Rivka Amado
Bar-Ilan University
Checks, Balances, and Appointments
in the Public Service: Israeli Experience in
Comparative Perspective
This article explores the process of appointing government ministers and senior executive officials in Israel. It provides several case studies of the appointment process in the 1990s, a period
of hyperfragmentation in the Israeli parliament. These studies reveal evidence of gross irresponsibility in the appointment process, as well as a lack of a meaningful oversight and checks in the
process. One consequence is that the Israeli High Court was asked to intervene and review and
reject a number of these appointments. The article argues that although well meaning, this
intervention represents a dangerous new trend; this new role for the Courts is both inappropriate and counterproductive. It is inappropriate because judicial intervention imposes a legal
solution when a political solution is called for, and it is counterproductive because frequent
judicial intervention weakens both the judiciary and the political process. The article concludes
with a proposal for an alternative approach to cope with the lack of meaningful oversight in the
political-appointment process.
This article explores the appointment process for government ministers in the Israeli cabinet and senior executive officials in the Israeli public service. It examines the
institutions that are supposed to exercise oversight and
check these appointments, finds them wanting, and proposes an alternative. In the United States, with its constitutional system of separation of powers, the president’s
power to appoint is checked by the Senate’s active role in
exercising its “advice and consent” powers.1 In Israel, with
its parliamentary system, there is no such robust check on
the appointment power of the prime minister and his ministers. In theory, this power is subject to Knesset approval,2
and the fused powers of a parliamentary system foster accountability and responsible government in ways that a
presidential system with separation of powers does not.
Yet, as we will see, under some conditions—and conditions that prevail in Israel—this benefit is more apparent
than real. It does not work in Israel, at least under conditions of hyperfragmentation in the governing coalition.
Problems with weak appointments reached crisis proportions in the 1990s and, as a consequence, the Israeli
High Court intervened to review and reject several execu-
tive appointments. In a sense, the Court assumed a function similar to the “advice and consent” powers of the U.S.
Senate in overseeing these appointments. Although some
have heralded this development as a triumph of the “rule
of law” over naked politics and see it as a means of protecting against “unreasonable” appointments (Barak 1993;
Gavison, Dotan, and Kremnitzer 1999; Landau 1989;
Rubinstein 1991; Zamir 1993), this article argues that this
emerging new role for the Court is both inappropriate and
counterproductive. It is inappropriate because judicial intervention provides a legal solution where a political solution is better suited. In the long run, such intervention runs
the risk of weakening both the judiciary and the political
process. Certainly, horizontal accountability by means of
checks on the power of executives to appoint is needed in
all modern government (O’Donnell 1999), but the soluRivka Amado is a lecturer in the department of political studies at Bar-Ilan
University in Israel. She received her B.A. and M.A. at the Hebrew University
In Jerusalem and her Ph.D. at the University of Toronto. She has published
numerous articles on bioethics, ethics and education, ethics and leadership,
and public-service ethics. Her articles have appeared in Theoretical Medicine, Journal of Medical Ethics, Administration and Society, and International Public Administration. Email: [email protected].
Israeli Experience in Comparative Perspective 569
tion to this problem in Israel is to strengthen Knesset oversight, not judicial oversight. More generally, this article
explores accountability in the executive-appointment process in parliamentary systems under conditions of
hyperfragmentation. In so doing, it reveals factors that challenge conventional wisdom about the advantages of oversight and accountability in parliamentary over
presidentialist systems.3 Indeed, it ends by calling for a
presidentialist solution to the problem, a proposal that is
consistent with several recent trends in the Israeli government structure.
This article is organized as follows: Part I explores the
debate about the strength of public-service appointments
in parliamentary and presidentialist systems and finds that
parliamentary systems generally earn higher marks for the
quality of executive appointments. However, it also shows
that this advantage may not apply in situations where there
is hyperfragmentation among the parties in the governing
coalition. Part II presents several case studies of the appointment process in Israel in the 1990s. These case studies reveal evidence of substantial irresponsibility in the
appointment process, as well as a lack of meaningful oversight and checks on the process. Part III explores the Supreme Court’s emerging role in trying to counter this development, arguing that although the problem is both real
and serious, judicial intervention is fraught with danger
both for the Court and the rule of law on the one hand, and
for responsible party politics on the other. Part IV outlines
an alternative approach—strengthening the role of the
Knesset—to cope with the problem of irresponsible political appointments.
Separation of Powers and Appointments
in Public Service
In a 1991 article, Fred Riggs makes a compelling argument for the need for comparative analysis in the study of
public administration (474). He develops his argument by
examining the ways senior appointments in the public service are made in regimes with and without constitutional
provisions for the separation of powers. He finds that in
presidentialist regimes, there is a strong need for both the
president and the legislature to make political appointments
that “rely heavily on patronage (spoils, clientelism,
cronyism) in staffing the public service.” In contrast, he
finds that parliamentary regimes are subject to much less
pressure because of the “fused power exercised by their
ruling cabinets” (474). In other words, all things being equal
when legislative and executive authority is combined, as
in parliamentary systems, governments face fewer claims
to spoils and fewer pressures for patronage. As a consequence, he concludes that parliamentary systems are likely
to have more competent and capable public services.
570 Public Administration Review • September/October 2001, Vol. 61, No. 5
This article takes issue with Riggs’ thesis and suggests
a modification of this argument. Although he may be correct when the world’s pre-eminent parliamentary and presidential regimes—those of Great Britain and the United
States—are considered, the benefits of fused powers and
the weaknesses for separated powers need not always have
this consequence. In particular, parliamentary regimes, in
which fragmented parliamentary majorities are formed by
coalitions pieced together by disparate parties representing highly segmented constituencies, may pose significant
problems for the appointment process.4 Fragmented governments that are pieced together from vastly disparate
partners may require substantial side payments in the form
of patronage to guarantee coalition formation. Indeed, strategic behavior of even the tiniest members of fragile coalitions may permit them to extract spoils and patronage bonanzas as the price for joining or remaining in a coalition
(Brams 1975; Doron 1988).
To the extent the government in a parliamentary system
comprises such a coalition, the benefits of fused powers in
the appointment process may be more illusion than reality.
Indeed, parliamentary governance may even exacerbate the
problem; the prime minister may be little more than a broker for competing interests, or may be so preoccupied with
a single dominant issue that he or she must defer to others
on less-important matters such as executive appointments.5
Under such conditions, ministers who are nominally appointed by the prime minister may, for all practical purposes, be independent, and the parties themselves may dictate their selection (Diskin 1991; Gamson 1961; Nachmias
1973,1974). The theoretical benefits of parliamentary systems, may be more apparent than real in the face of
hyperfragmentation.
Under such conditions, some features of a presidentialist,
separation-of-powers system may be functional, since this
system is designed with a high level of fragmentation in
mind. For instance, presidential systems that operate under a constitutional system of separation of powers anticipate fragmentation (“factions,” as the Federalist Papers
termed them), plan for it, and seek to minimize its abuses.6
In the United States, the Constitution institutionalizes distinct spheres of power for the three traditional branches of
government, but it also provides an elaborate set of checks
and balances and forces them to work together. Riggs is
undoubtedly correct that this system fosters cronyism and
patronage in executive appointments. But the provision for
checks and balances also requires appointments at the highest levels to be approved by the Senate under its “advice
and consent” powers.7 If the president is particularly powerful or the Senate especially weak, this process may be
little more than a formality. But historically it has not been
so, and the Senate has taken its duties seriously (Harris
1953). The process may be unwieldy, unpredictable, cum-
bersome, and at times highly partisan, but it does provide
an opportunity for scrutiny—often vigorously adversarial
public scrutiny—of prospective appointees to public service. And it forces another unit of government (and its individual members) to go on record in support of or opposition to an executive appointee.
Contrast this with appointments in a hyperfragmented
parliamentary system, where the prime minister may hold
formal but not real power of appointment. De facto power
to appoint may be held by leaders of minor parties, whose
decisions may be invisible to the public and impervious to
public opinion. In theory, the parliamentary system’s structure of accountability is clear and unambiguous: The prime
minister, who is responsible to the electorate, selects his
ministers, who are accountable to him, and in turn they
select subministerial positions in a well-established chain
of accountability. But in hyperfragmented coalitions, individual parties and not the prime minister may dictate who
the ministers and their subordinates will be. Under such a
system, the prime minister’s power may be only nominal.
