When surveys are taken on who is more popular-politician or judges, the hands-down winner are judges. Most statistical research rate politicians as among the least favourable of professions. Of course, this does not diminish the desire of people to strive for a political career. The allure of power cannot be underestimated.
Does this perception mean that politicians should never be involved in the judiciary choosing of judges. Many times, I have heard people arguing: do you really want a politician interfering in the pristine, pure judicial process? Some will personalize this criticism arguing: do you really want so and so to be involved in the judicial process!
Nevertheless, I would like to argue for the importance, indeed the absolute necessity, that for all western democratic countries, the political element of government absolutely must be involved in choosing Supreme Court judges.
Indeed, in all Western European countries, it is the government that is the main power in choosing the judiciary. For example, in the United States, and its balance-of-power form of government, there are 2 organs of government involved. The president appoints Supreme Court judges; and the Senate has a right to veto these appointments. The judiciary can only make suggestions, that is the limit of their power.
There are important reasons why this political involvement is so important in the functioning of democracy. By and large, people have a simplistic notion of how the judiciary operates. There is a tendency to believe that a judge hears a particular case, she then applies the law in the same way that a mechanic looks at a mechanical problem: finds the best technical solution. Problem solved. This is absolutely not the case even though some thinkers believe that it is. World view plays a vital role in rendering a judicial judgment. In Israel and the United States there is a divide between conservatives and liberals or progressives. What is critical to understand: the conservative/liberal divide plays itself out in the choice of legal philosophy of a particular judge. Conservatives have a more textual basis in their interpretation of the law, while liberals or progressives tend to be judicial activists allowing other factors beyond the legal text to determine judicial judgements.
I would like to provide an example of this conflict in interpreting law. Is abortion a right or an evil? As we know, the right to life is one of the most basic rights of the American Constitution with liberty and happiness. Of course, this right applies to all human beings. The dilemma is whether an embryo is a human being or merely an appendage to a woman’s body? If one believes that a human being is formed right at conception, then the idea of killing a human being is intolerable. On the other hand, if one believes that the human person is formed only after 24 weeks or even later, right after birth, then abortion becomes more than permissible. A law prohibiting abortion would be immoral since it infringes on the rights of women to fully control their body.
Both sides have a legitimate case to be made!
Should abortion be legal?! Is this a matter of law? Absolutely Not! It is a moral question that legal institutions on their own cannot decide. It is a social question. Society and its representatives are the proper entities to determine the law since it reflects a vision of what a moral society should be. Only when society legislates the issue, then-and only then-can the judicial system take a stand and formulate proper laws.