More than a quarter of the composition of Israel’s Supreme Court will be determined in the coming weeks by the state’s Judicial Selection Committee. The identity of the justices to be appointed is critical to the country’s future, as the court is a key player in the Israeli culture war.
In the Israeli public debate, two differing camps have taken root: those who view the candidate’s “professionalism” as the sole selection criterion, and those who believe that significant weight should also be given to the “representativeness” of major identity groups within the court. What is the right balance between professionalism and representativeness in the selection of judges, and who should make that determination?
The tension between representativeness and professionalism is not unique to the legal sphere. For example, should senior officials in the Finance Ministry’s Budgets Department – who have a great deal of influence on our quality of life – be appointed solely in accordance with professional standards, or should its staff reflect heterogeneity with regard to socioeconomic worldview, in a way that represents the full range of opinions about the state’s role and its responsibility to its citizens?
And in the army: Would the professional decisions of a General Staff consisting entirely of right-wing generals be the same as those of a General Staff whose generals all hold left-wing views? Although a commander’s political orientation is not known to the public, and rightly so, it clearly affects the way he reads the geopolitical picture – and therefore, in certain instances, influences his decisions.
Back to the judges: We are comfortable thinking of judges as objective professionals whose work is quasi-scientific in nature and independent of the surrounding environment, society, or culture. But that is not the reality. In a chess match, the personal attributes of a player do not affect the applicability or interpretation of the rules of the game. In contrast to the legal world, the judge’s values and identity affect the way he or she interprets the law and administers justice.
A typical legal dilemma does not have one true answer, but several legitimate alternatives the judge must choose among through the exercise of his/her discretion. As former Supreme Court president Aharon Barak described, in “easy” cases the range of legitimate possibilities – the playing field where discretion is exercised – is limited, while in “difficult” cases the range is wide.
As a rule, judges do not speak in simple true or false binaries, but rather in a language of weighing and balancing that requires the exercise, sometimes intensely, of personal values-based choices. Of course, judges are not permitted to rule according to their personal preferences and are bound by the principles of the legal system and precedents, which delineate for them the boundaries of legitimacy. But when choosing among the options available within the realm of legitimacy, he or she cannot shed his/her values or identity, and therefore the “who” influences the “what.”
Nevertheless, the appointment process must not be made political. That is the situation in the United States, where the decisions of judges appointed by Republican presidents differ markedly and systematically from those of judges appointed by Democratic presidents. For example, in the case of a woman complaining of gender discrimination, if the three judges hearing her case are Democrats, she will have a 75% chance of the court deciding in her favor, but if the three judges are Republicans, her chance of prevailing drops to 31%. This is a bad method as it causes the judicial process to yield inconsistent results and is painted as political and unreliable.
Therefore, proposals raised in Israel to transfer judge selection authority to the Knesset, or that Knesset judicial confirmation hearings be conducted, should be rejected. Importing American-style politicization of the judicial process to Israel, when we have no constitution or full bill of rights to delimit the boundaries of legitimacy, would pose a real danger. We must recognize the relationship between the “who” and the “what,” but the considerations regarding the court’s proper measure of representativeness should be entrusted to a body that is demonstratively non-political, even if it has a degree of representativeness.
The Judicial Selection Committee charged with selecting the four new justices is such a body. Its composition reflects an appropriate balance between the representative (four politicians) and the professional (three judges and two members of the Israel Bar Association). The stipulation that seven of the nine committee members approve a Supreme Court appointment is also commendable, as it demands compromise regarding the identity of those who will be entrusted with the power to decide the most important dilemmas of our national life.
The writer is president of the Jewish People Policy Institute and a professor of law at Bar-Ilan University.