Although opposition parties or back benchers might protest such actions, in the absence of a formal role in the
appointment process—such as the Senate’s advice and
consent function in presidential appointees—they lack a
forum in which to voice their concerns. Indeed, they are
likely to read about such appointments in the morning
newspapers, too late to be able to raise questions. Here,
fused powers work to the advantage of cronyism and against
responsible ministerial public-service appointments.
In the American presidentialist system, when a chief
executive nominates a particularly weak, incompetent, or
controversial person for a high government position, the
appointment is likely to be scrutinized with care and zeal
by the Senate (or its state equivalents). Even members of
the president’s own party have a real opportunity to play
an independent role in this process (Burns 1963). Although
this process has been subject to great partisan abuse, it has
the virtue of subjecting cabinet and many subcabinet and
judicial nominations to intense scrutiny and occasional
rejection. The internal Senate rules permit just one senator
to delay, if not derail, an appointment (Harris 1953, 215–
37, 356–74). Furthermore, the anticipation of such a review process leads chief executives to be careful in their
nominations—”unconformable” is a well-accepted excuse
for not putting a person’s name forward.
Contrast this with a similarly controversial appointment
by a minister in a highly fragmented coalition government
in a parliamentary system. Although those affected may
have an opportunity to voice their opinions, their concerns
are likely to be voiced in the press, not on the floor of the
legislature or in committee, and probably not before the
appointment has been formally announced. Indeed, no formal nomination and hearing process is required in most, if
not all parliamentary systems, including Israel. Under such
a system, opponents of a prospective appointment have no
formal opportunity to review and comment on it, let alone
access to a formal forum for scrutinizing the nominee and
voicing concerns as a routine part of an approval process.
In such a situation, fused powers may inhibit rather than
enhance responsible appointments. This is widely recognized to be the case in Israel, at least since the early 1990s
(Korn and Shapira 1997).
One response to this situation in Israel, and no doubt in
other fused but fragmented parliamentary systems, has been
to turn to the judiciary to challenge particularly controversial appointments.8 However, this practice is not without
problems: Judicial challenge to an executive appointment
questions the long-standing belief in the supremacy of the
parliament, and it may involve courts in a process that is
best left to political rather than legal judgment.
If an appointee or prospective appointee has misrepresented his or her qualifications for a position—say educational attainment, experiences, and the like—courts may
have little trouble intervening. Or if there are claims of
criminal wrongdoing—bribery, blackmail, extortion, and
the like—then it may also be appropriate for the courts to
nullify an appointment. However, if courts move beyond
such concerns to establish their own independent set of
criteria for appointments and then begin to act on them,
as the Israeli Supreme Court began to do in the 1990s,
judicial intervention becomes problematic. It pits the
courts against the combined strength of the legislature
and executive.
In the long run, the courts are likely to lose. The “least
dangerous branch” rarely triumphs over the combined opposition of the two other political branches.9 One might
take consolation in a failed effort with the adage, “better to
have tried and failed than never to have tried at all.” However, loss in a struggle between the political and judicial
branches is likely to have wide-ranging effects. Courts have
limited political capital, and to expend it on lost causes—
or to succeed often enough to provoke a confrontation that
cannot be won—jeopardizes not only power in one arena
of legal decision making or of one particular court, it runs
the risk of undermining the judiciary as an institution and
weakening the rule of law.10 This may be the situation in
Israel at the beginning of the new century. As the Supreme
Court extends the range of its politically charged decision
making, criticism may continue to mount from all quarters
(Gavison 1999). With the emergence of hyperfragmented
governments in the early 1990s and what Ruth Gavison
has called “rifted democracy,” the independent and highly
esteemed Israeli Supreme Court began to be called on to
overturn questionable political appointments, and on occasion it has done so. Although bold and decisive, these
decisions have increased the already substantial opposiIsraeli Experience in Comparative Perspective 571
tion to the Court in ways that some fear may jeopardize
the rule of law.11 The case studies that follow describe failures of parliamentary oversight in the appointment process, the challenges they present for the High Court, and
the subsequent problems those decisions precipitated.
Checks and Balances in
Political Appointments in Israel:
Five Case Studies
With the victory of the Likud Party in 1977, the Labor
party lost control of the Knesset for the first time since the
founding of the state in 1948. Since that time, politics have
become ever more fractious. The numbers of parties in the
Knesset and in coalitions has steadily increased, and the
process of coalition building has become an arduous task
as additional parties appear at the extremes of the political
spectrum. More important, the electorate’s growing disenchantment with the two major parties (Likud and Labor)
has decreased their seats in the Knesset and contributed to
a hyperfragmented party system. In particular, the leading
party in several governing coalitions since 1977 has not
had the commanding presence that leading parties once
had. Governing coalitions have had to be cobbled together
from partners representing a wide range of ideologically
diverse parties (Arian 1998; Nachmias and Gila 1999).
Between 1992 and 1997, the successive governments
of Prime Ministers Rabin, Peres, and Netanyahu were preoccupied with pleasing coalitions consisting of a number
of intense, single-issue parties. The case studies that follow explore some of the consequences of this development.
Although not all the actions described here can be attributed solely to hyperfragmentation, it has helped to weaken
the checks on executive appointments and the appointment
process more generally. With their overriding goal of managing the peace process, Prime Ministers Rabin and
Netanyahu (and more recently, Barak) had at times to turn
over power to make senior appointments to partner parties
in the coalition, and to hold their noses or look the other
way when ministers filled some of these positions. This
process resulted in some unquestionably abysmal appointments, which in turn led to petitions to the High Court of
Justice to review them.12 The Court overturned some of
these appointments and upheld others. In ruling on these
cases, it plunged itself into the “political thicket.”
In the following sections I briefly recount the histories
of several of the most prominent of these appointments.
This analysis reveals two weaknesses: the absence of a
workable system of checks and balances that can guard
against inappropriate appointments; and an over-reliance
on a strong judiciary to correct these failures. The former
runs the risk of undermining executive responsibility and
governmental legitimacy, and the latter, even if successful,
572 Public Administration Review • September/October 2001, Vol. 61, No. 5
runs the risk of overextending the authority of the Supreme
Court and weakening the rule of law.
The Genossar Case
The Genossar case involved Yosi Genossar, a senior
official in the General Security Service (known widely
by its initials in Hebrew, Shin Bet) who was charged
with two separate acts of wrongdoing (the Bus 300 case
and the Nafasho case) that became stumbling blocks
in his advancement in the civil service. These charges
were disregarded in the appointment process, only to
be resurrected by the High Court, which overturned
his appointments.
The Bus 300 Case
On Thursday, April 12, 1984, just south of Tel Aviv,
four Palestinian terrorists commandeered Bus 300, which
was filled with 40 rush-hour passengers on its normal run
from Tel Aviv to Ashkelon. The Israeli security forces immediately sprang into action: They stopped the bus with a
roadblock, and at dawn the next morning a trained antiterrorist squad stormed the bus and freed the passengers. In
the process, one passenger was killed and six others were
wounded. Shortly after reclaiming the bus, security officials reported that all four of the terrorists had been killed
in the action. Almost immediately this story was challenged
by a television station, which released a film showing two
of the terrorists bound and subdued. The revelation, directly contradicting the official report, precipitated a public outcry.
The Ministry of Defense eventually appointed a committee to investigate the circumstances under which the
two captured terrorists had been killed. Among those appointed to serve on the committee was Yosi Genossar, then
a senior officer in the General Security Service. After its
investigation, the committee issued a finding that no order
had been given to kill the terrorists, and responsibility for
their unauthorized killing should be placed on the soldiers
who had stormed the bus and had taken aggressive and
lightning-fast action. This version of events, however, did
not square with eyewitness accounts, and the televised
record and questions persisted, some of which were directed to the attorney general’s office.
