Last Friday I had a jaw-dropping experience, while watching on CNN the drama at the Senate Judiciary committee regarding the confirmation of Brett Kavanaugh to the USA Supreme Court. What seemed at first as a routine Trump nomination (like recent process with Neil Gorsuch) turned into a hurdle race, as Prof. Blasey-Ford came forward with her allegation against Kavanaugh. After Senator Jeff Flakes was yelled-at trying to exit a Congress-building elevator in a live broadcast by CNN, everybody knew this confirmation process won't go as usual.
Well, the committee voted 11-10 in favor of the nomination, but with a plea to investigate the allegations by the FBI. As I write these lines no one knows what the FBI may find, and what its recommendations will be (submitted to the Senators in the committee and not to the public).
But this process shows the American Justices appointment with all its pros and cons. The American justice system is different from the Israeli one in almost every aspect. US Supreme court consists of 9 members, while the Israeli one has 15. Supreme court justices have no time-limit for their tenure, and some of them die in office, others prefer to retire. In Israel they leave the court when turning 70. But the most profound difference is the confirmation process. The American President picks a nominee, usually one who has similar views of his on major issues. The senate confirms the president's pick. So these two government branches dictate the manpower of the third one, and thus its direction (a crucial matter when the Supreme Court has currently a 4-4 balance between conservatives and liberals).
When this is the reality, no wonder Kavanaugh tried to shift the spot to an alleged Dem's conspiracy against him during his hearing process, meaning that he actually made this process absolutely political. But here enters #MeToo movement into the arena, and the distinguished Senators were forced to reach a compromise on Kavanaugh's confirmation process.
Blasey-Ford's allegations reminded many people of Anita Hill's testimony at the Senate 27 years back. Clarence Thomas, whom she accused of sexual harassment of her, was nominated by a Republican (G.W.H. Bush) but got a fiery boost from the Dem's corner at the floor. As he is an African-American, who was to replace the first African-American Supreme Court Justice ever (Thurgood Marshall), his confirmation was crucial back in 1991. Finally the committee had a tie (7-7), and the Senate confirmed Thomas by a slim majority (52-48), the slimmest since Lucius Lamar's confirmation, back in Jan. 1888. And yet, Justice Thomas sits on the bench ever since… Anita Hill was kicked out of government posts and made a good career at the academy (Harvard and Brandeis universities). It should be noted that there were Dems and GOP Senators for and against Thomas's confirmation. This time it might be solely partisan, if the FBI won't find anything that proves Kavanaugh did actually harass women in the 80's.
You may ask – what this event has to do with the judicial reality in Israel?
If we take a large-scale observation of the differences between the two systems, we may find three main subject of interest: publicity of the process (appointing and confirming judges); politicization of the process; maintaining the separation of powers among the branches through this process.
Let's start with the publicity of the process: Justice Brandeis said in 1914 that : "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants". However, after watching the "circus" at the senate, one can wonder how much publicity really contributes to the image of the Supreme Court and the confirmation process. On the other hand, without transparency some nominees may be found unfit for the job or having a problematic past after they are approved.
Politicization of the process: Partisan pick of nominees doesn't bring glory to the judicial system anywhere, although we may assume that each pick was chosen carefully among the best in the field. During Trump's era, politicization seems to be annoying in particular, as he picked a judge who spoke publicly against inquiring a reigning President. These days, when an inquiry is held regarding Russian meddling in Trump's campaign, this appointment means a lot to the President. Another main issue that is on the line is "Roe vs. Wade" Supreme court decision on abortion (which may take a conservative turn if Kavanaugh is confirmed) and many more issues that may influence millions of Americans.
Separation of powers: Senator Patrick Leahy of Vermont said at the committee boldly that "this committee is directed from the white House", meaning that the GOP majority in the committee cannot really make up their minds freely, but have to obey the President's will… If the public elevator incident with Sen. Flake had never happened, most likely that this confirmation was through on Friday without any delay. It seems that appointing Supreme Court Justices is handled without any judicial branch involvement…
Well, in Israel there is no transparency of the confirmation process of judges at all, except informing the public who the nominees are (at all levels of court). Politicization of nominations is bragged about (by the AG Ayelet shaked herself), and some ministers (headed by the minister of Tourism Yariv Levine) advocate a deeper ministerial control of the court in general and the confirmation process of judges in particular.
Since its creation 70 years ago, the Israeli judicial system tried to avoid being politicized as much as it could. Judges demanded freedom from political pressure, and it worked. Publicized hearings is strange to the Israeli political and judicial systems anyhow.
