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Iddo Porat, College of Law and Business Courts and Polarization

The Israeli Supreme Court is undergoing a process similar to the one that happened in the US Supreme Court of a move from sectorial diversity – in terms of geography, gender, race, ethnicity, religion and so on – to political diversity – in terms of maintaining a balance between left and right on the Court. While sectorial diversity mechanisms in both courts still exist the far more important factor becomes the political makeup of the Court. The article will first attempt to document this shift and asses the reasons for it in both countries, including similarities and differences between the two. The hypothesis would be that increased political polarization in both countries is a crucial factor. It will then attempt to document the way this shift has manifested itself in the selection process in both countries, such as the overt politicization and personalization of the process. It will finally attempt to draw some conclusions and general observations out of these two examples, and, in the Israeli case, suggest some concrete changes. The main conclusion would be that once politicization has occurred, it overshadows all other considerations, and is very hard to undo. The suggested change in the Israeli case is to revert to a selection process similar to the current American one – an open political nomination. But, crucially, this process must maintains a political balance on the Court, ideally, reserving equal representation of right and left on the bench. Secondly, the makeup of the selection body should also imitate the American experience and become strictly political. Currently both the members from the Court and the members from the Bar on the Israeli judicial committee are being drawn into the political cauldron, and end up being representatives of one of the political camps to their own detriment . Finally, the politization of the Court means also that the Israeli Supreme Court should ideally sit en bunc rather than in panels, as the current system of panels of three allows for political moral luck at best and political manipulation at worst.

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