Tuesday, May 18, 2010

U.S. Judicial Appointments: An Israeli Columnist's Take

Ze'ev Segal, Ha'aretz's legal affairs expert, wrote a column I whole heartedly agree with. Here it is in Hebrew, and here it is in English (see below as well).

Appointing a friend

By Ze'ev Segal, Ha'aretz, May 17, 2010

Last Monday, U.S. President Barack Obama appeared before the American people and announced that he was nominating his friend, Solicitor General Elena Kagan, as a supreme court justice. The caveat against "appointing your friends," which applies in Israel regarding the appointment of judges, seems foreign to American ears.

Obama met Kagan in the early 1990s when the two taught constitutional law at the University of Chicago Law School. He appointed her solicitor general about a year ago. If the Senate confirms her nomination, Kagan, who is 50 years old and Jewish, will join what Richard Nixon called the most powerful institution in America. It was a court ruling in the Watergate case that led to his resignation. Kagan studied law at Harvard Law School, where Obama also got a degree. The two, both outstanding students, were editors at different times of the prestigious Harvard Law Review. Editors of the journal have gone on to greatness in American jurisprudence and politics.

Before her appointment as solicitor general, Kagan was for six years dean of Harvard Law School, the first woman in the position. The American press is currently full of profiles of Kagan, which have mentioned her popularity among students at Harvard and how she argued with the rabbi at her bat mitzvah about the nature of the ceremony. (They came to an understanding.)

When Obama presented her to the nation, he spoke about her deep understanding of the law and about how she viewed the law not as an "intellectual exercise" but as a highly influential force in people's lives. In her remarks, Kagan spoke about how the law "protects our most fundamental rights and freedoms" and is "the foundation of our democracy." During the confirmation process in the Senate, her stance on ideological issues will become public, including her views on the right to an abortion, the legitimate means for fighting terrorism, the limits on freedom of expression and freedom of information, and the president's authority vis-a-vis other branches of government.

Kagan has not spoken much on issues the public is divided over, and her academic writings are few. She is known for not having a firm agenda and for being open to a range of views. At the same time, Obama expects that she will tip the balance in favor of democratic values. His stance in advocating limits on corporate contributions to political parties and candidates was rejected by the Supreme Court in January by a vote of five to four. A majority of justices rejected the position taken by the solicitor general, Elena Kagan.

Outsiders observing the way federal judges are appointed in the United States can't help but be both impressed and put off. The process is absolutely political. Translated into the Israeli context, it would involve nomination by the prime minister and confirmation by a majority in the Knesset - this seems inappropriate without any question. In Israel, the suggestion to increase politicians' influence in selecting judges was rejected by a broad consensus. The current system for selecting judges by a committee of two government ministers, two MKs, three supreme court justices and two members of the Israel Bar Association seems attractive compared to the United States.

On the other hand, the American system provides appropriate transparency that reaches a climax with the public questioning of candidates for the bench by the Senate Judiciary Committee. At the hearings, candidates are asked about their views on matters of principle such as judicial activism, balancing fundamental rights and limitations on oversight of the executive branch.

In Israel, the process is hidden from public view. Taking into consideration the fact that the Supreme Court decides controversial questions of principle, it is appropriate at least that members of the selection committee have a deep knowledge of the candidates' stance on fundamental ideological issues, as in the United States. These include the appropriate scope of judicial review over the constitutionality of laws, and judicial discretion in sentencing. One might also more seriously consider a public process before justices are selected for the Israeli Supreme Court, such as providing detailed background about the candidates' lives.

The promise that the Supreme Court will reflect the makeup of Israeli society is essential to strengthen public trust in the court, which despite an erosion of its status, is still at the top of the charts when it comes to faith in government institutions. This must be preserved.

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