David RubinThe writer is former Mayor of Shiloh, Israel and Founder and President of the Shiloh Israel Children’s Fund, established after he and his three-year-old son were wounded in a terrorist shooting attack. He is the author of three books, including his new book, Peace for Peace: Israel in the New Middle East. www.DavidRubinIsrael.com
Likud Minister Dan Meridor has been leading the fierce opposition to several Supreme Court-related bills that have recently been proposed in the Knesset by his Likud colleagues.
These have included a few bills that, according to their proponents, would move Israel's Supreme Court (The High Court) toward a more democratic process of justice, including modifications to the justice selection process.
Once selected to the High Court, these esteemed men and women remain in their positions, health permitting, until retirement. Do we really want to allow them unlimited power?
Among a variety of restrictions, the proposed legislation would mandate Knesset committee approval of each appointment to the court.
Meridor, now backed by Prime Minister Binyamin Netanyahu, has vehemently opposed such bills, claiming that they are “undemocratic” and that they would “set Israel back decades” by interfering with the independence of the Supreme Court. Netanyahu has also expressed concern that the bills would “impair the independence of the courts”.
Would limiting the power of the High Court and increasing Knesset involvement in the justice selection process indeed be a threat to Israel's democracy? Is the independence of the Supreme Court really a sacred value that we need to protect?
In the United States, where a complex representative democracy has evolved over some 235 years and where freedom and liberty are sacred values, the Supreme Court is far from independent. Yes, it is the final adjudicator on highly contentious issues and is highly honored and respected, but its decisions can often be circumvented by legislation. Furthermore, the justice selection process is relatively simple, and yes, democratic, involving all three branches of government.
The system basically works like this:
After research and consultation with his advisors, the sitting President of the United States appoints his candidate.
The candidate submits answers to a comprehensive questionnaire to the Congressional Senate Judiciary Committee. The candidate presents himself to that committee, which questions the candidate about his past rulings and positions, as well as, in some cases, questioning other witnesses who may have relevant information about the candidate that could affect his/her suitability for the Supreme Court position.
The Congress approves or, in a minority of cases, rejects the appointed candidate.
In dictatorships, leaders choose themselves and are “independent”... In the American system, the Supreme Court is in effect chosen by the people through their representatives.
In the course of American history, less than 20% of Supreme Court nominees have been rejected, but due to the fact that both executive and legislative branches of government both play a role in the process, this system provides for the central principle of Checks and Balances, which prevents any branch of government from dominating the others. What can be more democratic than that?
It should be noted that unlike the Israeli justice selection process, the High Court doesn't play a direct role in selecting itself, and this is as it should be. In dictatorships, leaders choose themselves and are “independent”, not in a true representative democracy. In the American system, the Supreme Court is in effect chosen by the people through their representatives.
There is no branch of government that has full “independence”, nor should there be. The two major parties are intermittently in power in both the executive and the legislative branches, and therefore, there is a natural balance in the judicial system and both sides of the aisle are represented to varying degrees, as well as different ethnic groups, sexes, and religious beliefs.
Contrast that with the Israeli Supreme Court, which usually looks like the North Tel Aviv Court of Ashkenazi Secular Liberals, hardly representing the Israeli political, ethnic, and religious spectrum.
Is the American-raised Prime Minister Netanyahu truly enamored of the Israel justice system as it stands today? Israelis are often in awe of everything American, usually without good reason, but it seems clear that, at least in this case, the Americans are on the right track.
Our political leaders should take a second look at their knee-jerk rejection of such a common-sense system of justice.