Two years later, the attorney general issued a report
asserting that he had incontrovertible evidence that
Genossar had acted as a “Trojan Horse” on the investigating committee. As a representative of the General Security Services on the committee, the attorney general
found that Genossar had used his position to relay information about the investigation on an ongoing basis to the
Army. In turn, the Army had used this information to
construct alibis for the soldiers and to mislead investigators. Eventually the truth emerged: The terrorists were
shot after they had been subdued and all danger had
passed, and Genossar had leaked information to help those
involved avoid responsibility. The attorney general recommended bringing criminal charges against those involved, including Genossar, for their roles in the killings
and cover-up. But in June 1986, before charges could be
filed, President Chaim Herzog, citing potential threats to
national security, issued a general pardon to all those involved (Gutman 1995; Kremnitzer 1987).
The Nafasho Case
In 1979, Army officer Ishatt Nafasho was arrested and
charged with espionage. Based on a confession obtained
by officials in the General Security Service, Nafasho was
convicted by an Army court, given a dishonorable discharge, and sentenced to 18 years in prison. In 1987 he
appealed the conviction, claiming his confession had been
coerced. The Supreme Court agreed, reduced his sentence,
and reinstated him in the army at reduced rank.13 In another petition a year later and in the wake of the Bus 300
scandal, Nafasho petitioned the Supreme Court to order
the attorney general to investigate violent methods used
by the General Security Service in interrogations.14 Directed
to do so by the Court, the attorney general appointed a
commission known as the Landau Commission, after its
distinguished head, retired Supreme Court Justice Moshe
Landau.15 The Landau Commission reported finding widespread use of unnecessary force in interrogations by members of the General Security Service when questioning
suspects about terrorist and related activities. After reviewing Nafasho’s claims, the commission concluded that his
confession had been coerced and placed responsibility on
Yosi Genossar, then head of the team conducting the interrogation. Although he had not directly questioned or tortured Nafasho, the commission found he had ordered the
use of illegal force. The Landau Commission recommended
a number of far-reaching reforms to the General Security
Service, but declined to recommend bringing criminal or
other charges against Genossar, citing the potential damage it might cause to the Security Service.
In November 1986, Genossar retired from active service in the Security Service. A short time later he was offered the position of director general of the Ministry of
Housing, pending approval by the Civil Service Selection
Committee. He then went through the standard civil service review, which consists of checking prior jobs, education records, and other qualifications, and he was approved
for the position.16
Upon learning of the pending appointment, Yoel
Eisenberg, a young lawyer with no connection to the matter, exercised his right under Israel’s liberal rules of standing, which permit virtually any citizen to challenge any
action of government in court. Incensed that someone with
Genossar’s record of brutality and deception could be rewarded with such a high position in the government, 17 he
asked the Court to bar Genossar’s appointment. The High
Court did not grant his petition for a full hearing, but ordered the Civil Service Selection Committee to review
Genossar’s application once more and to consider the relevance of his role in the Bus 300 and Nafasho cases.
The Selection Committee reviewed his application and
reaffirmed its earlier decision: Genossar’s involvement in
the Nafasho and Bus 300 affairs were irrelevant to its concerns, and he was qualified for the position. A second petition was lodged before the High Court and, after a full
hearing before a panel of three justices, the Court ruled
that Genossar’s prior activities were serious enough to disqualify him from holding the position of director general
in the ministry. In a decision written by Chief Justice
Aharon Barak, the Court held that the position involves
daily contact with the public, and because “public trust is
a central and important value and should be given heavy
weight while balancing other values and interests in considering an appointment,” prior criminal record is relevant
and, in this instance, disqualifying.18 By selecting Genossar,
the Court ruled that “The government had operated under
‘extreme unreasonableness’ and the decision is afflicted
with illegality. Therefore, there is no escape from its revocation; every governmental authority can reach unreasonable decision, which can be subject to future revocation by
the Court; that is the strength of democracy that respects
the rule of law.”19 As a result, Genossar’s appointment was
rescinded and the position was filled by someone else. The
High Court’s decision, however, came under intense criticism from all segments of the Israeli political spectrum.
Nationalist groups resented it because it denied a position
to someone who had, in their opinion, served the country
well. Liberal civil liberties groups criticized the Court for
entering the “political thicket” in ways that undermined
its prestige.
The Aryeh Deri Case
In July 1992, Shas political party leader Aryeh Deri,
negotiated his party’s participation in the new coalition to
form the government assembled by Yitzak Rabin, leader
of the Labor Party, which had received the largest numbers of seats in the Knesset in the 1992 elections. Aware
that he was being investigated for allegations of appropriating government funds and that criminal charges might
be leveled against him, Deri wrote a letter to the prime
minister, setting forth the conditions for his party’s joining
the government. The letter addressed the ongoing criminal
investigation and promised that if criminal charges were
brought against him, he would voluntarily suspend himself from the government.20 The government was formed,
and Deri was appointed minister of the interior.
Israeli Experience in Comparative Perspective 573
A little over a year later, criminal charges of bribery,
violation of public trust, forgery, and theft were brought
against Deri. He was subsequently convicted and sentenced
to a term of three years in prison, which he is serving as of
this writing. Despite his letter of promise, Deri refused to
suspend himself. As a consequence, the Movement for
Quality Government petitioned the High Court, asking it
to order the prime minister to remove Deri from his post.
At the hearing, the prime minister’s lawyers claimed there
was no legal obligation requiring the removal of ministers
facing criminal charges; despite the letter and the promise,
he was not going to remove Deri. Rejecting this position,
Chief Justice Meir Shamgar, in an opinion for the High
Court, ruled that “Political considerations are legitimate
only under specific circumstances, political considerations
should be considered in light of other relevant factors such
as the seriousness of the offence. The offences that are attributed to the Minister Deri are drastically stringent and
the failure of Mr. Rabin to exercise his authority to remove
Deri from his ministerial position is extremely unreasonable.”21 The Court ordered the prime minister to suspend
Minister Deri, pending the outcome of the charges against
him. Bowing to this direct order, the prime minister requested and received Deri’s resignation, thus resolving what
might have been a confrontation of wills between the heads
of the executive and judicial branches of government. Despite Deri’s removal, the Shas Party did not bolt from the
governing coalition, nor was the peace process derailed.
However, the High Court’s decision was greeted by widespread criticism, from Shas for “persecuting” a beloved
leader, and from many liberals for its judicial over-reach
into the political process.
The Pinchasi Case
In 1992, at the same time Prime Minister Rabin appointed Deri as minister of the interior, he also appointed
another Shas Party member, Raphael Pinchasi, to deputy
minister of religious affairs. Pinchasi was a suspect in the
same criminal investigation that involved Deri and was also
accused of forgery, conspiracy, and fraud. Unlike Deri,
however, he had not written a letter promising to suspend
himself from his duties if the police wanted to bring charges
against him. Furthermore, because of his parliamentary
immunity, formal charges could not be brought against him
unless the Knesset voted to suspend his immunity. When
the Knesset refused to do so, the Movement for Good Government—Amitai—petitioned the High Court to remove
him from his ministerial position.22 Under the circumstances, the organization argued, Pinchasi could not command the public trust required of someone who handles
and dispenses public funds. Again, the prime minister’s
argued to the Court that, since there was no specific law
requiring him to suspend ministers and deputy ministers
574 Public Administration Review • September/October 2001, Vol. 61, No. 5
accused of criminal misconduct, he would not do so. After
hearing arguments, the High Court ordered that Pinchasi
be stripped of his ministerial duties, pending the outcome
of the criminal charges. In a lengthy opinion explaining its
ruling, the Court acknowledged the prime minister’s vast
discretion in appointing ministers, but emphasized this discretion must be balanced against the need for “public trust.”
