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  • Dr. Elad Gil

Comparative Study of Elected Official Involvement in Supreme Court Justice Selection

Guy Elzam, Yael Sirkis and Dr. Elad Gil | Sivan 5783 | June 2023 

 

Abstract


How Should Judges Be Selected in Israel? 

 

The debate surrounding this sensitive topic reached the heart of public discord in Israel during the first half of 2023. In the background was a proposed amendment initiated by the Coalition Government to Basic Law: The Judiciary, aiming to alter the composition of the Judicial Selection Committee that has been active in Israel since 1953, and to replace it with a Committee controlled by a majority of elected officials from the coalition. The crux of the debate between the reform’s supporters and opponents concerns comparative law, or the question: What is the practice in other democratic states? Supporters of the reform cite studies that argue, with some justification, that in most of the world the practice is for elected officials to play a central role in selecting judges for the highest court. Opponents of the overhaul respond by citing studies that assert, also with some justification, that in most of the democratic world there is an ethos of selection based on professional standards - except in Poland, known as a state whose democracy is in decline – and the Coalition Government does not control judicial appointments. On both sides, along with the correct claims, there is often a tendency to avoid confronting data that instructs about the complexity and limitations of the comparison.

 

This paper offers an in-depth comparative study, aiming to unravel the question of how states that are relevant for comparison to Israel (according to defined parameters) balance between the need to allow democratic influence by elected officials on the selection process, and maintaining the Supreme Court’s professionalism and independence. Our goal is to understand how these states resolve the tension between placing selection authority in the hands of political figures and the importance of upholding selection considerations based on legal professionalism and expertise, and restraining the Government’s ability to transform the Court into a pawn in its hands – a result that endangers the democratic regime’s continued existence.

 

The findings teach that in most states there are arrangements to prevent politicization of the selection process and to uphold professional selection. These arrangements are achieved through a combination of institutional mechanisms, legal rules, and customary practices. However, the level of these arrangements’ immunity to political influence is not uniform: In some states political influence is limited by strong professional restraints that are prescribed by law, or which have taken root in the political culture, while in a minority of the states there is stronger political influence. The main conclusion arising from the overview is that in most states, the judicial selection process is led by elected officials but does not have a political character, rather a professional one.

 

The paper addresses an additional question of value for comparative study: How are the professionals on the selection/advisory committees appointed? Figures demonstrate the presence of a wide range of professionals who are involved in the selection processes, appointed by different methods, both by other professionals, elected officials, and combined mechanisms.


Guy Elzam is a research assistant in the Tachlith Institute’s program “Democracy’s Rules of the Games”, and a law student at the Hebrew University of Jerusalem (class of 2023). 

                         

Yael Sirkis is a research assistant in the Tachlith Institute’s program “Democracy’s Rules of the Games”, and a law student at Reichman University (class of 2023). 

 

Dr. Elad Gil is a senior fellow and Head of Research at Tachlith – The Institute for Israeli Policy, an adjunct lecturer at Reichman University’s Radzyner Law School, and a research fellow in the Faculty of Law and the Federmann Cyber Security Center at the Hebrew University of Jerusalem.

 

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