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Democracy needs to come to the court

The passing of Justice Antonin Scalia has put the political world in the US into discord.
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April 21, 2016

The passing of Justice Antonin Scalia has put the political world in the US into  discord. The President has announced his nominee Judge Merrick Garland to the Supreme Court. Republicans are vowing to block any nomination before the election. This conflict highlights the vital consideration of voters in Presidential elections, some basing their vote for President on the issue of court appointments. In the US Presidents nominate judges and the Senate confirms the appointment. Those appointments can have a profound long term impact on American society.

In Israel it’s not that way. Democracy  is not part of the  procedure for selecting justices for the Supreme Court. The Prime Minister or President does nominate judges. The Knesset  does not ratify them. There are no public hearings for justices, or public debates.

In Israel a small  committee of nine  make the choices behind closed doors.  The Chief Justice and two other members of the Supreme Court, the Justice minister, a cabinet minister, two Knesset members and two representatives of the bar association.  The meetings are done in the secret, Israel  law mandates that minutes of the selection committee not be made public.  A super-majority of this small committee is needed to appoint a judge. Judges presently serving on the court have a major influence, making it to a large degree a process of self-selection.

In the US it’s an open process, Democratic Presidents tend to nominate judges more the left and the Republican Presidents the right. The senate publically debates the appointments and ratifies them. The process has created a judiciary that is representative of varied legal philosophies. The judges debate between themselves, many times finding compromise. In Israel the court does not reflect diversity. The Israeli Supreme Court is to a large degree self selected, politically its clearly tilted to the left, activist, claiming for itself powers never given by legislation. It attempts to impose its will on the diverse society. In particular when it comes to issue of religion and personal status. The Court has a tendency to reflect a judicial philosophy antagonistic to Jewish tradition. 

A case in point was the Courts activist stance in striking down the Tal Law designed to slowly integrate Yeshiva students into Israeli society (personally I think this integration is vital to Israel’s future).  The Courts dramatic intervention created a political crisis. It set back the goal of Haredi integration significantly, empowering those voices of insularity who said “look the secular are out to get us.' The community circled the wagons and stepped back from greater engagement in Israeli society.   

In a remarkable moment of candor, one of the leading Supreme Court judges who was instrumental in striking down the Tal Law told me “we saw it was not working so we had to make the decision.” The ruling that came in waning days of the Benisch court. Clearly a purely political decision masked in legalese.  The liberal judges used their position of power to advance their personal political agendas. This decision was clearly the province of the legislative process. If the judges on the Supreme Court felt the need to engineer social change they should of doffed their judicial robes, and run for office.

The time has come for Israeli democracy to take a cue from the United States. A more democratic process to appoint judges is needed to insure continued trust in the court. The present system of judicial cronyism and self-selection has led to serious imbalance in the Israel legal system. It undermines the status of the Court,  many citizens lacking confidence in its fairness. Let judges from the left and right, secular and religious debate the great issues of the day behind closed doors, seeking compromise and consensus.  A Haredi judge on the court might have quietly suggested to those activist judges focused on social engineering for Yeshiva students that their ideas would create the opposite effect.  A more balanced court would also bring about greater respect from the all parts of the Israel spectrum.

The political left have historically opposed any effort at judicial reform in Israel claiming it a threat to democracy. This is smoke screen for their agenda for retaining their hold on the Court. They know they do not have the votes in the Knesset to advance their social agenda, by directing the selection process of judges, they continue to control Israeli society by judicial fiat.

One the striking friendships in the US Supreme court is the well-known comradery that existed between Justice Antonin Scalia, the conservative constitutionalist, and Justice Ruth Bader Ginsburg, the liberal jurist. They socialized together, and even jointly attended the Opera. One can imagine that beyond the social engagement was an intellectual one, where great legal issues were debated, and compromise reached.

American democracy can teach an important lesson to Israel.  A Supreme Court has a immense power, to have the support of the citizenry it must be balanced,  and reflect diverse legal philosophies. Behind closed doors, judges of varied viewpoints should  debate and dialogue and find the best path  to uphold the law. The time has come for Israel to learn from the US, only a court appointed via a democratic process can truly reflect the variety of legal philosophies and be respected by the public.

Rabbi David Eliezrie is President of the Rabbinical Council of Orange County. His email is rabbi@ocjewish.com

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