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Menachem Begin’s famous remark, “There are judges in Jerusalem,” has come to symbolize Israel’s commitment to remaining a state of law. That pledge can only be fulfilled by ensuring an independent judiciary, a legal system which is at once above and reflective of the people. That system is today endangered.
The Supreme Court has come to be viewed by large segments of Israeli society as alien and even hostile. A widening gap has opened between the bench and the Knesset, with legislators proposing laws to bypass or override the court’s rulings. Such laws will vitiate judicial review, one of the mainstays of any democracy.
Much of the blame for this perilous situation lies in the manner with which Supreme Court judges are picked. Unlike any country in the world, with the exceptions of India and Thailand, Israel’s highest adjudicators are selected with virtually no input from the people. In the United States, voters have not only one but two opportunities to influence their Supreme Court’s composition (voting for president and the Senate), which is consequently always a major electoral issue. But in Israel it is never mentioned and for the simple reason that Israelis have virtually no say.
Israeli judges are chosen through a complex process involving two government ministers, representatives of the lawyer’s’ guild, and—most astonishingly—sitting Supreme Court justices themselves. This gives a majority vote to the jurists over elected officials. Quite naturally, the judges and lawyers choose those successors closest to their own worldviews. The result is a Supreme Court which, legally speaking, remains in same place it was twenty or even thirty years ago. Israeli public opinion, meanwhile, has shifted—in recent decades, significantly rightward—as reflected in the Knesset. Conflicts between the two institutions, rare a generation ago, have become commonplace. Their legislation repeatedly overturned, parliamentarians began asking the judges “who elected you?” and asserting that the MKs, alone, represented the people’s will.
Further deepening the gulf was the activist approach adopted by the Court since the 1990s and the presidency of Aaron Barak. Under the banner of “everything is judicable,” the Court has ruled on issues as diverse as the placement of the Security Barrier and whether the government can lawfully retain the remains of slain terrorists (it can’t). Barak also gave precedence to Israel’s character as a democratic state over its status as a Jewish state. The Katzir case of 2000, in which the judges found in favor of an Arab family prohibited from buying a house on a Zionist-funded moshav, remains a landmark. This accelerated the Court’s alienation from an increasingly nationalistic and religiously observant Knesset.
Clearly, the Israel of 2048 must pull Israel back from the legal brink. This can only be achieved by totally reforming the selection process for judges. The American example may be impractical for a society as diverse and potentially fractured as Israel’s—the Court might never have an Arab or a Haredi judge. On the other hand, the European model in which fifty percent of the judges are chosen by parliament, closer reflects Israel’s needs. The goal is to allow Knesset to choose eight of the Court’s fifteen justices, giving them a decisive voice, while allowing representatives of the legal establishment to select the remaining seven. It is the only way to preserve judicial review and to uphold the Court’s role of protecting both the rights of the minorities as well as the majority.
Finally, the Court’s purview must be circumscribed. Not everything is judicable and especially not vital national security issues which reside almost entirely with the government and the defense establishment. To save itself, the Court will have to limit itself to areas of a purely legal nature. There must be judges in the Jerusalem of 2048, but they must be part of—not removed from—the people, and know what they can and cannot judge.
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