these countries, the judicial selection process is spelled out explicitly in each nation’s constitution.

17. The full text of the relevant provisions reads: “Appointment of Judges: 4. (a) A judge shall be appointed by the President of the State upon election by a Judicial Selections Committee. (b) The Committee shall consist of nine members, namely, the President of the Supreme Court, two other judges of the Supreme Court elected by the body of judges thereof, the Minister of Justice and another Minister designated by the Government, two members of the Knesset elected by the Knesset and two representatives of the Israel Bar elected by the National Council of the Bar. The Minister of Justice shall be the chairman of the Committee.”

18. Under the last government, Justice Minister Tzahi Hanegbi was so pusillanimous toward the justices that he effectively expanded the bloc to four, agreeing with every appointment proposed by the justices. When Barak spoke last June at a farewell party for Hanegbi, Barak praised him for “running the meetings honestly and effectively. In his positions he agreed with the proposals which the Supreme Court justices brought before the committee.” Ha’aretz, June 7, 1999.

19. Unless he is busy representing the interests of his own party. Under the Netanyahu government, the ministerial representative on the committee was Education Minister Yitzhak Levy of the National Religious Party. His most pressing concern, it would appear, was increasing the number of Orthodox Supreme Court justices. See, for example, Ha’aretz, October 23, 1996. It is fair to assume that whenever the government’s minister is not a member of the dominant coalition party, his sectoral interests will come into play as well.

20. There is another possibility: That the committee will become a battlefield for the personal grudges between the lawyers and the justices. In a tense meeting of the five legal-establishment members of the committee in November 1996 to discuss upcoming judicial appointments, the former chairman of the Israel Bar Association, Dror Hoter-Yishai, accused the judges of “taking revenge” against him for his involvement in a number of cases which had come before them. Kol Ha’ir, December 6, 1996. Recently, a campaign has been waged to have Hoter-Yishai removed from his position on the committee. Ha’aretz, May 4, 1999.

21. Ha’aretz, December 13, 1993.

22. See Ha’aretz, November 13, 1995. Regarding the personal relationship between the Barak and Beinish families, see Kol Ha’ir, November 17, 1995.

23. See Kol Ha’ir, June 14, 1996.

24. There are a number of distinctions between the role of president of the Supreme Court in Israel and that of the chief justice in the United States. The most important difference, perhaps, has to do with the panels of judges which hear cases. In the United States, cases which come before the Supreme Court are heard by all nine justices. In Israel, however, most cases are heard by a small panel of three or five judges. In normal circumstances, the judges are selected at random; in sensitive cases, however, the court president has the power to determine which judges will participate, and can thereby effectively determine the outcome of ideologically laden decisions. For an important example of how this can play itself out, see Pnina Lahav, Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century (Berkeley: University of California, 1997), pp. 199-200.

25. Globes, July 16, 1997. To Transportation Minister Yitzhak Levy of the National Religious Party, Barak promised the nomination of an additional Orthodox justice; to MK Amnon Rubinstein of Meretz, Barak promised the nomination of an Arab justice.

26. Martin Edelman, Courts, Politics and Culture in Israel (Charlottesville: University of Virginia, 1994), p. 34.

27. Yitzhak Olshan, Law and Words (Jerusalem: Shocken, 1978), p. 247. [Hebrew]

28. Moshe Ben-Ze’ev, “Politics in the Appointment of Judges,” Orech Hadin, May 27, 1981, p. 13.

29. Article 1(c), Courts Ordinance (Transitional Provisions) no. 11, 5708.

30. Elyakim Rubinstein, Judges of the Land: The Origin and Character of the Israel Supreme Court (Jerusalem: Shocken, 1980), p. 59. [Hebrew]

31. Smoira and Rosen were aware of the real or apparent conflict of interest; Smoira asked Rosen to obscure his role in the appointment. Rubinstein, Judges of the Land, p. 60.

32. Rubinstein, Judges of the Land, pp. 60-66.

33. Knesset Proceedings, vol. 8 (1951), p. 1176, cited in Rubinstein, Judges of the Land, pp. 105-106.

34. Rubinstein, Judges of the Land, p. 106.

35. Olshan, Law and Words, p. 328. Justice Olshan’s memoirs depict a deep antagonism to religious Jews, and refer repeatedly to Orthodox “conspiracies” to impose religious law on the Israeli public. See, for example, p. 327, and chapter 31, passim. In Rubinstein’s words, “His book is permeated, to a great degree, with harsh criticism (out of respect I do not use a sharper term) of Israeli religious circles….” Rubinstein, Judges of the Land, pp. 154-155.

36. Ha’aretz, August 24, 1978, cited in Rubinstein, Judges of the Land, p. 120.

37. Ha’aretz, October 23, 1996.

38. Ze’ev Segal, “A Constitution without a Constitution: The Israeli Experience and the American Impact,” Capital University Law Review 21:1, Winter 1992, p. 16. Segal clearly means by this both the narrow partisan concerns of party politics, and examination of a candidate’s political ideology, since he calls for “minimum intervention in the process by politicians (members of the legislative and the executive branches)”—not only as party politicians but even as elected policymakers.

39. Rubinstein, Judges of the Land, p. 119.

40. For a general discussion on the ethnic and religious makeup of the courts, see Rubinstein, Judges of the Land, pp. 137-157. See also Shimon Shetreet, Justice in Israel: A Study of the Israeli Judiciary (Dordrecht: Martinus Nijhoff, 1994), pp. 270-272; Ma’ariv, July 19, 1996.

