Why is it a strange petition? For two reasons. The first reason is the ban the petitioners are asking the court to impose on a holding a discussion on the issue. The acceptable rule is that the High Court deals with practical matter rather than with theoretical questions. The need for such a petition, therefore, is unclear.
The second, and more important, reason is the inherent conflict of interest which all Supreme Court judges are subject to when dealing with the seniority issue. The conflict of interest stems from the fact that cancelling the method would make each and every one of them a possible candidate for the prominent position. Even if we assume that the discussion Minister Shaked wishes to hold will have some kind of practical meaning, it’s unclear who can even discuss such a petition.
The petition only exposes the fundamental problem in the way Israel’s Supreme Court is run, a Supreme Court whose judges feel no obligation to answer to anyone. The High Court will likely deny the petition, if only for the sake of appearance. The Judicial Selection Committee’s discussion will likely feature experts and jurists who will voice their different opinions. Some will support the method, while others will oppose it. Let’s just hope that the justice minister won’t cave in and will get the committee to adopt a decision in principle against the seniority system.
President Reuven Rivlin made a good argument against the system earlier this week. The president noted, with a lot of integrity, that in spite of the positive experience gained with the seniority system, it’s definitely possible that this method will cause the State of Israel a great amount of embarrassment. Israel has no efficient impeachment system for Supreme Court justices, and a situation in which the State of Israel’s legal system is headed by a bad judge, lacking inspiration and management skills, is definitely possible.
Beyond the concern raised by Rivlin, which is somewhat theoretical at this point, cancelling the seniority system is genuinely required. Would we accept a situation in which the most senior general in the IDF’s General Staff is automatically appointed chief of staff? Would we be able to live with a situation in which the most senior minister becomes prime minister? Even at the Knesset, where the “most veteran Knesset member” opens the first parliamentary session, he is replaced with a democratically elected Knesset speaker within days or even hours.
The seniority system serves as a negative incentive for excellence among Supreme Court justices. Furthermore, it creates unnecessary and problematic score-settling in Supreme Court appointments, because the moment a justice is appointed, his or her future presidency is already determined. The fact that this method has yet to disgrace the Supreme Court and the State of Israel can be seen as a sort of miracle, but according to the famous Talmud rule, we must not rely on miracles. The seniority system must be canceled, the sooner the better.