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9.02.2009

Quiet ending (for now) to the debate over judicial appointments in Israel

A couple of weeks after Justice Sotomayor’s nomination to the U.S. Supreme Court was confirmed, another, longer and more intense struggle over judicial appointments has reached its quiet ending, with the appointment of three new justices to the Supreme Court of Israel.

Israel is arguably one of the prime examples of what I have termed elsewhere “juristocracy”. Not a single week passes by without the Supreme Court issuing a major decision on matters of high politics, key public policy issues, the future of prominent politicians, and so on. This activism reflects a confluence of institutional, ideological, and socio-political factors that are beyond the scope of this forum (I, and others, have written about these issues in other forums). Most political opposition to the Court has come from either right-wing nationalists who view the Court as being too “leftist”, unrepresentative, and “counter-majoritarian”, or Jewish orthodox circles who accuse the Court of forwarding its own liberalizing anti-religious agenda. In a recent statement, one of Israel's main religious leaders said that "the courts are twisted and the judges don’t believe in anything. They are apostates.”

As long as Aharon Barak – the former proactive Chief Justice and arguably the most influential, philosopher king-like, figure in Israel’s constitutional history – lead the Court, it was able to block attempts to appoint anti-activist judges. However, Barak reached mandatory retirement age (70) in 2006, and was replaced by the somewhat less influential CJ Dorit Beinish. The backlash against the Court started to yield some results. In 2007, the (some say personal) rivalry between then Minister of Justice, Daniel Friedman, and the new CJ Dorit Beinish triggered the introduction of a law that limits the incumbency of chief justices to seven years. In 2008, a new law was introduced by anti-activism politicians that requires a “super majority” of seven votes in the nine-member appointments committee to approve a new appointment to the Supreme Court. Because five members of the committee are incumbent Supreme Court judges (3) and representative of the bar association (2), the new procedure necessitates support for an appointment from the “political” component of the committee – the Minister of Justice, another minister, and two Knesset (parliament) members. And in June 2009, the political backlash against the Court reached another peak when two nationalist right-wing MKs critical of the Court’s “unrepresentative” composition and ideological tilts were elected to the nine-member judicial appointments committee, thereby further threatening the old establishment’s grip over the Supreme Court composition and interpretive direction. At that point, a high noon-like confrontation, and possibly a long-term stalemate in judicial appointments seemed inevitable.

In the end, though, the need to address thousands of cases every year, as well as the system’s self-correcting, survival instincts triumphed. Despite the rhetoric to the contrary, compromises by all sides eventually broke the deadlock in the Judicial Selection Committee and led to the appointment of three new Supreme Court justices: Tel Aviv District Court Judge Uzi Fogelman, Haifa District Court Judge Yitzhak Amit and US-born Beersheba District Court Judge Neal Hendel to fill the three vacancies on the 15-judge court. All are experienced judges; none is a zealous ideologue. CJ Beinish is reported to have gotten her first choice, Fogelman, whom she has known since their days together in the State Attorney’s Office. At the same time, she and the rest of Israel’s “court-party” were forced to yield on the principle that only district court judges who had served nine-month trial periods on the Supreme Court could be eligible for permanent appointments. (This practice never applied to non-judges – lawyers or legal academics – appointed to the Court). The right-wing backlash against the Court could not yield a true revolution in the Court’s attitudinal tilts. But critics of the Court’s unrepresentative composition found solace, according to the Jerusalem Post, in the fact that “never before has a majority of the judges been chosen not at the initiative of the president of the Supreme Court and despite her efforts to foil the election”. The Committee also quietly selected 21 new district court judges. In short, a rather anti-climatic, pragmatist ending to a fierce war of words that lasted a few years.

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