It proceeded to balance these two needs in the particular
“social context,” and ruled to remove Pinchasi. In its opinion, the Court emphasized that the charges against Pinchasi
involved false reporting and deliberate acts to defraud the
state, charges that go to the “heart of public trust especially in a position that involves dispensing vast sums of
public funds”.23
The Bar-On Case
In a weekly cabinet meeting on Friday, January 10, 1997,
Benjamin Netanyahu, the newly elected Likud Party prime
minister, and Tzachi Hanegbi, his newly appointed minister of justice, announced the nomination of Jerusalem attorney Roni Bar-On as the new attorney general. They indicated they would ask the cabinet to approve the
nomination that same afternoon, an announcement that
precipitated uproar at the cabinet meeting. It was unheard
of in Israeli politics to appoint a virtual unknown as attorney general and, despite the fact they had just been named
to his cabinet, many felt that the prime minister was acting
peremptorily when he insisted the cabinet give its approval
on at the same day of announcement. Traditionally the attorney general’s appointment involved an extended and
deliberate process, during which time representatives of
the bench and bar were solicited for their opinions. Despite widespread grumbling and the staunch opposition of
some members of the cabinet, it narrowly approved the
appointment the same day it was introduced.
But this was not the end of the matter. By appointing
an inexperienced and virtually unknown lawyer, whose
record was acknowledged to be mediocre and who was
best known as a low-level party operative, the prime minister was flaunting a long-standing and deeply held tradition which requires attorneys general to be distinguished
lawyers who are “above” politics. The appointment was
greeted with intense hostility by the media, the bar, and,
more quietly, by distinguished members of the bench.24
There was a vast consensus among vocal political commentators, the bench, and the bar that the appointment
violated the long-standing tradition of appointing a distinguished lawyer with considerable experience working
in the public service and a sterling record of accomplishments. Furthermore, by tradition the attorney general is
appointed only after extensive consultations with distinguished members of the bench and bar and lawyers holding high positions in the public service.25
Allegations quickly surfaced in the media about the hasty
appointment, and the opponents of the appointment were
not impressed. Using Israel’s liberal rules of standing that
permit virtually anyone to challenge a government action,
a group of eight Knesset members immediately filed a petition to the High Court of Justice challenging the appointment. They asked for an expedited hearing and a conditional order prohibiting even a temporary appointment
pending the Court’s ruling.26 At a hearing held the next day,
opponents argued that the cabinet had been forced to act
so hastily that it had not had an opportunity to thoroughly
review the matter, and Bar-On’s prior association with the
minister of justice (Hanegbi had served his required apprenticeship as a lawyer in Bar-On’s law firm, and they
were both behind-the-scenes activists in the Likud Party)
constituted a conflict of interest. The government’s position was that Bar-On met the formal qualifications for the
position, that the Cabinet had approved, and that nothing
was amiss in the appointment other than it had ruffled the
feathers of prominent members of the bar and the media.
The Court handed down a temporary ruling almost immediately. It did not issue any findings or issue any temporary orders, but it did set a later date for a hearing on the
matter. In so doing, it asked the government to be prepared
to give its reasons for the appointment. This was a brilliant
strategic move that effectively overturned the appointment
without ruling on it. In its request for rehearing, the Court
shifted the burden of proof to the prime minister to justify
the appointment, rather than to the opponents to show why
it should not go into effect. Seeing the handwriting on the
wall and saying that he did not wish to cause himself and
the new prime minister any more embarrassment, Bar-On
resigned his position just two days after being formally
named and even before he had even had a chance to be
sworn into office.
His resignation put an end to the legal proceedings, but
not the controversy. Bar-On’s reputation was enhanced by
his quick and decisive action, and a short time later the
prime minister appointed a distinguished judge with the
requisite record to the post. But 10 days after Bar-On’s
resignation, a local television news broadcaster claimed to
have uncovered the reason for the highly unusual appointment. He claimed that Aryeh Deri, the Shas leader then
under criminal investigation, had conditioned his support
for the “Hebron agreement,” one of the most controversial
steps in the staged peace process with the Palestinians, in
exchange for Bar-On’s appointment. The clear implication
was that Deri had arranged for Bar-On to go easy on him
and other Shas Party activists whose cases were then developing with the attorney general’s office. Two days after
this announcement, Prime Minister Netanyahu called for
a police investigation of the allegations, which commenced
immediately. Eleven weeks later, on April 15, 1997, the
police forwarded to the state attorney its recommendations
that the prime minister, Justice Minister Hanegbi, and Shas
Party leader Deri all be charged with conspiring to obstruct
justice. Three days later, on April 18, the state’s attorney
(chief prosecutor) and the attorney general announced there
was insufficient evidence to warrant charges against the
prime minister and the justice minister, but that it was considering adding the charges of obstruction of justice to those
already leveled against Deri.27
Despite these developments, a growing number of commentators continued to criticize the Court for its action
in the case. Coupled with its earlier decisions, they
claimed the Court had a trend of judicial overextension
in the political process. In criticizing the court, however,
they were clear to emphasize they were not agreeing with
the prime minister—only that they believed opposition
to such appointments should be mounted in the political
rather than judicial arena. Their concern was that judicial
involvement, while perhaps doing the “right thing,” would
have the effect of stunting political debate and consideration at just the time that more robust and principled politics were called for.
The Morris Nissan–Amidar CEO Case
On August 20, 1998, Morris Nissan, a member of the
Likud Party’s central committee and a close friend of
Avigdor Lieberman, former director general of the prime
minister’s office, was nominated by the board of directors
of Amidar, the national public housing company, to serve
as its director general.28 As a legally required step in the
appointment process, Nissan submitted his résumé to the
Civil Service Selection Committee, known as the Ben-Dror
Committee (after its head, retired judge Mordechi BenDror) to review his qualifications. Among the information
he included on his résumé was a statement that he had
worked steadily from 1991–98.29 On the basis of what it
had learned from his resume and other sources, the BenDror Committee found him qualified for the position.30
Immediately after this announcement, however, a newspaper published an article revealing that Nissan had not
been candid with the committee. It revealed that 10 years
earlier, in 1989, Nissan had been involved in a traffic accident and had successfully sued for compensation for injuries he sustained. The judgment in his favor had been based
partly upon an affidavit in which he claimed he had lost
his capacity to work due to physical and psychiatric problems caused by the accident and, as a consequence, between 1989–93 he had been unable hold a job. Once it
learned of Nissan’s perjury, the Movement for Quality
Government that had been involved in challenging some
of the other appointments, petitioned the High Court of
Justice, asking it to bar his appointment.31 The High Court
Israeli Experience in Comparative Perspective 575
obliged. It ruled that Nissan should not hold the post because he had provided false information to the Court trying the accident case. In so doing, the High Court held,
Nissan had violated the public trust and confidence necessary for those holding high public positions. The Court
reasoned that “Putting one’s signature to documents whose
contents are false in order to attain personal benefits is
among those types of actions that cast a heavy shadow on
one’s personality. There is no doubt that the appointment
of a man who has perpetrated a grave act to a senior position in the public service undermines public confidence.”32
Having learned that they all knew of Nissan’s actions prior
to supporting his appointment, the Court not only criticized
Nissan for his misrepresentation, but also the public housing authorities, the prime minister (who held the housing
portfolio at the time), and the Civil Service Selection Committee, all of whom knew of but nevertheless disregarded
Nissan’s illegal behavior.33 In its opinion, the Court singled
out the Selection Committee in particular for its failure to
perform its duty as a public trustee when it approved the
appointment.34 Accordingly, the Court vacated the appointment on the basis of “unreasonableness.”
Discussion: The Limited Capacity
of the Courts
Until the Genossar case in 1992, the Israeli High Court
had never intervened in ministerial or other high-level publicservice appointments. Since then, as we have seen, it has overturned several appointments. All but one—the Nissan case—
involved Aryeh Deri or other members of the Shas Party in
one way or another. It might be tempting to downgrade the
significance of the Court’s activities on the grounds they are a
combination of two idiosyncratic factors: a handful of particularly rapacious political leaders in a new and rapidly growing populist movement who tried to exploit their new-found
opportunities at a pivotal moment in Israeli history; and the
two prime ministers’ need to go to extreme lengths to form
solid coalitions that would support their highly controversial
peace initiatives.35 Clearly, both of these conditions affected
the decisions. Shas is a new and unprecedented populist movement. Prime Minister’s Rabin and Netanyahu desperately
needed to form a coalition to support the Oslo Accords, signed
in 1993, which required subsequent Knesset approval at successive stages of their implementation. Although Shas’s leaders had always been more or less supportive of peace initiatives (and more so than other religious parties) and generally
favorable to the idea of trading land for peace, the party held
no deep views on the peace process; it was willing to go either way on the matter, depending on what it could extract
from the government in exchange for governmental support
for its religious institutions. Both Rabin and Netanyahu clearly
thought the peace process was important enough for them to
576 Public Administration Review • September/October 2001, Vol. 61, No. 5
overlook the criminality in the Shas leadership and perhaps
even to thwart the investigation into it in exchange for the
party’s support for this issue.
