One of the most significant legacies left by the outgoing Minister of Justice is the declaration of a procedure under which the Supreme Court justice selection process would include a public hearing for candidates. The problem is that, except securing the procedure in general, it has not yet been filled with substance. What objectives does the public hearing intend to serve? What are the dangers inherent in this step? How is it possible to guarantee that the hearing serves the selection process’s purpose and does not make it populistic? Dr. Bell Yosef and Guy Elzam answer these questions and clarify that, precisely due to the importance of public trust in the judiciary, it is important to maintain the process’ professional, objective nature.
Dr. Bell Yosef · December 15, 2022
What Exactly Are We Talking About?
A well-known practice in the Judicial Selection Committee’s work is to hold a hearing for Supreme Court candidates, before Committee members, within the selection process. In recent years, proposals have been raised from time to time, according to which the hearing process would be conducted in a public format, due to the immense public and political interest in the selection process. Last April, the Committee agreed to apply this rule. The initiative came from outgoing Minister of Justice Gideon Saar, and was implemented according to an agreement between him and Supreme Court President, Justice Esther Hayut. The step’s objective stems from two intertwined factors: the desire to increase the transparency and publicness of the judicial appointment process, and the aspiration to increase public trust in the Supreme Court and its justices.
Like any change that would impact the Supreme Court justice selection process, this is a step that could have far-reaching implications. Supreme Court justices fulfill a significant role in the fabric of power in Israel. Firstly, the Supreme Court serves as the final court of appeals in Israel’s judicial system, and its decisions are binding on all other courts. Secondly, and no less importantly, the Court sits as the High Court of Justice, with the authority to grant relief in the interests of justice against government authorities. This relates primarily to matters that have societal implications and a clear public aspect, such as declaring laws unconstitutional, judicial review of government decisions, and civil rights protection. These are matters that usually attract public attention, alongside political reverberations.
According to the procedure approved, the hearings are expected to be held starting with the next round of Supreme Court nominations in 2023. Yet, it is important to emphasize that this is a general rule, which does not yet provide an answer about how these hearings will look and what will occur within them.
Wait a Minute, Let’s Make Some Sense of Things. How are Supreme Court Justices Currently Selected?
Currently, 15 justices serve on the Supreme Court, including a President and Deputy President. Twelve of the Supreme Court justices served as district court judges before their appointment, two justices were appointed following academic positions, and one justice was appointed from the private sector.
Supreme Court justices are appointed by the President of the State following selection for the position by the Judicial Selection Committee. The distribution of powers created is: President of the State as formal appointing entity, and Judicial Selection Committee as the substantive selection and appointment entity.
The Judicial Selection Committee is comprised of a mix of political and professional representation: two government ministers (including the Minister of Justice), two members of Knesset (traditionally one from the government coalition and one from the opposition), three Supreme Court justices (including the Supreme Court President), and two representatives of the Israel Bar Association. This mix aims to generate a balance that on the one hand allows a clear representative political voice, together with a professional voice on the other hand. This mix is particularly important given that the Supreme Court not only examines petitions against government authorities, but also serves as a professional court of appeal, in which the vast majority of its work concerns legal questions in the civil and criminal areas.
A majority of seven out of nine Committee members is required to select a Supreme Court justice. This majority is intended to guarantee that justices are appointed with broad political and professional consensus. From a formal standpoint, each Committee member is required to vote according to their personal stance, without bias. In practice, it is well known that voting is usually carried out in blocs according to the representatives’ institutional affiliation, a factor which accords Supreme Court justices, providing they act collectively, veto power to block candidates they consider unworthy.
The considerations these Committee members must weigh are enumerated in Section 11A of the Judgment Rules (Work Procedures of the Judicial Selection Committee), 5744–1984. Counted among these are: knowledge and skills in the legal field, legal analytical ability on various matters, efficiency and execution ability, judicial temperament, integrity, moral compass, ability to withstand pressure, public image, and motivation. In practice, the nature of selection cannot be separated from political influence. As stated, this influence stems from the fact that the mix is balanced, simultaneously reflecting presentability and professionalism.
What Is the Public Hearing’s Purpose?
