Analysis |  Lesson From America to Israel: Don’t Let Politicians Appoint Judges

With all the checks and balances it has that Israel doesn’t, the U.S. system isn’t working anymore

President Donald Trump and Supreme Court Justice Amy Coney Barrett during Barrett's swearing-in ceremony at the White House in Washington, on Monday, Oct. 26, 2020.

President Donald Trump and Supreme Court Justice Amy Coney Barrett during Barrett’s swearing-in ceremony at the White House in Washington, on Monday, Oct. 26, 2020.Credit: OLIVER CONTRERAS/NYT
Yael Sternhell
Yael Sternhell
One of the arguments being sold by the leaders attacking the legal system, en route to taking control of the Judicial Appointments Committee, is that Supreme Court Justices in the United States are appointed by politicians, so why not adopt it here? After all, the United States is the first modern democracy and its system of government has lasted for over 240 years.

This argument might sound convincing, but the truth is that importing the mechanism for appointing judges from the United States is actually a ridiculous, dangerous idea. The process of appointing federal judges was set in the U.S. Constitution: The president presents the candidate and the Senate approves. It would seem a completely political process, but the reality is more complex.

First, judges in the United States are bound by the Constitution, which is an inflexible document having the status of the “secular Bible.” Many of its sections are unclear, of course, and the judges interpret them in different ways. Nonetheless, the Constitution grants secure protections for freedom of speech, the press, protest and religion. The Constitution provides equality before the law and the right to citizenship for all those born within the United States. But while American judges operate according to fundamental principles, their counterparts in Israel – with all its partial, fragile Basic Laws – are not limited in the same way.

U.S. Supreme Court police officers stand on the front steps of the Supreme Court building prior to the official investiture ceremony for the court's newest Associate Justice Ketanji Brown Jackson in 2022.
U.S. Supreme Court police officers stand on the front steps of the Supreme Court building prior to the official investiture ceremony for the court’s newest Associate Justice Ketanji Brown Jackson in 2022.Credit: KEVIN LAMARQUE/ REUTERS

Second, the U.S. president may choose which judges to appoint, but because of the complex, diffuse system of government, he does not have as much power as the Israeli prime minister. The separation of powers in the United States is real – the voters vote separately for the two houses of Congress, and the president. For much of the time, the White House and Congress are not controlled by the same party, so the entire legislative process must be carried out through agreement between the two parties.

Additionally, the federal government is just a “super government.” Daily life is run by the states, and each one has its own governor, two houses of the legislature, and state courts – which rule according to their state’s law. Only in this context does the president have the authority to appoint judges, so it is very problematic to import this method and drop it into the middle of a completely different system – in which the prime minister already enjoys enormous power.

Because of the separation of powers, the process of appointing justices to the U.S. Supreme Court is usually conducted while the White House is in the hands of one party and the Senate is controlled by the other party. Thus, in such a situation when the president nominates a candidate, he needs to be acceptable to the other party. It is worth taking a minute to consider the institution of the Senate.

In 1787, when the authors of the Constitution invented their system of government, they saw the Senate as a sort of “House of Lords” – one in which experienced public figures, at least 30 years old, were elected for a long term of six years. According to this logic, senators are supposed to take a national perspective, without giving in to local or sectoral interests.

Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, (standing, from L) Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett pose during a group photo of the Justices at the Supreme Court in Washington, DC.
Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, (standing, from L) Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett pose during a group photo of the Justices at the Supreme Court in Washington, DC.Credit: ERIN SCHAFF / AFP

This vision quickly shattered when faced with reality. In practice, senators are politicians who have their own agendas and interests, similar to other elected officials. But in everything related to appointing judges, many senators have acted as “responsible adults.” Since 1945, senators from both parties have approved judicial appointments of those whose positions on critical issues were different from theirs, on the condition that they have the necessary qualifications. In addition, during this period the Senate under Democratic control has approved a dozen candidates for the Supreme Court who were nominated by a Republican president.

But despite the long tradition and loyalty of Americans to their system of government, there too – in this era of political extremism – the method of appointing judges no longer works as it should. In 2016, during Barack Obama’s second term, conservative justice Antonin Scalia died suddenly. Obama nominated judge Merrick Garland as his candidate for the Supreme Court, an impartial professional with centrist political views. Obama’s stated goal was to nominate an easy-to-digest candidate, whom Senate Republicans could also vote for. But the Republican leader of the Senate, majority leader Mitch McConnell, refused to even allow Garland’s candidacy to be brought for debate.

His baseless argument was this was an election year, when it was not legitimate to appoint a Supreme Court justice, and they should wait until after the elections so the public could decide on the politicians who would then appoint the new justice. McConnell’s actions were a clear breaking of the rules, and were considered a critical moment in the deterioration of the American political system into a constant state of warfare between the two parties. His actions became even more of a scandal in 2020 – when liberal justice Ruth Bader Ginsburg died just a few weeks before the elections and McConnell allowed an accelerated approval process for Donald Trump’s nominee, ultra-conservative Amy Coney Barrett.

The more American politics become similar to Israel’s – the farther it strays from the ideas of the authors of the Constitution and the more it becomes like a battlefield – the more problematic the process of politicians choosing judges becomes. Today the American system is a warning sign of what happens when politicians are given the sole power to appoint judges – and if that’s what happens in a country with an old, well-founded tradition such as the United States, it’s hard to imagine what will come of the appointment of judges by politicians in Israel.

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