Since the beginning of 2017, six new justices—out of a total of fifteen—have been appointed to Israel’s Supreme Court. The new appointees, according to Aharon Garber, stand poised to undo, even if gradually, the “judicial revolution” of the retired court president Aharon Barak, under whose auspices the court granted itself tremendous power to overturn laws and interfere in the minutiae of policy, as well as to create a self-perpetuating legal bureaucracy. Garber explains why there is reason to be hopeful:

A look at the resumes of the new Supreme Court justices shows that the cloning of judges identical to Aharon Barak and their complete dominance of [future] appointments [to the judiciary] is over. . . . I do not believe that all the judges will oppose Barak’s reforms or that the court will cease to intervene daily in the affairs of the executive branch. People expecting such a sharp change and counterrevolution will be disappointed. . . .

But there are positive indications that a growing number of justices on the new court will restrain themselves more than has been common in recent years, and that the track for Supreme Court appointments no longer exclusively goes through the chief justice’s office. . . .

A decade ago, a sharp reaction emerged against the judicial revolution, which led to an effort to restore balance to the government. Among other things, the rules governing judicial appointments were changed and the justices’ veto over the selection of [new] candidates to the Supreme Court was ended. . . .

Many rules remain that are worthy of being reconsidered. . . . Many believe [for example] that . . . elected representatives should be given preference in choosing judges to the Supreme Court.

A proposal was recently raised to limit the maximum term to fifteen years, and we should also reexamine how the selection committee operates. Is there a justification for the special course of study that judicial candidates must take? In its present form, the course allows the court’s administration to screen for candidates who do not fit their concealed criteria.

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Appointing the Supreme Court Justices: The First Step on the Road to Restoring Balance

Aharon Garber

This piece was first published on the Hebrew-language website Mida on February 27, 2018, rendered into English by Avi Woolf, and republished here with permission. The original article can be found by clicking on the link at the bottom of this page.

The legal establishment has been undergoing positive changes in recent years, even if very slowly, in the direction of correcting its existing distortions.

A few weeks ago, I participated in a conversation with an experienced European diplomat who began his career as part of his country’s delegation in Israel. The conversation came around to Israel’s political system, and got quickly focused on the unique structure of the Israeli government and the excessive power of the judiciary. The diplomat, who had quite a bit of experience and had served his country in a large number of places, was shocked when he first learned of the power of Israeli judges. “Who appoints them?” he asked. “What is the appointment process?”

The foreign diplomat’s question has, of late, very much occupied the attention of the legal and political establishment in Israel. Last week, two new Supreme Court justices were appointed: Alex Stein and Ofer Grosskopf. They joined Yosef Elron, David Mintz, George Kara, and Yael Willner, all of whom were appointed in the past year.

The irregular situation in which six of the total of the court’s fifteen justices were appointed within a brief period was due to the fact that four justices (Miriam Naor, Elyakim Rubinstein, Salim Joubran, and Uri Shoham) reached retirement age, while two others (Svi Zilbertal and Yoram Danziger) decided on early retirement.

Thus did a particularly intensive year come to an end for the Judicial Selection Committee and the Justice Ministry to which it answers. More broadly, we can say that an era has come to an end. The “Rehavia gang,” as the past few generations of Supreme Court justices were called, has made way for a new generation, which has not known Justice Barak. Among the serving justices, only Chief Justice Hayut served with him on the court.

A look at the resumes of the new Supreme Court justices shows that the cloning of judges identical to Aharon Barak and their complete dominance of [future] appointments [to the judiciary] is over. I do not believe that all the judges will oppose Barak’s reforms or that the court will cease to intervene daily in the affairs of the executive branch. People expecting such a sharp change and counterrevolution will be disappointed

Back on the Right Track

Just last summer, in a series of rulings, the court irregularly expanded its authority and ruled that it can repeal Basic Laws if it wishes. The justices even acted aggressively in the last two rounds of appointment to defeat the Supreme Court candidacy of Professor Gideon Sapir, who challenged the legitimacy of the judicial revolution.

The road to fixing the court is long and requires both tactical and strategic efforts. But there are positive indications that a growing number of justices on the new court will restrain themselves more than has been common in recent years, and that the track for Supreme Court appointments no longer exclusively goes through the chief justice’s office.

True, there have been more conservative justices at other time. Furthermore, the wheels of the revolution did not suddenly go into reverse at full speed, but we can nonetheless say cautiously that we are witnessing a changing trend, a fact which is not to be sneezed at in the face of the power of the justice system. Justice Minister Ayelet Shaked and the negotiations she has conducted had a decisive effect on changing the trend, but the seeds of change were sown a decade ago, when the rules for judicial appointment were changed.

A decade ago, a sharp reaction emerged against the judicial revolution, which led to an effort to restore balance to the government. Among other things, the rules governing judicial appointments were changed and the justices’ veto over the selection of [new] candidates to the Supreme Court was ended.

