Commentary: Judicial Appointments Reform: A Hard Place
to Stop
By Yitzhak Klein, Director,
Last month’s change in the system of appointing Supreme Court judges, which for the first time gives the government of the day a veto over appointments to the Supreme Court, represents a significant achievement for the cause of Parliamentary democracy in Israel. For the first time since 1953, the Knesset has given elected officials real power in the judicial appointments process.
Advocates of the new law, particularly its author, MK Gideon Saar, regard the change as a compromise between the old
system, which gave the Supreme Court de facto control of appointments to the
Judiciary, and those who believe that judges ought to be appointed by the
people’s elected representatives.
However, the law is likely to prove an unstable, temporary compromise. It is likely to lead either to a retreat, back to an appointments system completely controlled by the judiciary, or forward, to a system in which the control of judicial appointments is vested in the Executive and Legislative branches.
One important source of the crisis of the Israeli judiciary is its political hyperactivism. The Supreme Court has become the decision-maker of last resort in critical issues of economic, security and social policy, overriding the Knesset and the government. Since the judges appoint themselves, their considerable power rests on no popular mandate; they have been likened to an unelected superlegislature, able to override the popular will as represented by elections. Appointments to the bench are thus inherently controversial. Hitherto, judges have appointed new judges to the bench who agree both with the political orientation of the bench and with its activist role, questionable though the latter may be from a democratic perspective.
The new law gives elected officials an important handle on the judicial selection process and, consequently, on the role the judiciary will play in public life. It guarantees, however, that the public will continue to perceive the Bench as controversial and politicized. The new law will turn every round of judicial appointments into a political circus, with government and the judges jockeying for public opinion and concluding shady deals behind closed doors. The judges will appear to the public as just another political interest group, bargaining and maneuvering to preserve their power. Nothing could be more corrosive of the majesty of the law and the prestige of the judiciary.
While the new law moves