Choosing justices

It was surprising to witness the firm opposition to Justice Minister Ayelet Shaked’s seemingly reasonable suggestion that seniority cease to be the criterion for choosing the Supreme Court president.

July 11, 2017 20:21
3 minute read.
Justice Miriam Naor and Justice Minister Ayelet Shaked

Justice Miriam Naor and Justice Minister Ayelet Shaked July 9, 2017.. (photo credit: MARC ISRAEL SELLEM)


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Meritocracy is one of the foundations of a strong, effective society and economy. Ensuring that the best possible candidate for a given position is chosen fosters growth and innovation.

Cronyism and seniority, in contrast, tend to dampen motivation. If your chances for advancement have nothing to do with how hard you work or how talented you are, why strive to excel? All you need to do is make the right connections or hang on long enough until you are promoted.

These are simple and widely accepted axioms. So it was surprising to witness the stiff opposition to Justice Minister Ayelet Shaked’s seemingly reasonable suggestion that seniority cease to be the criterion for choosing the Supreme Court president. Instead of automatically choosing the justice who has served the longest, argued Shaked, the Judicial Selection Committee should be the one to pick the justice whom it deems to be best qualified for the position of president.

Supreme Court President Miriam Naor, who retires in October, strongly opposed Shaked’s suggestion. But the arguments she made were unconvincing. “If it isn’t broken, don’t fix it,” Naor said. “The method has proven itself as working properly doing away with it will harm the public’s faith.”

But has Naor considered the possibility that moving from seniority to meritocracy would improve the functioning of the court? It might work now, but it could work even better if a president with the best skills for the job is chosen.

Naor and former Supreme Court president Dorit Beinisch also warned that abolishing seniority would “politicize” the court, because justices interested in being appointed to the position might be tempted to change their legal decisions in order to find favor with the politicians who sit on the Judicial Selection Committee.

However, this fear hardly seems justified. The committee is made up of politicians with diverse outlooks as well as several Supreme Court justices. Why would a judge compromise basic values and rule against his or her conscience on the off chance that doing so would improve his or her chances of being appointed president? And why is choosing the best candidate politicization? If anything, doing so would strengthen the standing of the Supreme Court.

While we do not question the intellectual abilities and industriousness of any of the serving Supreme Court justices, we do suggest that the most senior justice might not be the most qualified to serve as president. The skills it takes to be a good justice do not fully overlap with those needed to be a good president.

A “first among equals,” the president is responsible for managing the time of the court, appointing panels to cases and other functions unrelated to the role of justice. Not all justices are good at managing their own time. Should they be responsible for managing the time of others? Progressive media outlets like Haaretz that tend to discount the importance of tradition when it comes to so-called “religionization” in the public school system or when soldiers are taken on field trips to discover Jewish roots in Jerusalem or Hebron have suddenly discovered a reverence for tradition when it comes to the Supreme Court. Seniority as a means of choosing the president is not anchored it law, rather it is just the way the court has customarily chosen its presidents over the decades.

Where does this sudden reverence for tradition come from? Many are rightly concerned about recent attempts to weaken the Supreme Court’s autonomy. Maintaining the independence of the Supreme Court is essential. A strong judicial branch is integral to Israeli democracy in the broadest meaning of democracy, not just as a state ruled by the majority but as a state that protects the basic, inalienable human rights of minorities regardless of their political representation. As long as Israel has no constitution that protects human rights, the Supreme Court must remain a bulwark against the tyranny of the majority.

Abolishing seniority, however, does not undermine the Supreme Court’s autonomy. If anything it will strengthen the court by ensuring the most qualified justice is chosen as president.

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