Joshua Z. Rokach

Israel’s Judicial Selection Crisis


President Isaac Herzog’s publication of his compromise judicial overhaul plan created an opening for serious discussion of issues at the core of a thriving democracy, including how to choose judges. The Government’s instant rejection exposed its lack of serious interest in this important dialog. The president’s proposal for multiple group vetoes and super-majorities in the Judicial Selection Committee prevents the harm of the Government’s proposed legislation. However, achieving a more inclusive and nonpolitical justice system requires something better. Once this poisonous atmosphere clears, dialog can ensue.

Judaism values the quality of judges, as much as the quality of justice. The Book of Exodus records Yitro’s advice to Moses on that score, at the dawn of our nationhood. In a more secular vein, future US Supreme Court Justice Oliver Wendell Holmes, Jr. wrote “The life of the law has not been logic; it has been experience.” He went on to declare that “the felt necessities of the times,” not syllogisms, anchor justice. The Rule of Law requires that judges collectively bring to bear as broad a spectrum of legal resumes and life stories as feasible when deciding cases.

The current Israeli system, which gives incumbent judges and the organized bar the upper hand, perpetuates an insular judiciary. Almost all members of the Israeli Supreme Court come from backgrounds of government ministries or corporate firms or law school professorships. Public interest attorneys or lawyers for human rights groups do not jump out. With few exceptions, sitting judges on lower courts gain High Court seats. At least in the US, appointing sitting judges to the Supreme Court brings conservative, less innovative, jurists. Path-breakers, such as Justice Hugo Black and Chief Justice Earl Warren, enjoyed long careers in elected office when nominated.

The solution to judicial insularity in the US lay in the political branches. When Louis D. Brandeis joined the Court, a majority of justices rejected laws establishing minimum wages, maximum hours and baseline safety standards for workers. Those judges embraced a neat theoretical construct. Employment contracts governed these issues. Therefore, employers and individual employees, each with equal bargaining power, should negotiate terms. Indeed, they held that laws deprived the parties of “freedom of contract.” Brandeis knew from real life the falsity of that myth, the enormous advantage the employer had. In fact, the law calls such agreements contracts of adhesion and unenforceable.

Yet, had the bench and the establishment bar held sway, Brandeis would not have made it. When President Woodrow Wilson nominated him, multiple current and former leaders of the bar, including former US President William Howard Taft, denounced the nominee as unqualified. Antisemitism played a role. However, history shows no antisemitism on Taft’s part. Politics motivated him. President Wilson persisted.

Giving the coalition control, as the Government seeks, creates problems. As many have said, Israel’s political structure – no constitution, Mks beholden to the party leader instead of voters – cannot prevent conflicts of interest. Members of the Government should not install rubber stamps. Defendants or potential defendants should not get to choose the judges in their court cases.

Indeed, the system no longer works in the US. As late as 2005, President George W. Bush withdrew the Supreme Court nomination of his White House Counsel when fellow Republican senators would not vote for her. No longer. In Justice Stephen Breyer’s phrase, the Supreme Court has become a group of “junior varsity [amateur] politicians in robes.”

President Herzog’s proposal has major drawbacks as well. Its structure, with two interest groups required to agree to an appointment, copies the way the not-for-profit Independent System Operators of the US run the electricity grid. All this consultation brings stalemate at a time when the US badly needs renewable power generation to connect with customers. The operators cannot agree on applications for expansion to submit to regulatory agencies for approval.

Requiring 7 of 11 votes to make an appointment resembles the US Senate’s 60-vote filibuster rule, which used to apply to confirming judges. The mechanism blocked so many nominations or caused long delays that the Democrats (for lower courts) and Republicans (for the Supreme Court) abandoned it in favor of majority votes.

Moreover, the proposal does not address the issue of broadening the world views of judges. The US successfully diversified the lower courts in the 1970s through merit selection commissions that adhered to guidelines. How that would play out in Israel requires genuine deliberation in an atmosphere of good will.

About the Author
Joshua Z. Rokach is a retired appellate lawyer and a graduate of Yale Law School.
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