Dateline Jerusalem — As a former attorney in California, I am interested in the judicial process, both in the States and Israel.  Both countries are democracies, both founded on vesting the legislative, executive, and judicial powers of government in separate bodies.  The U.S. has the Senate and House of Representatives making up its Congress, a President, and a Supreme Court with lower courts.  Israel’s branches of government consist of the presidency, the legislative branch, which is the Knesset (or parliament), the government or cabinet of ministers, and the judiciary.  But since 1995,  the Israeli Supreme Court, also known as the High Court of Justice — or by its Hebrew acronym “Begatz,” established itself as being superior to all other branches of government, giving itself carte blanche, full discretion and power to determine everything in Israel.  However, this week the loss of checks-and-balances, and the lack of accountability to the people of Israel hopefully may have taken a turn in the opposite direction.

What ‘No Constitution’ Means

Unlike the U.S. which has a constitution, Israel has no constitution, only Basic Laws passed by the Knesset.  Yet, the Israeli Supreme Court has been ruling on the “constitutionality” of anything and everything it chooses to hear!  When the State of Israel was established, and for almost 50 years thereafter, there was a separation of powers. In 1995, though, Aharon Barak, then- President of Israel’s Supreme Court, declared that “everything is justiciable.”  That meant the Israeli Supreme Court granted itself the authority to make military, economic, and even religious decisions, areas which until then were within the purview of the Israel Defense Forces, cabinet, Knesset, and rabbis.

Can you imagine yourself as a general in wartime having the Israeli Supreme Court countermand your orders?  Yet, the Court gave itself the authority to determine rules of engagement, military policy in gathering intelligence, and even military tactics and ethics.  In fact, the Israeli Supreme Court has heard matters and made decisions on whether to release terrorists within political deal and what constitutes permissible targets for airstrikes. They even told the Israeli government to move the security wall that keeps out suicide bombers!

The ability for the elected government of Israel to actually govern was undermined.  Many in Israel lost their confidence in the rule of law, leading to public pressure for judicial restraint and accountability.  What further complicates matters with respect to accountability is the way in which the Supreme Court is chosen.  In the U.S., the Supreme Court justices are nominated by the President, and the Senate must confirm the nominee so that both the executive and legislative branches have a voice in the composition of the Supreme Court. By contrast in Israel, the current 15 justices are appointed by the “Judicial Selection Committee” composed of nine members, three of whom are Supreme Court justices.

Unbalanced Control

Although the rest of the Judicial Selection Committee is composed of two cabinet ministers, two Knesset members and two Israeli Bar Assn. members, the three Supreme Court members essentially can veto and determine who gets onto the Court because it takes an agreement of seven of the nine members of the committee to support a candidate to be appointed. This means that the Israeli Supreme Court has become an oligarchy. A small group has control of who sits on the Court, and under its self-given powers, actually controls the country.

Because the three Court members on the Committee tend to be avowed left-wing justices and an Arab justice, many middle-of-the-road and right-wing nominees have been vetoed to perpetuate the left-wing stance of the Court.

Often the representatives of the Israeli Bar Assn. tend to make alliances with the justices to constitute a majority.

Therefore, when Knesset Justice Minister Ayelet Shaked took office, she vowed to reform a Supreme Court that was overriding and annulling decisions of the Knesset.  She threatened to push a bill through the Knesset allowing the appointment of justices by a mere majority of the Committee, even if was against the Supreme Court’s wishes or none of the Justices on the Committee approved of them. Many citizens felt that finally there would be a more diversified representation on the Court.

Because Israeli Supreme Court justices must retire at 70, four positions will be filled this year. Supreme Court President Miriam Naor and Justice Minister Shaked broke off relations after Ms. Shaked threatened to reform the Judiciary.  But this week, in a compromise between Ms. Naor and Ms. Shaked, Ms. Naor and the bloc of justices agreed to allow the appointment of four new justices — three of whom were Ms. Shaked’s choices — rather than risk the chance that Ms. Shaked would push a bill in the Knesset to appoint justices without the approval of the Supreme Court.

Diversity Is the Answer

The newspapers in Israel, many Knesset members, and citizens of the country, are considering this a major victory for Ms. Shaked.

“The strength of a legal system,” she said, “is dependent on its heterogeneous nature and on the diverse types which make up its human element.

“The new appointments emphasize this approach. Soon the Supreme Court will include views and approaches not seen there previously.”

Education Minister Naftali Bennet praised Ms. Shaked on the selection of “excellent, conservative justices.”  Three of the four are conservative. Two of the three are religious Jews.  Minister Bezalel Smotrich said this was “an important step on the road to changing the character of the court and returning its glory from the first decades in the state’s history, before the activist agenda of Justice Barak took it over.”

Agriculture Minister Uri Ariel said he hopes the Supreme Court “will better reflect Israeli society”  to strengthen public trust in the legal system.

However, far left-wing Meretz party chairwoman Zehava Gal-On said Ms. Shaked preferred “narrow political interests” over the need to fix what she believes is a male dominance on the court.

She Was Wrong

That is so far from the truth.  Women are a central part of the Israeli judicial system. Of the 15 justices on the Supreme Court, five are women. For several years, the President of the Supreme Court has been a woman.   Women comprise more than 60 percent of the magistrate and district court judges in Israel.  That should make it likely that more women will be appointed to the Supreme Court in the future.  Further, more women than men receive their licenses to practice law in Israel, which has the highest number of lawyers per capita in the world.

Whatever the makeup of the Israeli Supreme Court, since not all 15 justices sit on a case, decisions may still be made by those with similar political and social activist agendas.  The President of the Supreme Court determines which justices are assigned to which cases.  If this is anything like the recent past, the more controversial cases tend to have what the public contends are “controversial justices” ruling on them.

Even with more conservative or non-activist justices on the Court, they still may have no role in ruling on controversial cases that overrule or annul the Knesset laws.  But Minister Moti Yogev intends to initiate legislation to revoke the Supreme Court’s ability to annul laws.  He suggests that Israel follow the British system whereby the Supreme Court can point out when a normal law contradicts a Basic Law, but the legislature or in this case the Knesset, would have the ultimate decision as to whether or not the normal law is annulled.

I might have hated the practice of law during my 25 years as an attorney, but I cannot say that the legal system is not fascinating, whether it be in Israel or the United States.

L’hitraot.   Shachar