If we let the system of justice in Israel surrender and get dragged into politics as it's done in America nowadays, we may lose our confidence that justice is made. Why hurting our celebrated and appreciated judicial system? That's for all of us to think about.
Well, the committee voted 11-10 in favor of the nomination, but with a plea to investigate the allegations by the FBI. As I write these lines no one knows what the FBI may find, and what its recommendations will be (submitted to the Senators in the committee and not to the public).
But this process shows the American Justices appointment with all its pros and cons. The American justice system is different from the Israeli one in almost every aspect. US Supreme court consists of 9 members, while the Israeli one has 15. Supreme court justices have no time-limit for their tenure, and some of them die in office, others prefer to retire. In Israel they leave the court when turning 70. But the most profound difference is the confirmation process. The American President picks a nominee, usually one who has similar views of his on major issues. The senate confirms the president's pick. So these two government branches dictate the manpower of the third one, and thus its direction (a crucial matter when the Supreme Court has currently a 4-4 balance between conservatives and liberals).
When this is the reality, no wonder Kavanaugh tried to shift the spot to an alleged Dem's conspiracy against him during his hearing process, meaning that he actually made this process absolutely political. But here enters #MeToo movement into the arena, and the distinguished Senators were forced to reach a compromise on Kavanaugh's confirmation process.
Blasey-Ford's allegations reminded many people of Anita Hill's testimony at the Senate 27 years back. Clarence Thomas, whom she accused of sexual harassment of her, was nominated by a Republican (G.W.H. Bush) but got a fiery boost from the Dem's corner at the floor. As he is an African-American, who was to replace the first African-American Supreme Court Justice ever (Thurgood Marshall), his confirmation was crucial back in 1991. Finally the committee had a tie (7-7), and the Senate confirmed Thomas by a slim majority (52-48), the slimmest since Lucius Lamar's confirmation, back in Jan. 1888. And yet, Justice Thomas sits on the bench ever since… Anita Hill was kicked out of government posts and made a good career at the academy (Harvard and Brandeis universities). It should be noted that there were Dems and GOP Senators for and against Thomas's confirmation. This time it might be solely partisan, if the FBI won't find anything that proves Kavanaugh did actually harass women in the 80's.
You may ask – what this event has to do with the judicial reality in Israel?
If we take a large-scale observation of the differences between the two systems, we may find three main subject of interest: publicity of the process (appointing and confirming judges); politicization of the process; maintaining the separation of powers among the branches through this process.
Let's start with the publicity of the process: Justice Brandeis said in 1914 that : "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants". However, after watching the "circus" at the senate, one can wonder how much publicity really contributes to the image of the Supreme Court and the confirmation process. On the other hand, without transparency some nominees may be found unfit for the job or having a problematic past after they are approved.
Politicization of the process: Partisan pick of nominees doesn't bring glory to the judicial system anywhere, although we may assume that each pick was chosen carefully among the best in the field. During Trump's era, politicization seems to be annoying in particular, as he picked a judge who spoke publicly against inquiring a reigning President. These days, when an inquiry is held regarding Russian meddling in Trump's campaign, this appointment means a lot to the President. Another main issue that is on the line is "Roe vs. Wade" Supreme court decision on abortion (which may take a conservative turn if Kavanaugh is confirmed) and many more issues that may influence millions of Americans.
Separation of powers: Senator Patrick Leahy of Vermont said at the committee boldly that "this committee is directed from the white House", meaning that the GOP majority in the committee cannot really make up their minds freely, but have to obey the President's will… If the public elevator incident with Sen. Flake had never happened, most likely that this confirmation was through on Friday without any delay. It seems that appointing Supreme Court Justices is handled without any judicial branch involvement…
Well, in Israel there is no transparency of the confirmation process of judges at all, except informing the public who the nominees are (at all levels of court). Politicization of nominations is bragged about (by the AG Ayelet shaked herself), and some ministers (headed by the minister of Tourism Yariv Levine) advocate a deeper ministerial control of the court in general and the confirmation process of judges in particular.
Since its creation 70 years ago, the Israeli judicial system tried to avoid being politicized as much as it could. Judges demanded freedom from political pressure, and it worked. Publicized hearings is strange to the Israeli political and judicial systems anyhow.
If we let the system of justice in Israel surrender and get dragged into politics as it's done in America nowadays, we may lose our confidence that justice is made. Why hurting our celebrated and appreciated judicial system? That's for all of us to think about.