According to the figure behind the initiative, former Minister of Justice Gideon Saar, the main objective of public hearings is to strengthen public trust in the judiciary by increasing the transparency of the judicial appointment process. As mentioned, in its decisions the Supreme Court determines public policy, and does not just engage in the technical implementation of legal rules. Since Supreme Court justices substantially influence public policy in their decisions, the candidates should be presented to the public, which should be involved in the selection process in a manner that is transparent and public. A public hearing would allow the public to form a direct impression of the candidates and to evaluate the considerations the Judicial Selection Committee weighs within the process. It is worth mentioning that the centrality of this objective, to increase public trust, is what led the (now retired) Supreme Court President, Justice Esther Hayut, to support the initiative.
Alongside the above, additional important objectives which the public hearing process might achieve, can be suggested. Thus, one approach places emphasis on promoting individual and professional diversity among Supreme Court justices, in a manner that would guarantee suitable representation of Israel’s social mosaic, while maintaining a professional yardstick, to guarantee the most suitable candidates are selected for the position. Various aspects of diversity are: the candidate’s personal background, gender, view of the judge’s role, legal philosophy, and professional experience.
An additional objective that public hearings are intended to realize is maintaining professional and objective proceedings, which are not subject to external interests. A proper formulation of the public hearing process could lead to selection of the most suitable and professional justices, and neutralize marginal influences that could impair the professional and neutral character of the position, along with excessive politicization of the Supreme Court.
What Are the Disadvantages of Holding Public Hearings?
Naturally, public hearings raise various difficulties. If until now Supreme Court candidates were interviewed by the Committee behind closed doors, now they would be positioned at center stage and subjected to broad public scrutiny which is not always pertinent. Experience in the United States teaches that in certain cases the process can become a “media circus” with cynical exploitation of the candidate by politicians who want to humiliate the candidate due to ideological-moral disagreement, or use the hearing to draw attention to their own political positions. In addition, there is concern that a public hearing process could expose the public to positions that are irrelevant to examining the candidate’s suitability, such as political or party preferences. Similarly, questions about judicial world view could spill over into a discussion of cases that are pending before the court, as well as about political matters on the agenda. Finally, the process could violate the candidates’ privacy and dignity, especially judges currently serving in district courts who are not selected for the position in the end.
What Are the Guiding Principles for Molding Public Hearings?
Global experience instructs that it is possible to enjoy the fruits of hearings while minimizing their disadvantages through precise planning of the hearing process’ boundaries. A main point of emphasis, in our view, is the issue of questions about political or party views or topics that are pending in courts in Israel. In certain respects, marking off the “boundaries” of public hearings is even called for under law, as an obligation according to the ethics rules justices are subject to.
Firstly, Section 77(a) of the Courts Law stipulates that judges should recuse themselves if there are “circumstances that could establish real concern of bias within holding the trial”, and the caselaw has concluded that, for these purposes, even a prejudice that could impact the degree of the judge’s objectivity within the proceedings, is relevant. Therefore, if the hearing proceedings were to include questions that clearly exposed the candidate’s positions with respect to a concrete matter, they would not appear to be able to sit on a future judicial panel deliberating the matter, and the long-term implication of this would be court paralysis. Moreover, this Section was intended to reinforce public trust in the judiciary, and for this reason as well, questions about specific or political matters should be avoided within public hearings.
Secondly, judges are subject to binding ethics rules which are intended to guide their conduct. In the present context, the rule against expressing an opinion in public on a topic that is the subject of public debate, and the rule against bias, are particularly relevant. Although the ethics rules do not explicitly apply to judicial candidates, the rationales at their foundation are certainly relevant to them as well.
Furthermore, the importance of five guiding principles for holding public hearings should be underlined: publicness and transparency, professionalism, objectivity, equality, and due process. The principle of publicness and transparency is intended to guarantee that the hearing proceedings are molded in a manner that would increase public trust in the process, in the judiciary and in the Judicial Selection Committee and its considerations. The principle of professionalism is intended to ascertain that the criteria that guide the Committee lead, at the end of the day, to the appointment of the candidates who are the most suitable for the position from a professional standpoint. This is fitting for the lion’s share of work by Supreme Court justices, who hear criminal and civil cases most of the time, such that a high level of legal knowledge and ability constitute necessary conditions for the effective execution of the judicial role. This principle also rests on the need to prevent conflict of interests and future bias, as well as the need to increase public trust in the judiciary and judges. The principle of objectivity is intended to guarantee that the selection process rests on objective foundations and that political-ideological considerations alone do not guide the Committee in the selection of candidates. The principle of equality is intended to make sure that all candidates receive identical treatment by the Committee. This principle rests on the need to prevent a public conception that the process was “fixed” in favor of a certain candidate, and it is necessary in order to protect the dignity of all participants in the process. Finally, the principle of due process is intended to guarantee that the selection process is carried out according to the principles of public law and is formulated within a clear, well-defined legal framework. In other words, the judicial selection process’ “rules of the game” must be maintained, and it must be ascertained that the public hearing is held according to a uniform, fixed format.