However, with these decisions, the Court entered the
political thicket and established clear precedents for judicial intervention on substantive grounds in future ministerial and other high executive appointments.36 Indeed, as of
this writing the Court has been asked to overturn other
lower-level appointments on the same grounds. Although
it has refused to do so, these cases involve military appointments, an area where the Court has always been deferential.37 Some commentators see the Court’s recent actions as a retreat from its earlier activism. Perhaps it is, but
it may represent the Court’s traditional deference to the
military. Whatever the explanation, there is now ample
precedent for judicial intervention and oversight in ministerial and political appointments. The High Court has
plunged itself into the business of second-guessing ministerial and high-level civil service appointments, a process
that has the potential to sharpen the division between the
political and judicial branches; in the words of Hebrew
University Law Professor Ruth Gavison (1999), it further
widens the breaches of Israel’s already “rifted democracy.”
Taken together, these cases reveal two problems in the
appointment process and the emerging role of the High
Court: They expose the weakness of the current system of
appointments, and they show that the legal process may
unwittingly hurt what should be a robust political process.
The Weakness of the Current
Appointment System
The Genossar case reveals a weakness in the appointment process for senior civil service positions—nominees
are not subject to close scrutiny and check by a body that
is accountable to the public. The Civil Service Selection
Committee apparently twice rubber stamped the housing
minister’s recommendation for Genossar’s appointment,
and later, when pressed by the Court, claimed that his prior
involvement in two criminal actions was “not relevant” to
its considerations and therefore was not considered. In the
United States and elsewhere, an appointment at this rank
would be subject to an open hearing prior to confirmation,
at which time all facts would have been made public. But
this is not the case in Israel. Despite its importance,
Genossar’s appointment was handled as a much lower civil
service appointment might be in other countries. Although
the eventual outcome vindicated those who sought integrity in public service, it was achieved at a high price, judicial oversight. In this and subsequent cases, the Court has
claimed it is capable of balancing competing considerations
in contexts as they arise.
Perhaps it can. But in so doing, the Court is substituting its own judgment for the judgments of other more
politically accountable officials. Furthermore, it can only
react and overturn a decision after the fact; it has no direct role in the earlier nomination stage. Even the most
activist of courts is still restricted to narrow “legal” reviews and cannot engage in wide-ranging considerations.
Although it is useful in curbing egregious abuses in the
appointment process, as Genossar’s appointment most
certainly was, after-the-fact judicial oversight is no substitute for robust and proactive political checks on the
appointment process, such as the power of the U.S. Senate in confirming presidential appointees.
The Ascendancy of Legal over Political
Considerations
On the surface, the High Court rulings in both the Deri
and Pinchasi cases are stories of triumph, that is, the defeat of cronyism (or worse) and the triumph of the rule of
law. Advocates of good government have reason to be
pleased with these outcomes. But to the extent that these
cases mark the substitution of narrow and formal legal criteria for more robust political judgments, they raise troubling questions. Consider, for example, the possibility that
Knesset approval of the Oslo Accords and the future of the
Israeli–Palestinian peace process might have depended on
Deri or Pinchasi holding on to their ministerial positions.38
This is a judgment that is deeply political and wholly appropriate for political leaders to make, but wholly inappropriate for a court to consider. Still, such a decision may
best be made by more than one person, not a prime minister acting alone. This suggests the need for broader review
and approval of each minister by a vote of the Knesset, in
much the same way that the U.S. Senate must confirm each
member of the President’s cabinet after careful scrutiny.39
The Problem of Hyperlegalism
Israeli politics is a study of contrasts. Its vigorous political life is ensconced in the features of a developing
society. Many of its parties are strongly rooted in a type
of pre-modern politics whose salience has markedly declined in most modern Western liberal democracies. Several parties have an ethnic base, and some have an intensely religious base by which members unquestioningly
follow the dictates of their religious leaders. Historically,
Israeli politics generally have been rooted in the features
of clientelism, corporatism, and traditionalism (Nachmias
and Rosenbloom 1978). In contrast, its judicial system
purports to be (and is widely believed to be) distinct and
separate from the political process (Edelman 1994;
Jacobson 1993). It is still characterized by the high formalism of the Continental legal process; indeed, much of
modern Israeli law, both criminal and civil, owes more to
German and French codes than to the common law ap-
proach of its last colonial master, Great Britain.40 Thus,
politics and law are widely regarded as separate and distinct realms with few points of intersection. This explains
the strong tradition of appointing a distinguished lawyer
with no history of “political” activism as attorney general, and the strong reaction, even by some members of
the prime minister’s cabinet, when this norm was breached
with the nomination of Roni Bar-On.41
Under such conditions—a traditional, clientele-based
politics on one hand, and a hyperformalist legal process
on the others—there is considerable risk in turning to the
courts for oversight of political appointments. Justices run
the risk of failing in their effort to impose a narrow, ruleof-law outlook on a rambunctious and freewheeling political process that is far removed from it and failing. Alternatively, they run the risk of succeeding, but politicizing
the legal process. In either case, judicial intervention is
fraught with difficulty.
The consequences may be worse if the Court is successful in its efforts. It runs the risk of fostering an overly
restrictive vision of political appointments that could have
unwelcome consequences. Legal judgments are restrictive and minimalist: What is not prohibited, is permitted.
Being vetted and approved by the High Court might become a determining criterion for appointment, and, in the
process, the Court could become an unwilling partner in
unacceptable appointments. The Bar-On case suggests
how this might work. In response to the controversy over
Bar-On’s nomination, Prime Minister Netanyahu immediately called upon his minister of police to vet his nominee. The minister complied by holding a press conference and declaring there was no criminal investigation
pending against Bar-On and he was not suspected of any
illegalities. The prime minister tried to use this as evidence of Bar-On’s qualifications and his own judgment.
However, none of those opposed to his appointment at
the time had claimed that Bar-On had committed criminal acts—only that he lacked a distinguished record in
law and thus was not qualified to hold such an important
legal position. Although the prime minister’s effort to use
the absence of criminal record or investigation to narrow
the range of relevant considerations failed in this case,42
the very effort to use it should serve as a warning as to
how the legal process may distort the range of relevant
considerations in the appointment process.
More generally, the Deri and Pinchasi cases suggest the
limits and pitfalls of substituting judicial for political judgment. In both cases, the High Court was ingenious in articulating the legal principle of “reasonableness “ and creative in using it when “balancing” the interest of the
government in the appointment against the public interest
in “ trustworthiness.” Yet, its rulings remain problematic.
By themselves, they appear ad hoc and somewhat idiosynIsraeli Experience in Comparative Perspective 577
cratic efforts to balance various interests; but if by some
chance this approach is embraced widely, it is not difficult
to imagine the Court fashioning an elaborate set of principles and procedures to check the “unfettered discretion”
of political appointments. In the extreme, one can imagine
a civil service-type meritocratic appointment process for
both ministers and senior political appointees. But what
makes sense for the civil service would be disastrous for
political appointments, where discretionary judgment is
essential. It runs the risk of stunting a vibrant political system and hampering effective government, even if it holds
the promise of reducing “unreasonable” appointments.
This is not to suggest that the Court has started down
the road of converting political appointments into civil service-type appointments. Indeed, in the cases reviewed here,
the High Court emphasized balancing and the need to consider the context of the appointments, meaning that it is
acutely aware of the need for flexibility and political judgment. But it is precisely for these reasons that the Court’s
decisions are problematic. They are, at the core, political
and not legal judgments. Subsequent events appear to have
borne out the wisdom of the Court: The peace process was
not halted because Deri and Pinchasi were removed from
their ministerial positions, and Deri was subsequently convicted and sentenced severely for his crimes.43 Nevertheless, if the Court continues to render such decisions, it may
not always be so fortunate.
