Israeli parallels to the Barrett Supreme Court appointment – analysis
The drama and controversy taking place in the US over the appointment of Barrett is not dissimilar to what happens here when vacancies open up on the court.
By HERB KEINONUS Court of Appeals for the Seventh Circuit Judge Amy Coney Barrett reacts as US President Donald Trump holds an event to announce her as his nominee to fill the Supreme Court seat left vacant by the death of Justice Ruth Bader Ginsburg. September 26, 2020. (photo credit: CARLOS BARRIA / REUTERS)
In an interview Sunday evening on the CBS program 60 Minutes, Democratic presidential nominee Joe Biden said that if elected, he would establish a bipartisan commission to recommend how to reform the US court system, “because it’s getting out of whack.”Biden’s comment came against the background of the US Senate confirmation hearings for Judge Amy Coney Barrett to fill the position on the nine-member US Supreme Court that was left vacant in September when Ruth Bader Ginsburg died. On Monday evening, the Republican-controlled Senate confirmed Barrett by a vote of 52-48, and she was immediately sworn in.Her appointment will solidify a conservative 6-3 majority among the justices that could leave a mark on America for a generation, or even longer.The appointment, and the way it was rushed through just a week before the US elections, has led to calls for Biden – if he is elected and the Democrats win control of both houses of Congress – to “pack the bench,” meaning, to raise the number of supreme court justices so that he would be able to make appointments and theoretically tip the scales on the court toward the liberals.Biden has been cagey regarding whether he would do this – the US Constitution does not establish the size of the Supreme Court, and the current number of justices is the result of an 1869 law – and when asked point blank about the matter, he replied: “If elected, what I will do is I’ll put together a national bi-partisan commission of scholars, constitutional scholars, Democrats, Republicans, Liberal, Conservative. And I will ask them for over 180 days, come back to me with recommendations as to how to reform the court system because it’s getting out of whack, the way in which this is being handled.”Consider that statement for a minute, and then consider what would happen if a prime minister, prime ministerial candidate, or justice minister in Israel were to say that the judiciary in this country needs to be reformed because it is out of whack.The earth would tremble and the person would be skewered by some as anti-democratic, or worse. For some the judiciary in Israel is sacred, and any suggestion at reform is dismissed as a threat to the very fabric of the country’s democracy.Just ask former justice ministers Daniel Friedman or Ayelet Shaked, who were fiercely criticized when they raised the issue of judicial reform during their tenures; reforms ranging from curbing the reach of the court to balancing out its liberal worldview with more conservative judges.Take this headline from a Haaretz editorial in April 2016 as an example: “Israel’s Justice Minister Must Stop Attempts to Fundamentally Distort Israeli Democracy.”Among the editorial’s complaints was Shaked’s intention to appoint right-wing judges, saying that this would lead to “politicization” of court rulings. In her years at the Justice Ministry from 2015-2019, six new Supreme Court judges were appointed, five of them considered conservative.Shaked neither hid her intentions nor apologized for wanting to appoint justices with a conservative worldview, arguing that the court had, over the years, moved too far to the Left and was badly out of step with Israeli society.Had Shaked wanted to appoint judges on the Left, however, it is doubtful that a similar Haaretz editorial warning that she was trying to distort Israeli democracy would have been penned.Likewise, had the US Supreme Court now had a 6-3 liberal majority, it is unlikely that Biden would have declared the judiciary “out of whack” and called for the establishment of a commission to recommend reform. It all comes down to whose ox is being gored.The drama and controversy taking place in the US over the appointment of Barrett is not dissimilar to what happens here when vacancies open up on the court.Long-standing debates over how Supreme Court judges are appointed has led to calls to reform the process – calls made by Shaked herself – and make it more similar to the American system.Currently, judges are appointed by a nine-member committee made up of the Justice Minister and one other cabinet minister, two members of the Israel Bar Association, two Knesset members and three Supreme Court justices. Seven of the nine members are required to vote in favor of the appointment for it to go through.In the US, by contrast, the president nominates, the Senate Judiciary Committee holds what are often grueling hearings, and then the full Senate votes.On the campaign trail in 2019, Shaked proposed doing away with the Judicial Appointments Committee altogether, and simply allowing the justice minister the authority to nominate a judge who will then come to the government and the Knesset for approval – a modified American system.But the controversy over the process in the US should give those here who want to adopt an American-style process some pause. Both the controversy over how Barrett was appointed, a controversy likely to persist now for years, as well as the contentious and ugly Senate hearings four years ago for Brett Kavanaugh, shows that the US system is not foolproof.In fact, there may not be a foolproof way to appoint judges, as those whose worldview is in the minority on the court are likely to feel that the court is stacked against them. In the US it is now a feeling held by many on the Left, in Israel by many on the Right.What is ironic about this is that the US is a liberal society now with a conservative Supreme Court, and Israel a right-wing society with a left-wing court. That situation has led to calls for judicial reform in both lands. But while in Israel any talk from the Right on reforming the judiciary system is quickly labeled undemocratic, calls from Biden for court reform in the US are viewed in a much more understanding light.
