Amit Segal is a senior Israeli journalist who appears regularly on Channel 12 News, the country's most watched news broadcast. Whenever Segal notes that Israel is the only democracy in which the politicians don’t choose the judges, and where judges have the power to repeal laws passed by politicians, he is quoting from a Kohelet Forum paper published in 2019.
Segal is not misreading. That is indeed the conclusion of that paper. “Among the 17 members of the OECD in which the highest constitutional court is the Supreme Court (and not a constitutional court), only in the United Kingdom and in Israel is the selection of justices (or at least, most of them) not entrusted exclusively to elected public officials. As noted above, the Supreme Court of the United Kingdom, which does not have the power to overturn legislation, is not comparable to the Supreme Court of Israel, which does. Thus, among the members of the OECD, Israel stands alone.”
The Kohelet Policy Forum, a conservative, right-wing think tank that enjoys generous research budgets thanks to the American billionaires that donate to it, not only fashions Segal’s opinion and through him that of public opinion in Israel at large. Kohelet, by all signs, is the think tank fashioning Benjamin Netanyahu and Yariv Levin’s constitutional revolution.
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As has been reported, Levin came to the justice minister’s chambers with prepared bills. The bill he’s advancing may be governmental, but it wasn’t written by the Justice Ministry, which only saw it for the first time a week ago. Another, external source wrote the bill for Levin, who is currently forcing it down the Justice Ministry’s throat.
This is the first time that a governmental bill is written by an outside contractor, and no one has any doubt who the only entity is with the means, the workforce, and the conservative legal ideology to produce such a bill: None other than the Kohelet Forum.
The propaganda succeeds
As the entity shaping Israel’s public opinion through Segal, and its legislation through Levin, the Kohelet Forum’s professionalism and analytical and deductive skills bear a deeper look. “Selecting Judges to Constitutional Courts – A Comparative Study”: This is the title of the Forum’s comprehensive 2019 paper. The work is signed by three: Adv. Shai Nitzan-Cohen, Dr. Aviad Bakshi, head of the Kohelet Forum’s legal department and Adv. Shimon Nataf (currently an adviser to the Knesset Constitution, Law, and Justice Committee chairman, Simcha Rothman, in the effort to turn legal counsels into political appointments).
The three conducted a comparative review of judicial selection processes in 36 OECD countries (in 2019) and some additional ones. The paper lays out the judicial selection methods in all 36 developed countries, focusing on what seems to be the only important thing to its authors: Are public elected representatives involved in the selection of judges? This is the Kohelet Forum’s only research question, and the authors write their conclusion: “Of the 36 OECD member states, 31 countries grant control over the selection of the members of the highest constitutional court to elected public officials,” the summary reads. QED.
The Kohelet Forum is the most influential research institute in Israel, but one with a tendency to shoot its arrow first and then draw a target around it. When the data didn’t fit the desired conclusion, the Forum’s agenda overcame its professionalism.
This strident numerical datum indicates that Israel is one of six developed countries in which the public’s elected representatives do not control the selection of Supreme Court Justices. But in fact it is one of three countries in which the Supreme Court both repeals laws and isn’t selected by politicians. This should have been the Kohelet Forum’s conclusion: Israel is one of six or three countries.
The headline claiming that Israel is the only country in the OECD to select judges as it does is a step in artificially forcing the data (a problematic distinction between supreme and constitutional courts), designed to create a resounding headline. Fact is, it worked: Segal quotes it almost nightly.
But the problem is not just with the artificial headline, but with how the conclusions were drawn. A look at the database so diligently collected by Kohelet in its study reveals the miss. It’s true that in 31 of 36 such countries, public representatives are the ones selecting the judges, but it would be equally true to say that in 24 of 36 developed countries, judges are selected in consultation with the judicial system and upon its recommendation.
While in most of these countries this recommendation carries no legal force, in practice it is binding, as the public representatives listen to the judges’ recommendations and act upon them. The political culture in these countries is such that public representatives select the judges with the consent and blessing of the judicial system – a political culture completely different than that in Israel.
The other developed countries, in which there is no appreciable involvement of the justice system in judicial selection, are almost all countries with constitutions. Some have a federal structure of several states, each with its own additional supreme court protecting the residents of that federal state. Most have bicameral legislatures not necessarily controlled by the party controlling the executive branch, and so the government’s power is decentralized.
Usually judicial selection requires the consent of the government as well as both houses of parliament, and almost always the choice in the legislative chambers requires a large majority (usually two thirds of the votes, and even an absolute majority). In other words, the coalition, which does not rule alone and cannot appoint judges on its own, needs the consent of the opposition as well. None of this exists in Israel, and that completely changes the picture.
Prof. Amichai Cohen, Dr. Guy Luria and Dr. Nadiv Mordechai from the Israeli Democracy Institute devoted an entire analysis of the Kohelet Forum’s study. They ask how it is possible to conduct an international comparison of the judicial selection process, and focus only on the question of whether the public’s elected representatives do the selecting, while ignoring the contexts surrounding the comparison. Thus, for example, the fact that the absolute majority of OECD countries have a constitution and a declaration of human rights which the elected officials have almost no ability to harm. Naturally, in countries where human rights are well fortified, there is less sensitivity regarding judicial review and judicial selection.
When Cohen, Luria, and Mordechai added two more columns to Kohelet’s list – namely, the number of protected human rights in each country, and the degree of this protection rated from strong to weak – the picture flipped on its head. Israel is once again the only country in the world to practice its judicial selection method, but in a way that is just the opposite of what the Kohelet Forum indicates. Israel is the country with the least amount of protected rights (only six), and the one with the weakest protection for the rights it has.
The Israeli Democracy Institute also added to the overall comparison the degree of control the government has in selecting judges or whether the government requires cooperation with other branches of government, be it the houses of parliament or the judicial branch, and here Israel came out in the middle. Here, too, the Judicial Selection Committee requires agreements between elected officials and judges. Neither has the decisive vote.
When the data didn’t fit the desired conclusion, the Kohelet Forum’s agenda overcame its professionalism.
The Kohelet Forum said in response: “The comparative study on judicial selection mechanisms is the most comprehensive study on the subject done in Israel. The conclusions of the study are clear: Israel is abnormal in the democratic world in that the decision on judicial appointments to the top constitutional instance is not in the hands of elected officials. The duty to consult with judicial figures is not akin to membership of the judges in the committee itself, and certainly not a situation where the judges have a blocking bloc. The fact that Israel has no full constitution actually calls for more representation in the court. Likewise, the argument regarding federalism or bicameralism only stresses the need to protect our only Knesset from alternative, unauthorized sources of norm-setting.”