Dependence or Independence

The dispute is over whether the justice minister and the cabinet will use their power to influence the choice of the Supreme Court president or whether they will prefer the public interest and the independence of the judiciary.

In his article "Back to the Middle Ages" (Haaretz, August 29), Professor Shlomo Avineri asserted that anyone who would propose that the Israel Defense Forces' longest-serving general automatically be appointed chief of staff, and then hold that post until age 70, would not be taken seriously. By extrapolation, he then concluded that the method used to select the Supreme Court president - the "seniority" system - is flawed.

However, what is flawed is Avineri's conclusion, which ignores the difference between a military command and the Supreme Court. The army is a tool for executing government policy, and its every action depends on the government's decisions. It therefore ought to be headed by the person whom the government considers most suited to carrying out its policy. Moreover, competition for promotion among officers might even produce better results. In contrast, the conditions for the Supreme Court's success, and for the public's confidence in it, are the opposite: absolute lack of dependence on government decisions and an absence of competition for promotion among its justices.

The Supreme Court justices are a varied group. Yet despite this, for nearly 60 years, there was no debate over the suitability of the justice "whose turn had come" by virtue of being the longest-serving; he was simply elected president. The assumption that anyone worthy of being a Supreme Court justice could also be president of the court proved to bejustified. Granted, the Judicial Appointments Committee, which selects Supreme Court justices, influences who the justice "whose turn will come" in the future will be. But Dorit Beinisch was appointed to the Supreme Court 12 years before she became president, and in 12 years, surprises can happen.

The seniority method ensures that the moment a person is admitted to the exclusive club of the Supreme Court, he never again needs to stand for election. He thus has no fear of anyone, does not need to please anyone and in no way competes with his colleagues. From that point onward, nothing exists but the justice who was appointed to the Supreme Court, the law, and the way he interprets the law.

This method also eliminates the danger that a justice who sees himself as a candidate for the court presidency might take into account how his rulings could affect the views of each member of the committee entrusted with choosing the next president. It is hard to exaggerate the significance of the absolute freedom from preoccupation with personal advancement that the current system provides. This would not be the case were the post open to competition. Moreover, relations among the Supreme Court justices themselves would differ from those that exist today if some of them were competing for the top position.

Perhaps the seniority method means that we are passing over the "worthiest" person (in whose view?) in favor of one who is merely "worthy." What we gain, however, is the Supreme Court justices' absolute independence from whoever might select the next president, as well as a tranquil, noncompetitive atmosphere in this important institution, which enables it to devote itself completely to law and justice rather than to personal advancement.

The seniority method is vulnerable to opposition from politicians. Some of them want to exert influence and represent partisan interests. That is what they do; that is their raison d'etre. Had we been unlucky enough to have Haim Ramon as justice minister and chair of the Judicial Appointments Committee at the end of Supreme Court president Aharon Barak's term, would Ramon have passed up the chance to "leave his imprint"? Indeed, Ramon said that he was not obliged to decide on the basis of seniority.

But Ramon was replaced with Meir Sheetrit, who continued the tradition of seniority and supported Beinisch, "whose turn had come." Daniel Friedmann, who replaced Sheetrit after Beinisch was already Supreme Court president, dared to say that "Beinisch should not be removed from her post, but had she not begun her tenure as court president, [he] would have insisted that the seniority system be abolished." According to Friedmann, the most appropriate candidate should be selected as Supreme Court president (and Friedmann and Avineri, of course, know how this should be done: "By an appointment committee of one kind or another," as Avineri unblushingly wrote.)

Avineri was being misleading when he wrote that "of all the issues of controversy between the justice minister and the Supreme Court president, the matter of the automatic appointment by seniority is among the most prominent, because the argument between them is basically one of power." In fact, the dispute is about the dependence or independence of the judiciary. The dispute is over whether the justice minister and the cabinet will use their power to influence the choice of the Supreme Court president (and perhaps even reach some kind of deal with him), or whether they will prefer the public interest and the independence of the president and the judiciary, and therefore refrain from doing so.