Very few public bodies have more influence over our lives than the Judicial Selection Committee. The litigiousness of public life in Israel has made judges main players in the social and public sphere, and courtrooms have become the primary arenas for sorting out public disagreements. The Supreme Court has assumed the authority to torpedo democratic decisions and political compromises.
Due to the interpretive doctrine currently pervading the country's higher courts, laws cease to have meaning in and of themselves. It is the interpreter of the law who gives it its meaning, a meaning often completely unrelated to the intention and desires of the lawmakers who drafted it. Today, the monopoly on legislative interpretation belongs to the court, whose judges are appointed by a nine-member committee which works behind closed doors to perpetuate that same monopoly.
All power corrupts. Absolute power corrupts absolutely. When such immense power is put into the hands of so very few, corruption becomes probable. However, public life is not possible without a governmental entity operated by human beings. In democratic societies, therefore, mechanisms are created to limit and monitor the government, to mitigate the concerns over potential corruption. One of these mechanisms is transparency. Sunlight, according to former U.S. Supreme Court Justice Louis Brandeis, is the best of disinfectant; electric light the most efficient policeman. Even the most corrupt individuals will pause before daring to display open contempt for the public.
The Judicial Selection Committee is the civilian body most shielded from the sunlight. Its hearings are closed and its protocols secret. In a ruling from 2008, then-Justice Esther Hayut said the Judicial Selection Committee was not a "public authority" under the Freedom of Information Law, and therefore was not bound by it. Even if it were bound by the law, said the future Supreme Court president, there were still no grounds to open its hearings to the public due to the sensitive nature of the discussions. Furthermore, said Hayut, it was important to allow the participants to express themselves freely, without fear of their comments becoming public fodder.
The concentration of power in the hands of a small committee that operates behind a thick curtain is an invitation for corruption, nepotism, cronyism and other underhanded dealings. And while these are certainly unfortunate and regrettable aspects of life in the political arena, it is truly sickening when purportedly apolitical players get in on the act.
The makeup of the Judicial Selection Committee gives the judges a built-in advantage – they comprise one-third of the committee; they don't have to deal with a coalition or an opposition and they vote as one. Indeed, from the time the committee was established until recently, the judges aggressively determined all appointments. Via the "you scratch my back and I'll scratch yours" system, uniformity of thought has pervaded the Supreme Court, such that its monopoly over legal interpretation and principles has become almost entirely hegemonic.
Justice Minister Ayelet Shaked wanted to diversify the panel of Supreme Court justices. She had to choose between changing the system and a tactical fight over specific appointments. Changing the system was a strategic matter, and when she chose not to pursue that path, she had to find allies on the Judicial Selection Committee who could help her override the judges' influence. Representatives of the Israel Bar Association were these allies.
The criticism over the well-intentioned alliance between the justice minister and Effi Naveh, head of the Israel Bar Association, misses the main problem. The alliance itself isn't the issue, nor is the corruption. The corruption is just the result. The real problem is the structure of a system that permits and encourages personal corruption on one hand and empowers the opportunistic and corrupt individuals on the other.
To overcome the crisis of corruption and ensure diversity of interpretive thought and principle in the legal system, it is not enough to forge alliances on the existing committee. The system itself has to be changed – this pernicious committee has to be terminated; appointment power must be taken away from the judges; and judges should be appointed by elected officials in an open and transparent process, per the norm in Western democracies.
