SNAFU in the MQG

The Movement for Quality Government, or MQG, does some very laudable work. They lobby the courts and other government organs to fight against abuses of power and injustices. They've acted in cases where MKs and ministers have misused funds for personal gain. However, a recent action of theirs is very, very misguided and brings into question their commitment to "quality government."

On January 3, the MQG issued a press release announcing its request to the Prime Minister to remove Prof. Daniel Friedmann from his post as Justice Minister. This was a reaction to Friedmann's recent initiative to change the manner in which high court justices are selected.

The Judicial Selection Committee consists of nine members: 3 sitting justices of the supreme court (including the president of the court), 2 cabinet ministers (including the Justice Minister), 2 Mks (one traditionally being an opposition MK), and 2 members of the Israel Bar Association. Five out of these nine are influenced professionally by the high court. Thus, in practical terms, the sitting President of the high court has a huge degree of influence in deciding who is selected to the high court bench. It's a form of self-selection; the court ends up appointing its own peers and successors with virtually no oversight. Many have pointed out that in recent years appointees have shared very similar political outlooks and, as a group, the justices may be adjudicating some cases on the basis of a political bias.

Prof. Friedmann seeks to minimize this bias by reducing the influence of sitting judges regarding who will succeed them. Under his proposal, the selection committee would be the same as before except for two changes: there would be one less high court justice and three additional committee members. The additional committee members would be a former judge, an academician appointed by the PM, and an academician appointed by the Council on Higher Learning. Friedmann also proposed search committees to gather information on prospective high court candidates. Essentially, Friedmann wants the process of selecting high court justices to be more transparent and to enable wider public participation.

MQG's response? “Prof. Friedmann's new proposal to change the manner of choosing judges is another instance of trying to harm the independence and the stature of the high court.” Well, independence to judge is not the same as omnipotence to rule. Once appointed, high court justices are not subjected to performance reviews. They may be forcibly removed if they are convicted of crimes or treason or if they become incapacitated; otherwise, they are guaranteed the post until the age of 70. One of the few ways of curtailing the high court from abusing its power is by denying its members from forming an exclusive, self-selecting club.

Is Prof. Friedmann harming the “stature” of the high court? Many in Israel feel that the court's stature has suffered from a perceived political bias and that the court has used its judicial muscle to “legislate from the bench.” Two major respected figures in American jurisprudence, Justice Robert Bork and Justice Richard Posner, have commented that the “activist” nature of Israel's high court actually has harmed its prestige. The Movement for Quality Government seems to be confusing judicial brawn for judicial brain; brute power to self-select and to commandeer authority beyond its judicial mandate does not engender respect. Restraint from activism and a respect for government "of the people" engenders democratic respect.

The MQG's statement bemoans that, under Friedmann's proposal, “the government will have a near majority presence on the selection committee, creating a situation of politicization in the choice of the judges.” With the stakes involved, there has never been a way to make the process apolitical. Judges are not immune to political bias. Under Aharon Barak, the high court became a central actor in the political arena. Politically activist in nature, it increasingly exercised a self-acquired judicial review of legislation and ventured beyond its domestic judicial mandate, even into issues of cross-border defense and foreign policy.

Friedmann's approach has not been perfect. His call to limit the scope of the court's mandate to internal judicial matters is reasonable; however, his proposal to exclude plea bargains from high court review is dangerously inappropriate. As Yitzhak Klein of the Israel Policy Center indicated, it is wrong to give any appointed official the right to make decisions about citizens' liberties without judicial checks and balances. While he does not go far enough in preventing self-selection on the high court, Friedmann's proposal on this issue is a step in the right direction. Shelanu's take is that sitting justices should have no authoritative standing in the selection of their brethren to the bench.

Regarding the judicial selection committee, the Movement for Quality Government should reacquaint itself with its self-proclaimed goal. Enhancing the quality of government is best served with mechanisms that competitively select for excellence on the one hand and check the abuse of power on the other. The judiciary is a government branch and requires the oversight of checks and balances every bit as much as the legislative and executive branches. For high court judges to have the power to select their own peers and successors, the pinnacle of the powerful judicial branch, without effective oversight, is clearly not "government of the people." It assumes that supreme court justices themselves are apolitical and immune to political influences; this is a dangerously naive assumption. The corrupting influence of absolute power applies to high court justices as well. Ignoring this imperils democratic values because it invites abuses of power; a tyranny of the judiciary tyranny nonetheless. The Movement for Quality Government should consider these words of Thomas Jefferson, written in the twilight of a life filled with brilliant achievements in the cause of democracy, including his authorship of the Declaration of Independence.

"At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life, if secured against all liability to account."
Thomas Jefferson, letter to Monsieur A. Coray, Oct 31, 1823

If we make it difficult to remove high court justices, we must be extremely careful whom we empower to decide on their selection. The judicial selection process must become more transparent and better checked.