High Court judge selection is critical in Israel's culture war - opinion

• Published date: 07 October 2021
• Author: YEDIDIA STERN
• Publication title: Jerusalem Post, The: Web Edition Articles (Israel)

In the Israeli public debate, two differing camps have taken root: those who view the candidate's "professionalism" as the sole selection criterion, and those who believe that significant weight should also be given to the "representativeness" of major identity groups within the court. What is the right balance between professionalism and representativeness in the selection of judges, and who should make that determination?

The tension between representativeness and professionalism is not unique to the legal sphere. For example, should senior officials in the Finance Ministry's Budgets Department – who have a great deal of influence on our quality of life – be appointed solely in accordance with professional standards, or should its staff reflect heterogeneity with regard to socioeconomic worldview, in a way that represents the full range of opinions about the state's role and its responsibility to its citizens?

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And in the army: Would the professional decisions of a General Staff consisting entirely of right-wing generals be the same as those of a General Staff whose generals all hold left-wing views? Although a commander's political orientation is not known to the public, and rightly so, it clearly affects the way he reads the geopolitical picture – and therefore, in certain instances, influences his decisions.

Back to the judges: We are comfortable thinking of judges as objective professionals whose work is quasi-scientific in nature and independent of the surrounding environment, society, or culture. But that is not the reality. In a chess match, the personal attributes of a player do not affect the applicability or interpretation of the rules of the game. In contrast to the legal world, the judge's values and identity affect the way he or she interprets the law and administers justice.

A typical legal dilemma does not have one true answer, but several legitimate alternatives the judge must choose among through the exercise of his/her discretion. As former Supreme Court president Aharon Barak described, in "easy" cases the range of legitimate possibilities – the playing field where discretion is exercised – is limited, while in "difficult" cases the range is wide.

As a rule, judges do not speak in simple true or false binaries, but rather in a language of weighing and balancing that requires the exercise, sometimes...