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Nathan Lewin
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Judges shouldn’t participate in appointing their successors

In the US, judges are left out of the process entirely – and history shows why there's good reason for that policy

I am an octogenarian practicing lawyer in the United States who has taught constitutional law in leading American law schools and has appeared before the Supreme Court and in every federal circuit court of appeals. Like other American lawyers, I have watched and opined on the judicial reforms that are being proposed in the Knesset and that have generated enormous controversy in Israel and in the United States. Many of the proposals are debatable, and compromise is likely to resolve the sharp differences that are currently highlighted in the media.

One component of judicial reform that is now on an express track concerns the selection of judges, including replacements for Supreme Court justices who are approaching the mandatory retirement age of 70. While maintaining the Israeli practice of appointment by a multi-member committee, the reform presently before the Knesset calls for selection of future judges by an 11-member committee that includes three incumbent judges. When a High Court choice is to be made, the proposal directs that the three judicial officers all be sitting members of the Supreme Court.

This assignment of power to judges to select their successors would be a glaring violation of American constitutional separation-of-powers standards. It would be scandalous in the United States if a president openly asked a sitting Supreme Court Justice who to nominate for a vacancy in the Supreme Court or in any lower federal court.

Israel’s judges have apparently persuaded the Israeli public that only judges can be trusted to evaluate lawyers’ legal expertise and professionalism. This faulty premise – buttressed by decades of custom ever since a judiciary was first established with creation of the State — has been accepted even by the most extreme advocates of judicial reform.

Imagine what would have happened to Franklin Roosevelt’s New Deal in the 1930s if the Supreme Court Justices who had blocked all progressive efforts to manage the economy during the prior administrations had the power to choose those who would replace retiring or deceased members. A majority of the Justices between 1900 and Roosevelt’s election had ruled that maximum work-hour legislation and protection of union activity were violations of a constitutionally protected right of contract. Justices Van Devanter, Sutherland, McReynolds, and Butler dissented in 1934 when a majority of the Supreme Court began to abandon these restrictive rulings. Had these Justices been assigned authority to choose successors, Justices Black, Frankfurter, and Douglas would never have been on the Court to sustain basic federal modern economic regulation that is now accepted by all.

A major second flaw in the process of selecting judges in Israel is the confidentiality and relative secrecy of the process. The names of candidates for all judgeships and particularly for vacancies on the Supreme Court should be publicly announced and the public invited to submit considered evaluations and opinions. Israel need not copy America’s procedure which, since the unhappy experiences of Robert Bork, Clarence Thomas, and Brett Kavanaugh, have turned into media circuses. But a system that conceals the names of judgeship candidates until a select committee has made its choices should be unacceptable.

Maybe realpolitik requires that those urging judicial reform cannot totally exclude judges from the selection process. But they should be aware that in the United States – which most opponents of judicial reform cite as proof that judicial supremacy is desirable – judges are purposefully excluded from the judicial selection process.

About the Author
Nathan Lewin is a Washington, D.C., attorney who specializes in religious freedom cases before the US Supreme Court.
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