There may be two types of unattractive consequences.
First, the courts may become politicized in ways that
threaten the rule of law. In Israel, this is a real prospect.
The Israeli Supreme Court has been at the center of controversy since the late 1980s, and creating new and needless controversies for itself is foolhardy. In a “rifted democracy” with a precarious democratic tradition and strong
corporatist, clientelist, and traditional institutions, the Court
has been the country’s leading institution in promoting liberal legal institutions, individual rights and liberties, and
the rule of law generally (Jacobson 1993). But historically
it has done so in a less than fully developed democracy.
Put bluntly, the Court may lack the political capital to pick
one more big fight, especially in an area where it is not
equipped to make a positive contribution. The Court should
reflect on the “passive virtues” of avoiding some controversies so that it may concentrate more effectively on initiatives that are more suitable to its primary functions
(Gavison 1999).
Second, even if it is successful, judicial vetting of political appointments might unwittingly undermine political accountability. Consider Prime Minister Rabin’s response to challenges of the appointments of Deri and
Pinchasi. He argued that he had no obligation to exercise
his authority and remove both Deri and Pinchasi because
the law does not require such an action. If conduct is not
578 Public Administration Review • September/October 2001, Vol. 61, No. 5
illegal, it is acceptable.44 This was also Prime Minister
Netanyahu’s response in the Bar-On affair as well.45 The
tactic did not work in either cases but if such appointments
are routinely reviewable by the Court, the danger that legal discourse will impoverish political judgment is a real
possibility (Kagan 1991; Skhlar 1964).
Checks and Balances in the Appointment
Process: A Modest Proposal
I have argued that reliance on the Israeli Supreme Court
to correct abuses in the appointment process is undesirable and counterproductive. If I am right, is there a better
solution? The answer is yes. As I have suggested earlier, I
propose the Knesset grant itself authority to review and
approve (or disapprove) appointments proposed by the
prime minister. This power would cover ministerial appointments, deputy ministers, and a variety of subministerial
appointments that are currently appointed by the prime
minister or by ministers. Although far from a panacea, such
a process would render more visible the selection of people
to offices in the government and major positions in the
public service, would provide an opportunity for public
scrutiny of nominees’ background and qualifications, and
would expand the responsibility for appointments.
One skeptical response to this might be, doesn’t the
Knesset already approve ministerial appointments? Technically, yes. But as it is currently structured, this process
does not require individual presentations, review, and opportunity for scrutiny and questioning, or an up-or-down
vote on individual appointees. Rather, at the outset of a
prime minister’s term, the names of his cabinet members
are presented en masse and are voted up (always) or down
(never) as a group. Individual additions and changes made
later are not subject to much scrutiny either. As for subcabinet positions, even the most senior positions do not
require Knesset review and approval. In short, there is insufficient oversight and no real and substantial Knesset
checks on the appointment process.
Another skeptical response might be, isn’t such “constitutional tinkering” rather far-fetched, unrealistic, and
unworkable in a parliamentary system that has other wellknown and less dramatic ways to foster accountability?
The answer to both questions is no. To an American audience, it may seem strange to propose changes to the
Constitution. Americans tend to think of their basic constitutional structure as fixed and permanent, a sort of
written version of the Rock of Gibraltar.46 This is not the
case in Israel.
Although it is a vibrant and stable democracy, Israel
has no written constitution, and discussions about the
scope and structure of a constitution are salient and under constant consideration. Israel is still in the midst of a
self-conscious process of constructing its constitutional
self. In 1992, the Knesset adopted two “Basic Laws,”
which are widely regarded as the first two steps toward a
comprehensive bill of rights (Edelman 1994, 1–30). More
important for this discussion is a 1992 law adopted in the
Knesset that provides for direct election of the prime minister. This change was expected to significantly alter the
traditional parliamentary concept of the prime minister’s
office (Allon 1995; Doron 1996), but was short-lived. It
was used in just two elections, those of Prime Ministers
Netanyahu and Barak, and was widely judged to be a failure. It did not allow for the development of a more presidential-like prime minister; it did not stop the erosion of
party power—if anything it increased rather than decreased fragmentation among parties and political factions, and antagonism between the prime minister and
the Knesset. Widely judged to be a failure, this method
of selecting the prime minister was repealed in early 2000,
and the former system of selection was restored in time
for the 2000 elections.
This failed experiment has not put an end to other efforts to alter the balance of power among political units.
Chief Justice Aharon Barak continues his long-standing
campaign to establish a formal power of judicial review.
And, there are serious efforts under way to alter the balance between the executive and legislature by strengthening the staff and committee structure of the Knesset to allow its members, especially back benchers and members
of opposition parties, to undertake legislative initiates on
their own (Hazan 1998). Finally, there is serious discussion of replacing the proportional representation and party
list system of parliamentary elections with a constituencybased, single-member district system (Walfenson 1968).
These are all realistic possibilities. Indeed, the idea of a
written constitution has preoccupied a large group of practical scholars and politicians for years, and there are any
number of working groups developing position papers on
the feasibility and design of the constitution (Barak 1992;
Elazar 1990; Kretzmer 1990). The Ministry of Justice has
a sheaf of drafts of various Basic Laws that are ready to be
introduced if and when a government makes this issue a
priority. In light of all this, a proposal for more power sharing between the executive and legislation with respect to
the appointment process and a corresponding diminution
of judicial power in the process is realistic.
One obvious and important argument against an “advice and consent” function for the legislature is that Israel
has a parliamentary form of government (not a presidential system), and the vertical system of ministerial responsibility, if implemented, is sufficient to guard against weak
appointments. Recall Fred Riggs’s assertion that, all things
considered, parliamentary systems will produce better quality appointees than presidentialist systems because there
are clearer and stronger forms of accountability (Riggs
1991). But this argument is questionable, if not altogether
wrong, for hyperfragmented parliamentary systems. If fragmentation reflects deep and enduring cleavages in society
and political life and not just the temporary vagaries of
party divisions, as it does in Israel, then it is reasonable to
take this fact into consideration. My proposal does just that.
If the existing processes fail to produce adequate oversight
of executive appointments, and if this failure draws the
High Court deep into a process for which it lacks the competence and threatens both its legitimacy and the rule of
law, then my modest proposal to provide for a more vigorous oversight function in the Knesset is plausible. Indeed,
it reflects and builds on the American experience and theories put forward in the Federalist Papers.47 Taking social
and political fragmentation as a given, the theory of checks
and balances spreads political power so that it is difficult
for one political branch to act without the approval of the
other. The advice-and-consent requirement represents one
such provision. It seeks to check presidential appointments
by requiring Senate consent.
While some have argued that this provision means only
that the president must respectfully listen to “advice,” history has not supported this argument. As it has developed,
the confirmation process has made senators visible, vocal,
and accountable partners in the appointment process.
Though the Senate is admittedly reactive and not proactive in all this—it responds to nominations made by the
president and does not put forward its own nominees—its
power is nonetheless real and has consequences. It does
not rubber stamp or ratify after-the-fact appointments made
by the president, but gives advice and grants (or withholds)
its consent on nominations. It regularly refuses to confirm
presidential appointment, and, because individual senators
may be held accountable to their electorate for their positions, the president cannot always count on the support of
even his closest supporters in his own party.
The Senate’s power to confirm also has a powerful anticipatory effect. Knowing that his appointees must past
muster with the Senate affects whom the president will
nominate—he is reluctant to spend limited political capital fighting unnecessary battles. Finally, a separate and
deliberate confirmation process provides opportunity for
widespread scrutiny and public debate of executive nominations. As we have seen, in Israel judicial scrutiny performs only some of these functions. Although it can check
some appointments, the Court, by its very nature, is reactive, narrowly focused, and not particularly public. Most
often (though not always) its rulings occur after an appointment has been made and, once brought before the Court,
the issue is limited by rules of evidence. Although such
confining rules governing legal discourse are important in
focusing on normal legal issues, they are likely to prove
Israeli Experience in Comparative Perspective 579
inadequate for considering wide-ranging concerns and
trade-offs that are part of political decision making, and
thus they are inferior to scrutiny in a political forum, which
permits a wider range of considerations.