How Should the Public Hearings Be Held?
We propose to expand the five principles we just mentioned into concrete proposals, to enable maximization of the advantages arising from a public hearing process and minimizing the disadvantages.
According to the principle of publicness and transparency, we believe the public hearing should be broadcast live on a government site so the public can form a direct impression of the candidates. Recordings of the hearing should also be saved and made available for later viewing, both on a government site and on various digital platforms. It would be desirable to allow candidates to introduce themselves to the wider audience during the hearing and allow the public to ask them questions through a public involvement portal. In addition, the Committee should publish in advance the criteria based on which the candidates are measured, as a mechanism to increase process transparency.
According to the principle of professionalism, the candidates should be asked questions that aim to evaluate their professional background, expertise in various branches of law, and judicial world view. What we mean by judicial world view is the rules and principles that guide the judge’s work and how they reach decisions on cases. Thus, for example, the candidate might be asked about their position on public law matters such as preliminary thresholds, judicial review of government acts, the scope of basic laws, and the jurisprudence that directs their professional actions. In this context, general questions might also be asked about the justice's work, such as the interpretative approach that guides their work, the sources they tend to rely upon, overturning a precedent, granting leave to appeal in a “third round”, and the like. It must be emphasized that at this stage, questions about pending cases or cases that are likely to be brought before the courts should be avoided, as should questions with a clear political aspect. In addition, candidates should be able to refrain from answering unprofessional questions, without this being held against them.
According to the principle of objectivity, it is recommended to delimit the content of questions raised before the candidate, so that questions seeking to figure out their political or partisan stances are not asked, instead encouraging questions that seek to evaluate their judicial world view and their position on the court as an institution. In addition, it is proposed to phrase the questions concisely and pertinently, so discussions will be focused on the candidates and not the Committee members. Accordingly, the hearing’s length should be delimited to a set time period, allowing a short and to the point hearing (our recommendation – about an hour and a half). It is also recommended to hold an additional hearing before Committee members behind closed doors, following the public hearing, to allow candidates to clarify all the matters that remain open following it. Like the principle of publicness and transparency, a requirement for the Committee to clarify in advance the criteria it will examine to evaluate the candidates can also be derived from the principle of objectivity. Finally, it is recommended to prescribe uniform procedural rules for the hearing, to be held in the following manner: introduction of the candidate by the Minister of Justice, the candidate should introduce themselves briefly, first round of questions in which each Committee member may ask the candidate questions for five minutes (according to the following order: ministers, Members of Knesset, bar association representatives and Supreme Court justices); a shortened second round of questions if needed, the candidate’s response to questions addressed to them by the public, and a conclusion by the candidate to add things not yet stated within the hearing.
According to the principle of equality, all candidates should be treated identically, they should be evaluated according to the same criteria, and uniform procedural rules should be applied in all hearings. Additionally, it should be guaranteed that the candidate’s current occupational status does not influence the process and therefore there should be no distinction between candidates who serve as judges within the system and candidates from outside the system. Additionally, the hearings should be held immediately following one another to maintain equality in the process. Finally, no decision should be made to halt or alter the hearings during a round of hearings to fill a particular position, until after a public hearing has been held for all candidates.
According to the principle of due process, the hearing proceedings, and the management thereof, should be regulated by clear written rules. With respect to enforcement of the procedural rules prescribed, it is recommended to stipulate that the Director of the Courts should be responsible for enforcing the rules set forth by the Committee, and should oversee conduct of the hearing according to the format determined. In a broader context, it should be stipulated that a decision to end or change the public hearing procedure should be adopted in an orderly manner, by a majority vote of Committee members. Additionally, it is recommended to act separately to regulate both the influence of Committee members, as well as the matter of advance meetings between candidates and Committee members.
