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When Professionalism Trumps Politics

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U.S. President Donald Trump speaks next to U.S. Supreme Court Associate Justice Brett Kavanaugh as they participate in a ceremonial public swearing-in in the East Room of the White House in Washington, U.S., October 8, 2018.
U.S. President Donald Trump speaks next to U.S. Supreme Court Associate Justice Brett Kavanaugh as they participate in a ceremonial public swearing-in at the White House, October 8, 2018. Credit: REUTERS/Jim Bourg

The many Israelis who intensely watched on their TV screens the confirmation hearings of President Donald Trump’s nominee for the U.S. Supreme Court, Brett Kavanaugh, and the accusations leveled against him by Christine Blasey Ford, may have been surprised by the Senate’s decision to confirm the nomination after a short FBI investigation. They should not have been surprised.

As Israelis who are acquainted with the U.S. Constitution know, the nomination and confirmation of Supreme Court justices in the United States is a political process. When there is a vacancy the president nominates a candidate whose views are known to be consistent with his own, and if the president controls a majority in the Senate he will be nominated for life. Trump’s party, the Republicans, control a majority of the Senate at the moment, and the approval was almost guaranteed despite the high drama accompanying the process.

When the president does not command a majority in the Senate when an opening on the court occurs, the appointment depends on being able to reach a compromise with the party that is controlling the Senate – which is not always possible.

Since appointments to the Supreme Court are for life, it is quite possible that a newly elected president may become quite frustrated waiting for a vacancy to occur during his tenure. A famous case is that of President Franklin D. Roosevelt, who saw a number of New Deal measures struck down by the Supreme Court. In his impatience he asked for the introduction of the Judicial Procedures Reform Bill of 1937 (aka The Court Packing Plan) so as to be able to increase the number of the justices on the court. It did not work out.

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America has continued to hobble along with a process whereby the composition of the Supreme Court is essentially dependent on the political process and determined by political considerations and not by professional merit.

Israel is quite another story. For many years appointments to the Supreme Court were based on a process based on what is referred to as “a friend brings a friend.” In other words, some members of the Supreme Court would constitute a committee, together with some members of Knesset and members of the legal profession [along with the justice minister], which would vote on candidates for vacancies as the justices reached the mandatory retirement age of 70. With all its imperfections the Israeli process of selecting justices for the Supreme Court still seems preferable to the American process.

The complaints against it have been directed primarily against the relative uniformity, if not one-sidedness, of those selected for the bench. As was to be expected, the complaints came mainly from the right wing of the political spectrum and have become more insistent in recent years, including the questioning of the right of the Supreme Court to disqualify laws that have been passed by the Knesset. This, of course, is a separate “issue,” but is obviously related to the opinions regarding the composition of the court itself. Great care must be taken not to throw out the baby with the bath water.

Alexander Hamilton wrote in a 1788 article in Federalist Paper No. 78 that, “Liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments.”

That advice given by Hamilton to his countrymen many years ago is still relevant to this day.

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