Justices without an agenda

His position, as presented in the article by Yuval Yoaz (Haaretz, Dec. 12), underscores the problematic nature in choosing candidates "that engage in a public struggle for values which they espouse."

Countering this view is the opinion that says it is not right to block the way to the Supreme Court of legal experts who have made their views public on various major public issues that relate to the nature of the state, human rights and the role of the Supreme Court in a democratic society. This position underscores the view that candidates for a post in the nation's highest court should have a worldview, and must not be indifferent to the fate of their fellow citizens and the issues dividing the public.

This view appears appealing. It opens the door to Supreme Court appointments of jurists, including academics, who previously were not part of the legal system and who can contribute a great deal to enrich the court. Consequently, involvement in public affairs could be indicative of a future judge that cares and is not indifferent to what is happening in society.

The approach that supports judges who have a "social agenda" is common in the United States, where the selection of Supreme Court judges has long become a battleground between the president, who nominates the judges, and the Senate, which must confirm the nominations. The candidate's views on important political and social issues (for example abortion) are out there for all to see and explore, and serve as the object of dispute between the political parties.

This is not the way things have been done in the State of Israel. We have accepted a system by which candidates for the Supreme Court are chosen based on their expertise in major areas of law, without ever asking them their views on ideological issues. With the exception of the appointment of religious judges, it has not been possible so far to predict the views of those appointed on various controversial issues, such as the proper balance between a Jewish and democratic state, limitations of the freedom of speech, punishment policy and so on. The working assumption is that these subjects will be generally debated by broad panels of judges, and that decisions will be made based on the majority view. Another working assumption, one that is quite proper, is that matters of belief and faith are debated in the Supreme Court only rarely, despite the noise they make, and that the most important thing is to appoint judges skilled in the law.

Changing this approach is a fundamental matter, which could be appropriate were the Supreme Court no longer the court of appeals - which as such must debate thousands of cases each year that require legal knowledge in extremely varied areas of law. The higher courts - of the kind found in the United States, Canada or Britain - debate with a full panel only matters of principle of the kind that awaken ideological disagreement among the judges. If our Supreme Court were to be turned into that type of court, it would then be proper to include among its judges "right-wing" and "left-wing" judges whose agenda is known and transparent. It is in this spirit that the constitutional court in Germany is set up.

In the current state of affairs, the selection of judges waving different banners would play into the hands of the politicians (ministers and Knesset members) on the judge-selection committee, who would rightly support candidates whose views are close to theirs, and the issue of professional skill and legal knowledge would become secondary.

In the current state of affairs, without a clear understanding up front that the judges express different ideological views, public trust in the Supreme Court could be undermined, because this trust is based on the belief that those chosen are skilled legal experts not selected to represent any particular "ticket." The public tends to view the Supreme Court as a moral, "neutral" institution that acts in accordance with relevant considerations, without any political bias.

The professional legal approach, which opposes the selection of judges that have a public agenda and ideological views that they have made public before becoming judges, could cost the system by forcing it to relinquish excellent and brilliant individuals who are controversial. It would appear that this concession is called for if we want to safeguard the current framework, before making a serious change that requires preparation and an in-depth debate, after the elections.