CommentaryJonathan Cohen, Pitt Law ’12, studied in Jerusalem as part of a program hosted by the Touro College Law Center and sponsored by Pitt’s Center for International Legal Education. He writes about the differences between Israel and the United States in the areas of judicial appointments and judicial review…
This June, I took courses at the Agron Guest House in the heart of Jerusalem while on a study abroad program hosted by Touro College Law Center. I feel fortunate that I had a group of professors who clung tightly to the idea that “if you don’t learn anything outside of the classroom, there is no reason to be in another country.” Our professors took this seriously, and took us on many excursions that justified studying abroad in Israel. We toured the Supreme Court of Israel and the Knesset, which is Israel’s parliament. I also saw first-hand the separation fence, settlements in the West Bank, such as Ma’ale Adumim, and tours focusing on the region’s contentious geopolitics, especially at the Temple Mount. While we learned much about the Israeli-Palestinian conflict, we also spent a lot of time comparing the Israeli legal system with the American legal system, and I found this to be one of the most interesting parts of the program. In discussions with a current judge, a former Supreme Court Justice, and during a tour of the Supreme Court, we found that Israel’s process of selecting judges by nomination panel, rather than by executive appointment or judicial election as in the United States, would be a recurring theme of the course. The differences between the Supreme Court of Israel and the Supreme Court of the United States formed another frequent topic of discussion.In the United States, federal judges are appointed by the President, and many state and county judges gain their seats in competitive elections. However, Israel follows the example of many other countries and selects its judges by nomination. While Israel does not yet have a formal constitution, the principle of a strong independent judiciary is enshrined in the Basic Law: The Judiciary, which will most likely be included in a formal constitution. The Basic Law sets up a Judges’ Election Committee (JEC) with nine members. The committee includes the President of the Supreme Court, two other Supreme Court Justices, the Minister of Justice, two members of the Knesset, and two members of the Israel Bar Association. Once a candidate has been nominated by the JEC, the candidate must then be approved by the Prime Minister. Like federal judges appointed under Article III of the US Constitution, Israeli judges have a lifetime appointment, subject to removal in limited circumstances. However, Israeli judges are subject to mandatory retirement at the age of 70.
While federal judges in the United States are generally given lifetime appointments after a nomination and confirmation process, the election of some judges at the county and state levels has been, and continues to be, controversial. This controversy has led to a long-standing debate in the United States about judicial selection procedures. Late last year, I reported [JURIST Report] for JURIST’s Paper Chase service on how former Supreme Court Justice Sandra Day O’Connor and the Institute for the Advancement of the American Legal System (IAALS) encouraged states to move from direct judicial elections to a merit-based selection process. The switch to merit-based nominations is also backed by US Supreme Court Justice Ruth Bader Ginsburg, who lent her support to O’Connor’s movement while delivering a speech [JURIST Report] to the National Association of Women Judges. The O’Connor Judicial Selection Initiative (OJSI) is concerned that “politics don’t belong in the courtroom and justice should not be for sale.”
There is not only a difference in the judicial selection process between Israel and the United States, but also in the operation of the highest courts. To bring a case before a court in the United States, a person must have standing, which is met by a showing of injury and causation. One must also appeal their case through a series of lower courts before even petitioning the Supreme Court.
In stark contrast to the American requirement of standing, Israeli law permits anyone to bring a challenge against almost any law. This was not always the case. Israel formerly required claimants to have standing in order to bring a case before the court, but then-Chief Justice Barak liberalized the requirement of standing in Israel in Ressler v. Minister of Defence [PDF], a landmark case which ruled that the “legal standing of a petitioner before the High Court will be recognised if he can show that there is a reasonable prospect that an interest of his (not necessarily amounting to a right) which may be shared by a great number of others, has been prejudiced.” Former Chief Justice Aharon Barak clarified the Israeli view of standing in Iad Ashak Mahmud Marab et al. v. IDF Commander in the West Bank [PDF], which discussed detention policies in the occupied territories: “[U]nder our approach to the issue of standing, any person or organization interested in the fate of the detainee” has a right to file suit. “Indeed, the petition before us was submitted by, among others, seven associations or organizations that deal with human rights.” The court also acts as the High Court of Justice, a court of first and last instance in suits against the government, allowing some claimants to file directly with the court.
Justice Barak also expanded the idea of which cases are justiciable in Israel. This doctrine of justiciability is more narrowly interpreted in the United States than in Israel. If a court, American or Israeli, decides that an issue is non-justiciable, it may refuse to hear a case on the basis that it cannot grant relief for the claim. One of the most common effects of this doctrine, especially in wartime, is to allow a court to evade an issue by declaring it to be a political question. When an American court invokes the political question doctrine, it refuses to hear a case because it believes that the Constitution has given decision-making power to another branch of government, that it does not have proper standards in place to decide the case, or that interference would otherwise be unwise.
However, under Justice Barak’s expanded view of justiciability, the Supreme Court of Israel, sitting as the High Court of Justice, heard cases that would most likely not be heard under similar circumstances in the United States. One such example is the High Court of Justice’s opinion in The Public Committee Against Torture In Israel v. The Government Of Israel [PDF], a case where the court had to decide on the legality of Israel’s policy of targeted killings. After gathering intelligence on who was behind terrorist attacks, the Israeli military would use preventive strikes to eliminate those found responsible. Much to my surprise, the High Court actually heard and decided this case, something I couldn’t imagine the Supreme Court of the United States doing. The US Supreme Court would likely hold that the non-governmental organizations bringing suit in Public Committee Against Torture in Israel lacked standing, not to mention that they would likely avoid addressing issues of specific military tactics. In this case, the High Court’s decision constituted a severe limitation of what the military could do or how it could do it. Because Barak liberalized the doctrines of standing and justiciability in Israel, he has been criticized for his “judicial activism” by University of Chicago Law School Lecturer and Seventh Circuit Judge Richard Posner in an article in the New Republic.
While Justice Barak and his views are not commonly known in the United States, they have been the center of some controversy in the country. Supreme Court nominee Elena Kagan has called Barak her “judicial hero,” a move that has led critics to label her as a judicial activist. While opponents of judicial elections in the United States often worry about judicial activism, Barak’s example seems to show that judges with lifetime appointments can be activists as well.
Photos: Jonathan Cohen
