Government appointment of judges isn’t ideal – but it’s not the end of democracy

I was appointed as a judge by the government, but I routinely decided cases against the government. Both of these things can be true.

During the first four years of the modern state of Israel, the government directly appointed judges. Since 1952, judicial appointments in Israel have been made by the Judicial Appointments Committee, which includes both politicians and judges. To appoint a judge, seven of the nine members of the committee must agree. The government’s legitimate concern about the current system is that the three members of the committee who are serving Supreme Court judges can (and do) vote as a block, thereby giving the existing judiciary an effective veto on judicial appointments. The three judges can’t simply appoint anyone they want, but they can prevent anyone they don’t want from being appointed.

The judiciary should broadly reflect the diversity of the community it serves in order to maintain the confidence of the community. The problem with the current system of judicial appointments in Israel is that the judicial veto tends to create a more homogenous and less diverse judiciary.

The government’s proposed reform is to increase the number of coalition members of the Judicial Appointments Committee to five and to enable judges to be appointed by a simple majority of five members of the committee. The slightly tweaked government proposal is to require the agreement of the opposition members of the committee to Supreme Court appointments after the first two during any Knesset (which is not likely to occur very often). This is the component of the proposed judicial reforms that the government wishes the Knesset to legislate before Pesach.

I have argued elsewhere that the government’s proposed judicial reforms would, collectively, create a dictatorship of the coalition and undermine the character of Israel as a Jewish and democratic state. However, the government’s proposed change to the judicial appointments process would not, in itself, herald the end of Israeli democracy. If this were the only reform proposed, I doubt that many of the thousands protesting (myself included) would have done so.

Indeed, it is arguable that the government’s proposed Judicial Appointments Committee will be more democratic than the current system. This is because politicians are answerable to the public every four years, whereas judges are not. The appointment of judges by the government means that voters have at least an indirect input into who should be appointed to the judiciary. This, in itself, promotes greater public confidence in the judiciary. Furthermore, the appointment of judges by the government tends to create a more diverse judiciary, because politicians reflect different constituencies and because governments change. This also promotes greater confidence in the judiciary.

My own experience as an Australian judge shows that government appointment of judges does not undermine the independence of the judiciary. I was appointed as a senior member of the Western Australian State Administrative Tribunal by a Labor government. After the expiry of my first five-year term, I was reappointed to that position by a conservative Liberal government. The same conservative government later appointed me as a District Court Judge and as a Deputy President of the State Administrative Tribunal. Then a Labor government reappointed me as a Deputy President of the State Administrative Tribunal.

Throughout my 17 years as an Australian judicial officer, I frequently made decisions against the government then in power, because I decided all cases on their merits and according to the law. All Australian judges do. This is because judges take very seriously their duty to exercise their power independently – without fear or favour, affection or ill-will, or as the Torah expresses it, without recognising faces. Furthermore, judges usually have tenure of appointment and can only be removed from office for serious misconduct. These factors augment the independence of the judiciary.

The appointment of judges by the government in power is the norm in most legal systems. However, it is no longer regarded as best practice. This is because it does not enable, and can actually discourage, some worthy candidates from coming forward, and it favours candidates who are known to the government or to the government’s legal advisers. Consequently, since 2006, the UK Judicial Appointments Commission (and not the British government) has selected candidates for judicial office in courts and tribunals in England and Wales, and for some tribunals whose jurisdiction extends to Scotland and Northern Ireland. Membership of the UK commission is drawn from the judiciary, the legal profession, non-legally qualified judicial office holders and the public. The UK commission has made the appointment process for judges clearer and more accountable, it has strengthened the independence of the judiciary, and it has resulted in a more diverse judiciary.

Interestingly, the Judicial Appointments Committee in Israel, which preceded the UK Judicial Appointments Commission by over half a century, has some of the features of the British best practice model. The make-up and operation of the Judicial Appointments Committee could easily be amended along the lines of the UK commission to ensure that neither judges nor the government could appoint or prevent the appointment of candidates on their own, encourage worthy candidates who are not well-known to either judges or politicians to come forward, create greater diversity on the bench, and enhance the independence of the judiciary. All that is required is to reduce the number of serving judges and the number of coalition members on the committee to two each and to appoint two or more eminent citizens of the state nominated by the President and agreed to by the Prime Minister and the Leader of the Opposition.

It is a great pity that the coalition has not approached this important constitutional moment by seeking broad consensus in Israel as to how to improve the operation of the judicial branch of government. Had the government done so, it might well have found that although the current judicial veto on the appointment of judges should be abolished, the appointment of judges by the government in power is also not ideal. But this change is not, in itself, the end of Israeli democracy.