Serving Justice By Not Publicly Serving Justices

By Kathleen Peratis

Published October 28, 2005, issue of October 28, 2005.
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There are no daily front-page stories. There are no slick public relations campaigns touting or trashing potential candidates. And there are no public hearings on nominees’ fitness to serve. In Israel, the selection process for new Supreme Court justices unfolds behind closed doors, and information made public — even about the identity of the candidates under consideration — is largely confined to leaks and rumors.

Though the Supreme Court of Israel has the power to shape Israeli society for generations to come, even we in the Diaspora pay little attention to how Israel appoints its justices and chief justices. For example, who knew that Israel’s next chief justice — who will take office in June 2006 — is a woman?

The chief justice of the high court, officially called the president, is customarily designated by seniority alone. And so when Chief Justice Aharon Barak retires next summer, the next most senior justice, Dorit Beinisch, is expected to succeed him. Because justices on this 14-member Court are required to retire at age 70, vacancies are comparatively frequent and usually predictable.

But the most conspicuous difference between Israel’s system of choosing justices and ours is who does the choosing. In Israel, the official body at the center of the process for filling vacancies is not the executive or the legislature, but a select committee on which the Supreme Court itself has the dominant role. In the United States, by contrast, the Supreme Court, and indeed the entire judiciary, has no official role at all in choosing federal court judges at any level.

Israel’s nine-person committee consists of the chief justice and two other sitting justices chosen by him or her; the justice minister and one other minister; two Knesset members, one from the governing coalition and one from the opposition, and two people chosen by the bar association.

While the justice minister has significant influence, there is no doubt that the chief justice — or at least this chief justice — is the big kahuna. His support for a candidate is usually decisive. The politicking and horsetrading among committee members in their deliberations is said to be fierce, but because it all happens behind closed doors, even expert court-watchers can only speculate about how and why a particular candidate was chosen. According to Rachel Benziman, executive director of the Association for Civil Rights in Israel, only baby steps have been taken recently toward greater transparency: In the last few years, the public at least knows who the candidates under consideration are.

The pool of candidates eligible for consideration — who, in contrast to Harriet Miers, must be superbly qualified — is also affected by the necessities of diversity. It is understood that there will be at all times at least one justice who is religiously observant and one who is of Middle Eastern origin. In addition, whether by conscious process or not, there are now four women on the high court, and there is one Arab, Salim Joubran, who was appointed last year.

Is this selection system, so different from ours, brilliant or dysfunctional?

The Israel Supreme Court pronounces itself satisfied. Soon-to-be chief justice Beinisch has said that the system ensures “professional criteria” will be applied. And she sees no advantage to a system in which “the points of view [of nominees] are well known” prior to their selection.

According to Israel’s great feminist icon Alice Shalvi, founder of Israel Women’s Network, the system produces a superb court: “The fact that the Supreme Court is so widely respected by almost all sectors of the public is an indication of its objectivity and integrity. There have been some truly great justices, including the current president, Aharon Barak, a real mensch.”

Others, however, say that the court is a “self-perpetuating oligarchy.” Constitutional law expert Ruth Gavison — who herself is mentioned as a candidate for the next open seat on the court — calls the Supreme Court a “sect which is too uniform and effectively perpetuates itself.” Jerusalem Post contributor Jonathan Rosenblum says the system’s efficiency is overrated. He calls it “the judicial equivalent of Mussolini’s getting the trains to run on time.”

While it is true that there is comparatively little dissent on the Israel Supreme Court — according to one study, there are dissents in only 3% of the cases, compared with more than half of United States Supreme Court cases — that may be a sign that the justices engage in respectful negotiation and compromise rather than an indication of lock-step conformity. It is also true that the status quo will change more slowly under the Israeli system than it will under ours, but it is not at all clear that this is a defect.

Much of the criticism of the process comes from those whose real objection is the court’s liberal bent. Critics of the process, such as Paul Eiderberg of Bar-Ilan University, attribute this to the Supreme Court’s “exalting of democratic rights over Jewish rights” and inbreeding. They cite as proof Barak court rulings expanding the concept of “Who is a Jew,” requiring Israeli military protection of Palestinian olive harvesters in the occupied territories and establishing the right of lesbian couples to adopt each other’s children.

The Israeli public generally supports the Supreme Court’s rulings, apparently seeing no inconsistency between Jewish values and democratic values. Not bad for a fledgling Middle Eastern democracy.

If I had been asked at its inception whether the judicial selection system would work, I would have been skeptical. In 2005, I would observe: Don’t fix it, cause it ain’t broke.

Kathleen Peratis, a partner in the New York law firm Outten & Golden, is a trustee of Human Rights Watch.

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