Judicial Selection: Crash Site or Launch Point?

The selection of judges is the most urgent issue on constitutional reform. The Coalition’s plan to bring it to a vote caused strikes, university closures, and public dissents from within the Likud camp.

President Herzog has now tabled a comprehensive reform package. He has called on all parties to negotiate.

Sometimes, you leave the toughest issue for last. You hope the momentum from other agreements will carry you over the finish line.

Sometimes you deal with the toughest issue alongside the rest. You look for trade-offs.

Here and now in Israel, I suggest the judicial selection issue be dealt with and resolved, by agreement, first of all, and quickly.

An impossible dream?

Achievable, I would say, if all parties wish to act in good faith.

Let me suggest how.

First, focus on the long-term future, rather than relitigating the past. There were, I believe, concerning aspects to the left-of-center “judicial revolution” in Israel. The “Court party” sometimes overreached. The High Court itself was drawn from a narrow section of society. In the selection process, sitting judges sometimes shut out fresh new voices. The work product of the court was sometimes too willful, rather than being sufficiently tethered in legislation and precedent.

That was then. It is already now. The court is already more diverse. Almost half of High Court judges are conservatives. Even with the existing selection system, right-of-center governments have often achieved their preferred appointments.

What counts most, however, is the future. Not just the next few years, but the long course – we can hope or pray – of Israeli history to come.

Second, I would urge negotiators to distinguish means and ends. The “ends” of judicial selection should be agreed upon by all reasonable people: a judicial system that is both outstanding and trusted. Once that is accepted, the parties should be flexible in finding an agreed-upon selection mechanism to achieve that.

President Herzog’s proposals in March have already provided useful guidance on the qualities of an outstanding and trusted court. I would suggest these qualities: judges are knowledgeable about the law; as a group, they have different backgrounds and philosophies; each and every single one is prepared to listen to each litigant with an open mind and then decide on the legal merits, regardless of their personal politics or who appointed them; all of them work diligently; all strive to produce judgments that are clear, precise and succinct.

Before deciding on the mechanism, the parties can and should agree on the qualities that every judicial selection committee should be looking for. These criteria can be expressly included in a basic law.

It is not enough for a court to be intrinsically outstanding. A court must be perceived as outstanding.

In Israel’s case, the Court needs to be trusted across Israeli society; by Jews in the Diaspora who support Israel or might wish to immigrate there; by key members of the international community, including relatively friendly governments who provide Israel with diplomatic, economic or security support.

The high quality and credibility of the Israeli court system is a strategic assist for an embattled Israel. It helps to attract and inspire potential friends and allies. It can be a shield against hostile powers, including those who would intervene in Israel’s internal affairs.

Now let us look at means – mechanisms for selecting judges – that secure those key ends: inherent excellence and public confidence.

There are actually many mechanisms that would work reasonably well. The parties to constitutional negotiations need to avoid the obsessive or prideful pursuit of any particular mechanism.

There is ample room for innovation. Indeed, some innovation in selection mechanisms might be the way to get over antipathies based on past events or focused on current personalities.

I do not think it is absolutely necessary, for example, to involve sitting judges on a selection committee. We can respect their expertise, but we can also be aware of the risk of ideological self-perpetuation.

Similarly, I doubt it is absolutely necessary to involve bar associations. The politics of professional associations can be just as ridden with cronyism, personality politics, and opportunism as state politics.

Constitutional negotiators can think creatively.

The selection panel might, for example, include some legal experts chosen by the President of Israel.

There is even room for a public representative on the committee who is not a lawyer. Someone elected by the living winners of the Israel prize?

No doubt there are many other creative possibilities.

The selection mechanism, must, however, in all events foster, not undermine, confidence in the judiciary.

The Coalition does need to unglue itself from its earlier proposal on judicial selection  That proposal would allow the Coalition (or its nominees on the selection committee)  in effect to select the two new judges to the Court – and its next president.

This “two plus one” proposal is not specifically required by anything in the platform of any coalition parties, not even the part of Minister Smotrich.  (His party platform merely called for a majority on the selection committee to be elected politicians – not all, necessarily, from the governing coalition).

The two-plus-one proposal is not even internally consistent; the Coalition itself would require beyond-Coalition support for later appointments.

Judges chosen by the “two-plus-one” mechanism might actually be excellent, but they would be tainted by the selection mechanism.

Israelis are good at nicknames;  I can imagine the two-plus-one judges  might be tagged as something like the  Hebrew equivalent of the “three stooges.”

Let me offer a scenario.

Professor Gideon Sapir has been mentioned in the media as a potential preference by the Coalition. I recently read his book on the constitutional revolution. It is impressive. My initial sense is that he would be a worthy appointment to the High Court – clear in his thinking and writing, highly informed, and balanced in his assessments – and that he would deserve support from many different factions, not only from the Coalition. If he were appointed to the High Court by the “two-plus-one” method, however, he would have little or no legitimacy. Nor would the High Court as a whole. Would he even want to serve under such circumstances?

Constitution building is not a zero-sum game. Here and now, despite all the overreaches on all sides that have brought us here, is a historic opportunity. If the parties finally work together, the current moment can a lasting contribution to the future of Israel that all sides can own and be proud of. A breakthrough on judicial appointments could make all the rest possible.