Does the word “democracy” actually mean anything?
I ask in light of the very confused commentary about the Israeli government’s purported assault on Israeli democracy—an assault on democracy in the very odd form of a democratic vote in the nation’s democratically elected parliament that would give its democratically elected government new oversight powers with regard to the country’s judiciary, which is—many American commentators seem to miss this part—appointed through means only very lightly attached to democratic accountability.
In the United States, Supreme Court justices are nominated by the president, who may choose anybody he pleases, and nominations are subject to Senate ratification. In Israel, the president is obliged to choose a nominee from a list of pre-approved candidates selected by a committee, the majority of whose members are either sitting Supreme Court judges (three members of the nine members) or representatives of the Israel Bar Association (two more). A minority of the committee’s members, four in total, come from the elected side of life: the minister of justice, another cabinet member, and two members of the Knesset, the Israeli parliament. In the United States, the elected members of Congress may remove a Supreme Court justice, but, in Israel, that is not the case, with the power to remove a high-court judge restricted either to the Selection Committee or to a special “Court of Discipline” whose members are appointed by the president of the Supreme Court.
This is not obviously a bad way to manage a Supreme Court (it is not unlike the nominating-commission model seen in states such as Kansas) but it is far from the most democratic way. In some U.S. states, such as Wisconsin, state supreme court justices are elected; in other states, they are appointed by elected governors; in Virginia, judicial elections are handled by means of legislative election, i.e., a vote within the state legislature. In the U.S. process, bar associations may offer an opinion on nominees, but they do not wield the kind of official vetting power that Israel Bar Association representatives enjoy over their country’s Supreme Court. Investing unelected private associations with real political power may be in some cases a useful and prudent practice, but it is certainly a fraught one and it is the opposite of democratic in that it elevates the official power of unelected private parties relative to the authority of the elected representatives of the people.