What Can the Comparative Experience from Around the World Teach Us?
A substantial part of common law states with structures and central traditions similar to Israel do not hold public hearing proceedings (particularly the UK, India, Australia, and New Zealand), and therefore they cannot serve as inspiration. However, there are three states that hold public hearings from which we can learn effectively: the United States, Canada, and South Africa. The main finding arising from analysis of these states demonstrates that the manner in which public hearings are held in the various states derives to a great extent from the degree of political involvement in the appointment process. Thus, for example, in the United States, where Supreme Court justices are appointed according to political and party affiliation, the hearings have a distinct political character. The appointing figure is the President, confirmed by the Senate, and the Federal Judiciary has no influence on the appointment. Accordingly, the hearing is held before a Senate Committee and the candidates are asked questions with ideological tones which are not limited purely to their legal world view. Not surprisingly, many times the hearing’s focus is none other than the senators themselves, who exploit the stage for political and personal purposes, casting doubt on the candidate’s suitability for the position.
Unlike the United States, the appointment process for the Constitutional Court of South Africa rests on professional foundations. The formal appointing figure is the President of the state, but it is a designated committee that recommends the appointment to the President substantively. Although this committee, called the “Judicial Service Commission”, is comprised of a political majority, it constitutes a mix of public representatives, judges, senior attorneys, and legal scholars. And indeed, the public hearings for candidates for the Constitutional Court of South Africa also have a predominantly professional tone, although not exclusively. Analysis of the public hearings held in April 2022 indicates that the Commission treated the candidates politely and respectfully, asked them pertinent questions only, and focused on the professional aspects of the judiciary, while emphasizing the importance of representing and reflecting South African society in the Constitutional Court. In this context, the Chief Justice’s willingness to intervene in hearings in certain cases, to protect the candidate’s dignity, stands out in particular.
A middle-ground approach to judicial appointment can be found in the Canadian system. The judicial selection process for the Supreme Court of Canada contains both political and professional components. The figure who appoints the justices formally is the Governor in Council, but in practice the appointment decision is made by the Prime Minister, who consults an Advisory Board comprised of a retired judge, three attorneys, a legal scholar, and three additional members appointed by the Minister of Justice. The selection process includes a preliminary hearing held before members of the Board, followed by a public hearing held before a political committee comprised of public representatives from both chambers of the state’s legislature. This means that the Canadian system separates between the figure that appoints/recommends and the figure that holds the public hearing in practice. Accordingly, the public hearing has clear political characteristics, even if it is administered by a neutral and external figure, usually a legal scholar or retired judge. The purpose of the neutral administration is to outline the hearing’s boundaries, while maintaining the process’ professional characteristics. Analysis of the hearing held in Canada in June 2021 demonstrates this well.
The conclusion that arises from an analysis of the law in practice in various states is that the hearing’s character should be adapted to the judicial selection process and the characteristics of the state’s selection process. Since the Israeli system seeks to focus on professional considerations, alongside considerations of diversity and societal representation, the conclusion that follows is that the public hearing process in Israel should be formulated accordingly.
The Supreme Court fulfills a central role in molding public policy in Israel, and therefore increasing the publicness of judicial appointment proceedings is an important mission. The initiative to hold public hearings for judicial candidates is an initiative capable of serving important objectives such as reinforcing public trust in the Supreme Court, increasing transparency of the selection process, maintaining the process’ professional and political characteristics, and guaranteeing suitable societal and professional representation in the court’s composition. However, experience teaches that an uninformed and imprecise molding of the public hearing process could actually interfere with these important objectives, weaken public trust in the judiciary, and wound the candidates’ dignity. In the position paper we published at Tachlith – Institute for Israeli Public Policy, we emphasized that while there is no one correct and specific system for holding public hearings, slipping into complete politicization of the selection process within these hearings should be avoided. Accordingly, we have proposed a procedural framework to hold the public hearings, based on theoretical and comparative foundations, in a manner that would best realize the process’ objectives.
We believe that adoption and implementation of the study’s conclusions could bolster public trust in the judiciary and guarantee that appropriate weight be granted to the public, professional, and political components of the selection process, while maintaining the candidates’ dignity and privacy and working towards creating diversity in the court’s composition.
Dr. Bell Yosef
Senior Researcher in the research program “Democracy’s Rules of the Games”, researcher and lecturer in the field of public law.
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.