Checks and balances are always greener

How could Knesset hearing make for a better Supreme Court?

By CAMERON S. BROWN
Supreme Court 311 (photo credit: REUTERS)
Supreme Court 311
(photo credit: REUTERS)
At next Sunday's cabinet meeting, a crucial bill put forth by Likud MKs Ze'ev Elkin and Yariv Levin will finally be put for a vote. The bill essentially aims to create a legislative check on the Supreme Court’s power by requiring any candidate to undergo a public hearing in the Knesset Law, Constitution and Justice Committee — which would then have the power to veto the nomination.
The bill’s proponents have dismissed claims that this reform could cause irreparable harm to Israel's democracy, pointing to America as an example, where the Senate must confirm presidential Supreme Court nominations. How could such a process undermine democracy, they ask, if it works so well in the United States?
Unfortunately, as so often is the case when deliberating governmental reform in Israel, people point to the American example without truly understanding it. What can we actually learn from the American confirmation process and what does it foreshadow about how such a process would affect judicial selection in this country?
The first thing we should be aware of is that the US Senate hearings themselves are largely a sham. What candidates actually say at these hearings is generally of little consequence because — with very rare exception — senators vote mainly along party lines. Most Democrats object to Republican-nominated candidates, supporting nominees from their own party, and vice versa. Correspondingly, the questions put forth by Senators have more to do with politics than substantive issues regarding jurisprudence.
It only gets worse. On the rare occasion when genuine issues of substance are raised in the Senate, candidates have no incentive to be forthcoming with their positions. The key to success in these proceedings is to stay as uncontroversial as possible, as failure to do so gives their political opponents ammunition to torpedo one's nomination.
Nothing could demonstrate this clearer than the nomination of then Supreme Court nominee Elena Kagan in the summer of 2010. In a book review published in 1995, Kagan herself wrote that, more often than not, candidates have successfully "rebuffed all attempts to explore their opinions of important principles and cases." The Senate, for its part, had ceased "to engage nominees in meaningful discussion of legal issues." The result is that the confirmation process has taken "on an air of vacuity and farce," with the Senate "incapable of either properly evaluating nominees or appropriately educating the public."
Yet when Kagan herself was a nominee, and specific questions came her way about various issues, Kagan often fell back on the mantra of her predecessors: "All I can say is that I will try to decide each case," one at a time.
Of course, even if a nominee were to answer specific questions about how they might decide future cases — which is what the proponents of the current Israeli legislation seek — their answers would be worthless. The very nature of an independent judiciary means that judges can say whatever the Knesset members on the committee, and their constituents, would want to hear, only to be free to change their opinions as much as they wanted when time came to write their judicial opinions.
In the American case, former Supreme Court Judge David Souter, a recently retired justice appointed by George H. W. Bush in 1990, is a quintessential example. Senior Bush administration staffers were sure that Souter would be a strong boost to Court conservatives, while the National Organization of Women vehemently protested his nomination. In the end, Souter became a leading liberal member of the court, upholding a woman's right to an abortion in the critical Planned Parenthood v. Casey case of 1992.
Another claim put forward by the bill's sponsors is that the confirmation process will make the court more diverse and representative of the population at large — and, specifically, will lead to Mizrahim making it to the bench. Here again, the American example suggests that there is little reason to believe this is necessarily the case. The current nine members of the Supreme Court, for example, consist entirely of three Jews (who make up less than two percent of the U.S. population) and six Catholics (who make up less than a quarter of the US population). Not a Protestant among them, despite Protestants making up a majority of the American population.
As an aside, it is curious that, in a day and age when being Mizrahi no longer seems a barrier to becoming anything – IDF chief of staff, head of Mossad, Defense Minister, Foreign Minister, party chairman –, suddenly this issue of discrimination should re-emerge yet again. Moreover, after Israel saw the selection of its first Arab judge, Salim Joubran, in 2003, and Supreme Court President Dorit Beinisch as the first woman to occupy that position, does anyone really think that the court is still a white (Ashkenaz), male clique which refuses to let others in?
Finally, one of the bill's sponsors, Elkin, suggested that the public hearings will "allow the public to be more involved in the process of choosing High Court justices, in order to increase the public’s confidence in the court system." Elkin added, “Transparency can only strengthen democracy and the public’s confidence in Israel’s judicial system.”
The irony of this statement is that the public has always had far greater faith in the Supreme Court than in the Knesset or political parties. Survey after survey shows the judiciary winning nearly twice the confidence than the Knesset (around 65% to 30%). So how exactly will hearings by unpopular Knesset members instill more trust in a relatively far more popular institution?
Of course, here again, the comparative context is worth noting: the unspoken paradox of democracy is that we trust our elected officials far less than those we do not elect. Not only in Israel and America, but throughout the democratic world, legislatures and political parties almost always fair far worse in public opinion surveys than do judiciaries or militaries.
The reason for this may return to the initial point about why such hearings are a farce in the first place. We believe that politicians are almost always motivated by ulterior motives, that their remarks at hearings, their speeches, votes and policies are primarily geared toward one end: to win the next election and to stay in power. When officials are appointed – and are, ironically, unaccountable to the public for their continued tenure – we have little reason to cast doubt upon the authenticity of their motives and, thus, are more likely to trust their actions.
The writer is the former deputy director of the Global Research in International Affairs Center (GLORIA) of the IDC in Herzliya.