In his extensive writing on the subject, David
Rosenbloom has shown how, in the American context, the
separation of powers has had a direct impact on each of
the three branches of government (Rosenbloom 1983a,
1983b). Administrative bodies reflect features of the legislature and judiciary as well as the executive. At times, courts
act like legislatures and make laws, and like executives
oversee implementation of these laws. If Rosenbloom’s
thesis is generalized, one might expect this to occur in systems with a truncated version of separation of powers, that
is, ones with fused executive and legislative powers but
with an independent judiciary. This might account for the
efforts by the Israeli High Court to put its imprint on the
executive-appointment process. If Rosenbloom’s argument
is restated as a general proposition, then some degree of
influence is likely to be inevitable. However, it need not be
an endorsement for exclusive reliance on judicial oversight
of appointments since another implication of his analysis
is that legislatures can flex their “executive” powers as well.
My proposal draws on this implication of his argument.
I recognize this suggestion runs counter to much of the
literature on the virtues of fused powers in parliamentary
systems. But as long as the Israeli political process remains
so fragmented—and acute observers view this as something of a permanent condition—then the benefits of prime
ministerial accountability remain more illusory than real,
and a stronger and more independent Knesset is a tenable,
if not highly desirable, idea. Furthermore, in Israel, as in
other parliamentary systems, there has been a slow but
steady trend toward enhancing the power of the legislature. The Knesset is slowly developing a stronger committee system (Hazan 1998), and increasing its staff, and proposals for a constituency-based (rather than a list-based)
electoral system are gaining strength. In a number of other
long-established parliamentary systems, legislatures are
also asserting a desire for greater independence. Even in
Great Britain, home of the mother of all parliaments, there
has been a concerted if not successful effort to enhance the
powers of the Parliament (Woodhouse 1994). Indeed, one
of the objectives of this effort has been to assure greater
ministerial responsibility by strengthening the oversight
powers of members of parliament through stronger select
committees (Woodhouse 1994, 177–217).
Although all of these efforts fall far short of the powers
possessed by the U.S. Congress, they do represent a widespread (if not worldwide trend) toward greater autonomy
and power for legislatures vis-à-vis executives in all areas
580 Public Administration Review • September/October 2001, Vol. 61, No. 5
of governance, including powers of appointments. In 1992
Israel adopted a provision for the direct election of the prime
minister. The establishment of a direct electoral base for
the chief executive, apart from his authority as the leader
of the parliamentary majority, has important implications
for the legislature. It suggests the value of strengthening
the autonomy of the Knesset as an institution apart from
the prime minister. A more robust consent role for the
Knesset in major appointments is consistent with this idea.
It is likely this idea would also be acceptable to the Supreme Court. Although it has been accused of being an
aggressively activist Court, in fact the Court has turned
several controversial issues back to the Knesset, threatening to issue dramatic rulings only if the Knesset refuses to
address the matter first. For instance, in at least two highly
charged areas involving confrontations between liberal legal principles and strongly held beliefs of ultra-orthodox
religious groups, the Court has attempted to sidestep the
issues by delaying a ruling pending an opportunity for the
Knesset to enact explicit policies on the matters.48 It is likely
that if the Knesset developed a more robust mechanism
for overseeing ministerial and other senior civil service
appointments, the Court would be more than willing to
retreat from this field.
Conclusion
What would be the consequences of this modest proposal? I have argued that it would not be radical, as it is
consistent with a number of changes already under way in
Israel. Certainly, it would not prevent all weak and inappropriate appointments. But requiring the Knesset to review and vote on ministerial and other senior appointments
individually would place the process on the public agenda,
providing opponents an opportunity to voice their concerns
before (rather than after) appointment. And it would require the prime minister to publicly present and defend his
appointments in a way he is not required to do now. This
suggestion is neither a recipe for success nor a panacea for
improving public service, but if adopted, it is likely to be a
modest step toward making the appointment process more
open, more visible, and more responsible.
Acknowledgments
I want to express my gratitude to Shevah Weiss, former speaker
of the Knesset, and Ariyeh Zohar of the prime minister’s office,
for their careful comments on an earlier draft of this article, and
to Bruce Cain and Nelson Polsby for hosting me at the Institute
of Governmental Studies at the University of California at Berkeley, during a crucial stage of work on this project.
Notes
11. The U.S. Constitution, Article II, Section II provides that
the president:
Shall have Power, by and with the Advice and Consent of
the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with
the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of
the supreme Court, and all other Officers of the United States,
whose Appointments are not herein otherwise provided for,
and which shall be established by Law. But the Congress
may by Law vest the Appointments of such inferior Officers, as they think proper, in the President alone, in the Courts
of Law, or in the heads of Departments.
The standard assessment of this provision, though first published near 50 years ago, remains. (Harris 1953).
12. Some of the qualifications of the executive positions are
statutorily defined. There is a process of vetting nominees
for these qualifications and for other provisions, which
guards against conflict of interest.
13. Riggs (1991) coined the term “presidentialist systems,” and
he distinguishes it from presidential systems. Because some
parliamentary regimes also elect presidents as heads of state,
they may be called presidential, to distinguish them from
the American system, which he calls presidentialist.
14. A more robust challenge to Riggs’ thesis would be to contrast high cronyism during the long period of one-party domination of parliamentary politics in Israel from its founding
until the 1970s, with the low cronyism in the multiparty
coalition governments of Scandinavia in the 1980s and
1990s. Despite the fused powers and presumed benefits of
the parliamentary system, pressures for patronage, cronyism,
spoils, and the like can be intense, and may be stronger in
parliamentary than in presidentialist systems (see Sprinzak
[1986]). For a sustained analysis of “protektzia,” the preferential treatment of friends and friends of friends, see Danet
(1989). For favoritism in appointments to the public service
in “developing” societies, see Huntington (1968) and Riggs
(1964).
15. Israeli politics in the early 1990s is a good example of this.
The governing coalition in the Knesset comprised a group
of several parties, most of which had single or limited set of
interests. The peace process was so important to the dominant coalition partner and to Prime Ministers Rabin and Peres
that they virtually ceded policy making and appointments
in most other areas to the smaller partner parties in their
coalitions. Some of these parties were indifferent to the peace
process and, as a consequence, they were wildly successful
in pursuing their interests in exchange for support for the
peace process. (For instance, the Shas Party’s support in
exchange for government support of their religious institutions and a willingness on the part of the prime minister to
overlook criminal wrongdoing of some of their leaders.)
16. Consider the Federalist Papers, which were written to defend a constitutional system of separate powers that would
anticipate the existence of and minimize the mischief of
political factions. See especially Federalist, no. 54.
17. Article II, section II of the United States Constitution (see
note 1).
18. Discussions of parliamentary and presidential systems tend
to equate them with fused and separated powers. This is
somewhat misleading, as the real difference is between two
and three separate branches. All democracies have or aspire
to have a separate judicial branch.
19. Some national courts are very powerful, but when they are,
so too are the other branches. The classic statement warning the judiciary not to overextend its powers comes from
Alexander Bickel (1962). In the American context, see the
classic article by Robert Dahl (1957) and Gerald Rosenberg
(1991, 9–36, 336–43).
10. In the American context, the classic warning about judicial
overextension of power is Alexander Bickel’s classic, The
Least Dangerous Branch (1962). It provides a penetrating
analysis of the sources and limits of powers of the American Supreme Court. One of Bickel’s lasting contributions
to judicial craftsmanship is his warning against direct judicial confrontation with the other branches of government.
His goal was not to promote a weak judiciary, but to suggest that the “least dangerous branch” of government can
maintain considerable power only if it is careful to use its
powers wisely and selectively. To this end, he advocated
judicial reliance on the “passive virtues” in order to avoid
political confrontation with other more powerful branches
of government. He was concerned with judicial overreach—
that is, with courts trying to provide legal solutions to political problems and, in so doing, squandering their limited
political capital on confrontations they cannot win. This
warning was made within the context of judicial review by
the Supreme Court in the United States, but it has immediate relevance wherever courts are called on to confront the
political judgments of other branches of government. The
Israeli equivalent of Bikel’s warning is Ruth Gavison (1999).