41. Rubinstein, Judges of the Land, pp. 36-37; Supreme Court Public Relations Office; Yo’av Yitzhak, First Class: 1998 (Tel Aviv: Egel Hazahav, 1998), pp. 55-73. [Hebrew]

42. Based on information conveyed by the Supreme Court Public Relations Office; see also Yitzhak, First Class, pp. 55-73.

43. Rubinstein, Judges of the Land, p. 218. Further, “in light of the advanced age of most of the justices, their compulsory lack of contact with the community and their immersion in a judicial tradition whose aim is to distance judges from external pressures, their outlook is liable to be different than that of the general public.” Shimon Shetreet, “Reflections on the Protection of the Right of the Individual: Form and Substance,” Israel Law Review 12, 1977, p. 32, cited in Rubinstein, Judges of the Land, p. 218.

44. Rostow was referring more generally to the task of constitutional adjudication. Rostow, Sovereign, p. 93. See also Rubinstein, Judges of the Land, p. 202. A preeminent American jurist took this idea even further: “It is as important to a judge called upon to pass judgment on a question of constitutional law, to have a bowing acquaintance with Acton and Maitland, with Thucydides, Gibbon and Carlyle, with Homer, Dante, Shakespeare, and Milton, with Machiavelli, Montaigne, and Rabelais, with Plato, Bacon, Hume and Kant as with books that have been specifically written on the subject. For in such matters everything turns upon the spirit in which he approaches the question before him. The words he must construe are empty vessels into which he can pour nearly everything he will.” Learned Hand, in The New York Times Magazine, November 28, 1954, quoted in Abraham, A Political History, p. 53.

45. Aharon Barak, “The Constitutional Revolution: Protected Human Rights,” Mishpat Umimshal 1, 1992-1993, p. 30, cited in Neuer, “Aharon Barak’s Revolution,” pp. 47-48.

46. Aharon Barak, Judicial Discretion, trans. Yadin Kaufmann (New Haven: Yale, 1989), pp. 36-41; Barak, Interpretation in Law (Jerusalem: Nevo, 1992), pp. 231, 345; Aharon Barak, “Basic Law: Freedom of Occupation,” Mishpat Umimshal 2, 1994, p. 208, cited in Neuer, “Aharon Barak’s Revolution,” p. 46, note 62.

47. Barak, “Freedom of Occupation,” p. 208, cited in Neuer, “Aharon Barak’s Revolution,” p. 32.

48. Moshe Landau, quoted in Ben-Dror Yemini, “Enlightened Fundamentalism,” Ha’aretz, October 1, 1997, p. 28.

49. Yemini, “Fundamentalism,” p. 28.

50. Cox, Role of the Supreme Court, pp. 117-118. Furthermore: “The power of the Supreme Court to command acceptance and support for its role in government seems to depend upon a sufficiently widespread conviction that it is acting legitimately, that is, performing the functions assigned to it, and only those functions, in the manner assigned.” Cox, Role of the Supreme Court, pp. 104-105. Rostow concurs, “For the people, and not the courts, are the final interpreters of the Constitution. The Supreme Court and the Constitution it expounds cannot survive unless the people are willing, by and large, to live under it.” Rostow, Sovereign, p. 142.

51. Segal, “A Constitution,” p. 16. Rubinstein agrees with Segal’s characterization that the present judicial selections system “is an attempt to neutralize appointments from politicization.” Rubinstein, Judges of the Land, p. 115.

52. Paulsen, “Straightening Out,” p. 579.

53. See Paulsen: “The prospect of open, substantive ideological review of judicial candidates always raises [the] objection ... that it would require a judge to commit herself to voting certain ways in cases that may come before her, compromising both judicial independence and judicial ethics ... [but] serious pre-appointment discussion of judicial philosophy simply does not compromise the constitutional independence of life-tenured judges, once they have been confirmed and appointed.” Paulsen continues: “The political branches may demand information necessary to enable them to make informed predictions, but they may not extract promises or pledges. A nominee may answer any and all substantive questions, but always with the reservation of the right to change her mind and always with the caveat that, though she has preliminary views, any particular case must be decided on the basis of its facts and in light of the legal arguments presented.” Paulsen, “Straightening Out,” pp. 570-573. See also Alexander Hamilton: “As nothing can contribute so much to [the judiciary’s] firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution....” Federalist, no. 78; and Shetreet: “The rules regarding the tenure of judges generally lie at the foundation of an independent judicial system.” Shetreet, Justice in Israel,
p. 54.

54. “Judges who never have to seek or preserve electoral support have no incentive to please supporters, or to consider how their decisions, particularly in high-profile cases, will be received by the citizenry.” Steven P. Croley, “The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law,” The University of Chicago Law Review 62:1, 1995, p. 747.

55. Knesset Proceedings, vol. 8 (1951), pp. 1176-1179, 1191-1192; Knesset Proceedings, vol. 13 (1953), pp. 440-442. See also Olshan, Law and Words, p. 224; Rubinstein, Judges of the Land, pp. 103-120; Asher Arian, Politics in Israel: The Second Generation (Chatham: Chatham House, 1985), p. 182.

56. Croley, “The Majoritarian Difficulty,” pp. 746-747.

57. Far from viewing the courts as a threat, the framers of the U.S. Constitution “were more concerned lest the judges become subservient to either of the other branches. To insure the judiciary’s independence, the framers provided them with lifetime tenure, no reduction in salary, and created a selection process that neither the President nor the Congress could control.” Segal and Spaeth, Attitudinal Model, p. 13.