Unknown: Our next Supreme Court
Last week was an excellent week for passing bills quietly, almost without anyone noticing. The bill to disperse the Knesset - which never was submitted - overshadowed any other bill, no matter how important.
Last week was an excellent week for passing bills quietly, almost without anyone noticing. The bill to disperse the Knesset - which never was submitted - overshadowed any other bill, no matter how important. That is how the first reading of a bill requiring a majority of seven out of nine members of the Judicial Appointments Committee to appoint a Supreme Court justice passed on Tuesday.
Hard as it is to believe, this revolution, drafted by Likud faction chair Gideon Sa'ar, started out only at the beginning of the summer session a month ago. It moved ahead with dizzying speed with the support of the coalition and Kadima, and it apparently will pass its second and third readings, becoming law, before the end of the summer session next month. All that was accomplished with almost no real public discourse.
The Knesset Constitution, Law and Justice Committee, for example, devoted only one debate to preparing the first reading of the law. This debate was much more superficial than the one on prohibiting the sale of bongs.
The main expert who spoke at the committee meeting was Nobel Prize Laureate Robert Aumann, who examined the balance of power in the Judicial Appointments Committee based on game theory. Remember: We are talking about how one of our branches of government is chosen; some believe the most powerful. So much ink has been spilled here over the change in the Knesset electoral system that few believe it will take place, but the Sa'ar bill is passing silently.
The Judicial Appointments Committee has nine members: three representatives from the Supreme Court, including the court president; two from the cabinet, including the justice minister, who serves as committee chair; two MKs, one from the opposition; and two representatives of the Israel Bar Association. At present, a justice can be appointed, as can any other judge, with a regular majority. Since the three Supreme Court representatives almost always vote together, their bloc has more than average power. Likewise, the coalition, if it is homogeneous, can also create a three-member bloc.
Sa'ar wants Supreme Court appointments to have the approval of seven out of nine committee members (or six out of eight, if one member is missing). This is a minimum 75-percent majority. He likes to call his proposal "the third way." Sa'ar says this is a compromise between those who argue that the present system is working excellently and must not be touched, and those who say politicians' impact on the committee must be increased. The current relationships in the committee are based on dissension. Sa'ar argues that his proposal will require dialogue, compromise and consensus candidates, though he does not necessarily intend this to mean agreement on every candidate. It also could include deals for two opposing candidates.
One reason no public discourse surfaced over Sa'ar's bill is apparently Supreme Court President Dorit Beinisch's statement that she would not express an opinion on the law, meaning that she would not oppose it. In the age of Justice Minister Daniel Friedmann, she apparently sees the Sa'ar bill as the lesser evil.
The only senior judicial personality known to have come out publicly against the law is Israel Bar Association chair Yuri Guy-Ron. Guy-Ron warns that compromise and consensus means compromising on mediocrity and the lowest common denominator. MK Dov Khenin (Hadash) warned Tuesday in the Knesset that the bill gives the coalition, with its three votes, the right to veto appointments of Supreme Court justices. The concern was also raised that the system would bring about not dialogue but paralysis in the committee.
It is unclear why the Knesset believes that the law should be passed before the end of the summer session. The truth is that it should wait until the beginning of the winter session to gauge responses to it. It is certainly possible to expect that the work on the law in the Constitution, Law and Justice Committee, ahead of its second and third readings, will make a much more significant attempt to clarify its significance, summoning a number of experts in the process. It may also be expected that other bodies, such as the Israeli Democracy Institute or the Herzliya Interdisciplinary Center, will move quickly to hold conferences in the coming days. Above all, the Knesset should pass Sa'ar's bill as a temporary law, so we can examine whether it spells redemption or disaster. At this point, the main concern is that we are buying an unknown product, and this product is our next Supreme Court.
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