The Israeli Law Professors’ Forum for Democracy, an ad hoc and voluntary group of experts on Israeli law and specifically Israeli public law, expresses its grave concern over the apparent intention to abolish the independence of the judiciary, to subordinate it to the government and to the partisan political considerations of the executive branch, to curtail the independence of civil-servant ministerial legal counsels to the government and its ministries. and to violate human rights. This position paper examines the claim according to which the Israeli judiciary is not sufficiently diverse and that in order to diversify it, control of the committee for electing judges should be transferred to the executive branch.
· Is it true that the Israeli judiciary in general, and the Supreme Court specifically, do not reflect the diversity of Israeli society? Yes, this statement is (partly) true, but in a different sense than the one suggested suggested by Chair of the Constitution, Law and Justice Committee, and Minister of Justice Levine. While historically the judiciary was relatively homogeneous, there has been significant change in the past decades and the judiciary is currently more diverse than before. There are, indeed, certain groups in Israeli society that are still significantly underrepresented in the judiciary, primarily ultra-Orthodox and Arabs. Other groups, on the other hand, have become overrepresented.
· Will transferring the control over appointment of judges to the government diversify the judiciary and the Supreme Court specifically? No, and the opposite may be true. Transferring control might decrease certain aspects of diversity, while leading to corruption and incompetence.The suggested change aims to transfer control to the government but contains no mechanism or obligation capable of increasing diversity and reflectiveness. This will likely lead to the appointment of judges according to their political allegiance, with professional expertise and diversity becoming secondaryconsiderations, at best. Conversely, Israel’s current system for appointing judges enables taking into consideration the need to increase diversity through the promotion of nominees from underrepresented groups.
· How can diversity in Israeli judiciary be boosted? Firstly, it is important to stress that the judiciary system is diversifying, albeit more slowly and gradually than desirable. In the past decades, and within the existing framework, members of the committee for electing judges, are actively and successfully promoting the appointment of judges from underrepresented groups in Israeli society. Nonetheless, there are additional measures that should be implemented to increase diversity in the Israeli judiciary.
o Various countries in which the procedure for judges’ appointment is professional, apply various measures to increase gender and ethnic diversity among judges. Along the same lines, declaring that diversity and representation is a central consideration in appointing judges could encourage the committee to take action to increase diversity. Such action might include, inter alia, holding conferences aimed at encouraging lawyers from underrepresented groups to apply for judicial office; actively soliciting applications from suitable candidates from underrepresented groups; and possibly altering the selection process to accommodate the needs of different groups. Measures such as these have been successful in promoting diversity in Israel in other contexts.
· The Rothman-Levine proposal will lead to the appointment of ideologically identified judges based on political allegiance, causing polarization of competing elites. In contrast, experience accumulated in the past decades shows that an appointment process that necessitates the broad agreement of the judiciary, the executive, and the Knesset—or, alternatively, the parliamentary coalition and the opposition—can promote demographic and ideological diversity. A consensus-based system provides a good foundation for implementing further, active, measures for promoting diversity in the judiciary, with the aim of ensuring representation of all parts of Israeli society.
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