Netanyahu backs the Supreme Court's anti-democracy

The PM recently quashed a bill to reform the judicial appointments process that could have paved the way to combating public distrust of Israeli courts and ensuring that democracy is preserved.

By EVELYN GORDON
supreme court 224.88 (photo credit: Ariel Jerozolimski [file])
supreme court 224.88
(photo credit: Ariel Jerozolimski [file])
Shaken by the domestic and international uproar over the so-called boycott law, Prime Minister Binyamin Netanyahu decided to put his foot down over the next “anti-democratic” proposal. Unfortunately, he chose exactly the wrong bill to quash. For unlike the boycott law, which indeed had some undemocratic elements, a bill to change the way Supreme Court justices are appointed would have made Israel more democratic. And the court itself would have been one of the chief beneficiaries.
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The bill, by Likud MKs Ze’ev Elkin and Yariv Levin, would have required potential appointees to attend a public hearing before the Knesset Constitution, Law and Justice Committee, which would then have the right to veto any candidate it deemed problematic. Opponents charged that this would undermine the court’s status, and thereby Israeli democracy itself, and Netanyahu quickly capitulated: He announced that he “unequivocally opposes the bill,” and that his government “will respect and defend the High Court.”
The truth, however, is that Israel’s judicial appointments process is virtually unique among the world’s democracies in its anti-democratic nature, and this proposal would have added a needed democratic element. Currently, Supreme Court justices (in fact, all the country’s judges) are chosen by a nine-member panel on which the legal establishment, rather than the public’s elected representatives, has a majority: It consists of three sitting Supreme Court justices, chosen by the court president; two Bar Association representatives, chosen by the Bar’s executive; two ministers, chosen by the cabinet; and two MKs, one coalition and one opposition, chosen by the Knesset.
By contrast, most democracies leave Supreme Court appointments entirely to the executive and legislature, according the judiciary no role in the process at all. In America, for instance, the president appoints justices and the Senate confirms them. In Germany, the upper and lower houses of parliament each select half the justices. In Austria, the government and parliament each appoint half. In France, the president appoints nine of the 15 justices, while the heads of the two houses of parliament appoint three each. In Switzerland, parliament selects the justices; in Sweden, the cabinet does. In Australia, Canada, Belgium and Norway, justices are appointed by the monarch but either nominated or approved by the cabinet. In Japan, the cabinet appoints the justices and the electorate must ratify its choices in the next election.
Yet what makes Israel’s system so problematic is not its uniqueness, but its outcome: It effectively allows sitting justices to choose their own successors. Not only do the justices control a third of the panel directly, but they can usually count on support from the Bar representatives – who, after all, must often argues cases before the Supreme Court – and at least one MK, since coalition and opposition representatives usually split their votes. Moreover, a longstanding tradition grants the justices a veto, meaning no candidate of whom they disapprove can ever be appointed.
The result is that Israel has one of the most monolithic Supreme Courts in the world. Its uniformity was underscored by a study a few years back which found that minority opinions were handed down in only 3% of all Israeli Supreme Court cases from 1948-1994, compared to about 60% in the United States. Even on issues where the public is deeply divided, and on which, as the late Prof. Ze’ev Segal put it, “there is clearly no one ‘correct’ solution to a complex legal question,” Israeli Supreme Court rulings are usually decided unanimously, or at best by lopsided majorities. Narrow majorities, like the 5-4 decisions common in the U.S. Supreme Court, are virtually unheard of in Israel.
This has a particularly pernicious consequence: Because that sizable proportion of Israelis who don’t share the court’s uniform worldview feel that their goals and values are consistently disregarded, and often actively thwarted, confidence in the court has been plummeting at an alarming rate. An annual survey conducted by Prof. Arye Rattner of Haifa University found that only 55% of the general Jewish public (and 54% of the Arab public) expressed confidence in the court this year, down from 80% in 2000. The results were even worse among sectors of society that deem the court’s worldview most antithetical to their own: Only 14% of haredi (ultra-Orthodox) Jews and 28% of settlers voiced confidence in the court.
No democracy can long survive if large segments of the public distrust the courts, for the courts are democracy’s bulwark against anarchy: Absent a peaceful mechanism to settle disputes, violence would become the obvious alternative. And that is precisely why most democracies entrust Supreme Court appointments to the elective branches of government: Because these branches change hands frequently, such a process ensures a spectrum of opinion on the court, which in turn ensures that no segment of society feels itself consistently unrepresented.
This wouldn’t matter if Supreme Courts dealt exclusively with simple cases that have only one possible “correct” legal answer. But all Supreme Courts must sometimes address controversial political and social issues on which there is no one “correct” answer, meaning that justices with different worldviews will inevitably reach different conclusions. That’s precisely why split decisions are common in other countries’ Supreme Courts. And since Israel’s Supreme Court holds that “everything is justiciable,” it rules on such controversial issues even more frequently than its counterparts in other democracies do.
The justices’ consistently monolithic worldview thus undermines one of democracy’s fundamental premises: that any group can potentially effect change by persuading the majority to its view. For given the court’s willingness to overrule the government on virtually any issue, those with different worldviews have little chance of ever seeing their policies implemented, no matter how many elections they win. And that in turn weakens their faith in democracy as a whole.
Hence both for the sake of Israeli democracy and for that of the court itself, a reform of the judicial appointments process is desperately needed. Unfortunately, it seems it will have to await a different prime minister.
The writer is a journalist and commentator.