The Judicial Selection Committee is made up of nine representatives: Two ministers, two Knesset members, three judges, and two representatives of the Israel Bar Association. The “Saar law” which passed a decade ago stated that the appointment of judges to the Supreme Court requires a majority of seven out of nine members of the committee. This means that there is a mutual veto between the judges and the politicians, who cannot appoint judges to the Supreme Court without the agreement of the other, contrary to what was customary until then, when only the judges had veto power.

Professor Daniel Friedman, when serving as justice minister [from 2007 to 2009], also led changes which influenced the shaping of the court. He insisted on the appointment of lawyers from the private sector and stopped the custom of temporary appointments to the Supreme Court. The end of these temporary appointments created pressure on the judges, who preferred in the past to avoid any appointment which they considered bad until conditions improved.

Moreover, the temporary appointment gave enormous pressure on judicial candidates and a “temporary appointees” not to deviate from the accepted judicial position. The change which the court has undergone today is the product of a change of rules which allowed the present course correction, even if it is only, for the time being, a moderate one.

Over time, the changing of the rules is what allowed the diversion of the train to the right track and created the opening conditions for changing the makeup of the court. Even today, it’s important to note that tactical achievements will not cure the system of its ills and will not balance the complex balance of forces between the branches of government so long as more fundamental rules rules aren’t changed.

And there are many rules worthy of being reconsidered. Is the present system of appointments the bets and most balanced given the existing imbalance and asymmetry in the system? Many believe that the Saar law is not enough and that elected representatives should be given primacy in choosing judges to the Supreme Court.

A proposal was recently raised to limit the maximum term to fifteen years, and we should also reexamine how the selection committee operates. Is there a justification for the special course of study that judicial candidates must take? In its present form, the course allows the court’s administration to screen for candidates who do not fit their concealed criteria

There are also other rules which do not deal with the Judicial Selection Committee, but whose effect on judicial activism is great. We can for instance work to limit the ability of the court to intervene in the work of the government by limiting standing and the declaration of certain areas as outside their purview, alongside the redefinition of the authorities of the Supreme Court in Basic Laws.

A Court of Law or a Court of Judges?

Until these rules are changed, it’s still important to understand the significance of the changes the court is undergoing. Contrary to the situation in the U.S., where all the Supreme Court justices sit on every case brought before them, in Israel the justices usually sit in ad-hoc arrangements of three.

Because of doctrines developed in Israel regarding reasonableness and proportionality and the fact that the identity of the justices is not as homogenous as it was in the past, today many legal results are expected to change in light of the specific components of each case. Just recently we saw the influence of the change of judicial complements in rulings regarding religion and state and the questions of the demolition of terrorists’ houses.

We can therefore expect a growing diversity of subjects in which the importance of the complement will increase. The fear of the Supreme Court turning into a “house of judges” rather than a “house of law” will accompany the court’s work in the coming years and harm public trust in the system, in which the justices are meant to be objective observers not agenda-driven advocates.

The self-restraint of the judges may strengthen the system and public trust therein until its stabilization. For years, Aharon Barak has tried to convince the public that Supreme Court rulings reflected not the personal opinion of the judge but objective law.

This axiom was necessary to convince the public to adopt the judicial and constitutional revolutions, which granted the judges the power to decide the most hot-button issues in an Israeli society still full of conflict and fighting for its very existence.

Now that this assumption of objectivity has been undermined, it would seem that the time has come to complete the change in rules and increase the weight of elected representatives in appointing judges. The intense public interest in every round of judicial appointments and the debate regarding each and every candidate shows just how much the public is waiting for this change.

Two extraordinary events demonstrate something important about Israel’s most fervent adversaries. One was a speech given at something called The People’s Forum (funded generously by Goldman Sachs), which stated, “When the state of Israel is finally destroyed and erased from history, that will be the single most important blow we can give to destroying capitalism and imperialism.”

The suggestion that this tiny state is the linchpin of a global, centuries-old phenomenon like capitalism goes well beyond anything resembling rational criticism. Even if Israel were guilty of genocide, apartheid, and oppression—which of course it is not—it would not follow that its destruction would help end capitalism or imperialism.

The other was an anti-Israel protest that took place in front of New York City’s Memorial Sloan Kettering Cancer Center, deemed “complicit” in Israel’s evils. At organizers’ urging, participants shouted their slogans at kids in the cancer ward, who were watching from the windows. Given Hamas’s indifference toward the lives of Gazan children, such callousness toward non-Palestinian children from Hamas’s Western allies shouldn’t be surprising. The protest—like the abovementioned speech—deliberately conveyed the message that Israel is the ultimate evil and its destruction the ultimate good, cancer patients be damned.

The fact that Israel’s adversaries are almost comically perverse does not mean that they can be dismissed. If its allies fail to understand the obsessive and irrational hatred that it faces, they cannot effectively help it defend itself.