Published 28 March, 2023
Abstract:
The Israeli Law Professors’ Forum for Democracy, an ad hoc and voluntary group of experts on Israeli law and specifically Israeli public law, expresses its grave concern over the apparent intention to abolish the independence of the judiciary, to subordinate it to the government and to the partisan political considerations of the executive branch, to undermine the independent status of the attorney general and civil service legal counsels, and to violate human rights. In this position paper, we address the procedures for appointing judges in the United States.
· The claim by proponents of changes in Israel that elected officials choose all judges in the United States is mistaken and misleading.
· The United States judiciary includes federal and state judges who preside in courts on several levels. Each state has a different system for appointing its judges, and the President of the United States has no role in any of these.
· In the case of Federal judges, whom the President appoints, the Constitution of the United States requires the approval of the Senate. This constitutes a significant check on the President’s power because the opposing party might hold the majority in the Senate.
· Additional checks and balances in the United States that do not exist in Israel include: the existence of two legislative houses and a federal system.
· Furthermore, although the political nature of federal judicial appointments is criticized, it is virtually impossible to amend the Constitution in order to correct this: the majority requirements are impossible to meet in the light of current social diversity and political polarization.
· In light of all the above, the claim that granting the coalition majority exclusive control over electing judges in Israel would mirror the model in the United States is false.