11. The Israeli Supreme Court has immense power and, until
the late 1980s, had unquestionable respect among the population (Barzilai, Yuchtman-Ya’ar, and Segal 1993). It continues to be highly respected, but its actions have generated
substantial criticism from various segments of society in
recent years. Religious groups oppose its rulings that have
kept places of entertainment open on Shabbat; security-conscious people have opposed its rulings challenging some
security matters; civil libertarians criticize its timidity in
protecting civil rights; and academics criticize its balancing
approach as failing to protect civil liberties. Ironically, the
source of its most important power—its power to sit as the
High Court of Justice and to hear virtually any type of petition against the government (in scope, the vast array of ad-
Israeli Experience in Comparative Perspective 581
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
ministrative law questions in the American judicial system)—is a colonial law adopted by the British during the
Mandate. Universal British colonial policy was to staff courts
of first instance with indigenous officials on the theory that
“natives” could be trusted to resolve conflicts among themselves, but colonial officials reserved the right to hear appeals and so staffed the highest appellate court with its own
officers. Not trusting the natives to decide native claims
against the colonial administration, colonial law required
those complaints against the government to petition directly
to this high appellate court sitting as the “High Court of
Justice.” The Israeli Supreme Court retains this jurisdiction:
It sits as a Supreme Court to hear appeals, as well as a court
of first instance, and it is called the High Court of Justice to
hear petitions against the government.
When sitting as the High Court of Justice, rules of standing
are liberal—just about anyone can challenge any act of government.
Nafasho v. The Army General Attorney (41(ii) P.D.
631[1987]).
Nafasho v. The Government General Attorney (42(iii) P.D.
425[1988]).
Commission of Inquiry into the Methods of Investigation of
the General Security Service Regarding Hostile Terrorist
Activity (1987).
Under Israeli law (Civil Service Act 1959, Sections 12 and
23, and Government Cooperation Act 1975), all high-ranking public-service positions must be reviewed by a selection committee. Civil service law has established two types
of committees: The first, established in 1960, reviews the
qualifications of and issues recommendations on nominees
for 35 high civil service positions, including the position of
director general prior to a vote by the cabinet. The second
committee, established in 1994 (headed by retired judge
Mordechi Ben-Dror), reviews qualifications for nominees
to positions on boards of directors of government corporations. In addition to these committees, the government decided in 1997 to establish a third committee—an advisory
committee—which is charged with reviewing nominees for
the seven highly ranked civil service positions that had been
excluded from the other selection review committees (director of the army, the head of the police, the head of the
security service, the head of the intelligence, the head of the
prison system, the head of the Federal Reserve Bank, and
the general attorney).
Eisenberg v. Minister of Housing (47 (ii) P.D. 229[1992]).
Eisenberg v. Minister of Housing, 232
Eisenberg v. Minister of Housing, 274
See “Rabin Discloses Shas Leader’s Letter of Intent,” Jerusalem Post, Tuesday July 7, 1992.
The Movement for Quality Government v. Government of
Israel (47 (v) P.D. 404[1993])
“Amitai,” Citizens for Clean Government v. The Prime Minister of Israel (47 (v) P.D. 441[1993].
582 Public Administration Review • September/October 2001, Vol. 61, No. 5
23. Amitai v. Prime Minister, 445.
24. See The State Attorney Report: The Investigation of Roni
Bar-On’s Appointment as the Government General Attorney—Findings and Conclusions, April 20,1997, in Hebrew.
25. Since then, Hanegbi has been formally accused by the police with taking bribes while in office and using his position
to obstruct justice, although as of this writing no formal
charges have been brought.
26. H.C. Bagatz 234/97, Ophir Pines v. Prime Minister of Israel (not yet published).
27. See note 23.
28. See the discussion of this case by Dan Izenberg. Courts Order Nissan to Leave Amidar, Jerusalem Post, July 7, 1999.
29. On July 24, 1994, after the Genossar case the government
established a new selection committee headed by a distinguish retired judge Justice Mordechi Ben-Dror (the BenDror Commission) to formulate standard criteria for political public-service appointments that do not require tenders.
See The Commission Report For Formulations of New Regulations and Criteria for Public Service Appointments, October 1995. But even this act suggests over-reliance on the
courts. The government sought to legitimize new procedures,
in part by having the committee headed by a retired judge.
30. See The Government Cooperations Act (1975), Article III,
Section 16.
31. H.C. Bagatz 932/1999, The Movement for Quality Government v. Justice Ben-Dror, Chair of Selection Committee.
32. Ibid.18.
33. Ibid.19.
34. Ibid.16.
35. Since the last of these cases, Aryeh Deri has been convicted of fraud, bribery, forgery, and misuse of public funds
and sentenced to four years in prison. After his conviction
he did resign from his ministerial position in the Likud
government, but he continued to sit in the Knesset. In the
1999 elections, Shas Party, whose core constituents are
largely poor Jewish immigrants from North Africa, made
a remarkable showing at the polls, increasing its number
of seats in the Knesset from 10 to 17. Although convicted
a year before, Deri was sentenced to four years in prison
just as the election campaign got under way. His conviction and sentence helped Shas in the election. The sole campaign issue for the Shas Party was that “Deri is innocent”
and the “Courts are corrupt.” This campaign was successful. Shas gained seven seats in the legislature and emerged
as the third-largest political party in the new Knesset. Notwithstanding campaign promises not to do business with
the criminal elements in the Shas Party, the new Labor
Prime Minister, Ehud Barak, brought Shas into the government, conditioned upon Deri’s resignation from the
Knesset and from his leadership position in the party, and
upon Deri’s promise to withdraw from an active role in
the party. As of this writing, Deri remains a major figure
in his party, although he has exhausted his appeals and is
about to begin serving his prison term.
36. If the Court had intervened to overturn an appointment
because of procedural irregularities in the appointment process or because an appointee had misrepresented his qualifications or did not meet prescribed qualifications, no one
would have been surprised, since this is the normal stuff
of courts.
37. The Court declined to hear the petition against Erez’s appointment to the post of commander of the navy’s elite commando unit because he had shot a bound terrorist while serving in Lebanon. The judges noted that Erez was operating
under conditions of “necessary defense” that relieved him
from any criminal responsibility under the law. In the Court’s
judgment, the chief of staff’s decision to appoint Erez as
head of the navy commando unit was “reasonable” and thus
the Court had no basis for overturning it. The Court drew a
line for itself and has reserved the right to block controversial appointment decisions. The Court’s admission in the
Erez case that it would be improper to substitute its judgment for that of the Navy begs the question as to why it has
been willing to substitute its judgments in other cases. See
Jerusalem Post June 14,1999, and Bagatz 2888/1999, Ami
Holander v. The Government General Attorney.
38. Those familiar with the Israeli political scene know this is
not far-fetched or hypothetical. Shas has narrow and intense
interests and is flexible on the peace process. There is little
doubt that Shas could go either way on the peace process
depending on how a government helps it on issues it feels
strongly about (namely, receiving financial support for its
institutions). There is ample evidence for this: between 1992
and 1996, Shas supported the peace efforts of the Rabin and
Peres governments, but in the 1996 elections it shifted its
support to the Likud candidate, whose campaign almost
exclusively emphasized opposition to Labor’s peace plan.
The party did not hide the fact that its choice was based on
a calculation that it would receive more financial support
from a Likud government in the 1996 elections; it had no
problem rejoining a Labor government, which was committed to reviving the peace process.
39. Appointments of cabinet ministers are formally made by
the prime minister, and must be approved by the Knesset.
Details of this process have varied slightly over time, but in
recent years the process is as follows: At the outset of a new
administration, the entire cabinet-designate is assembled and
ministerial appointments are announced and approved, and
then submitted as a group to the Knesset. Additional appointments of positions for ministers that arise later in an
administration, either through turnover or through completion of the appointment process, are typically announced at
a cabinet meeting and then introduced to the Knesset for its
approval. Invariably, candidates receive Knesset approval
because, at a minimum, they receive support from members
of all parties in the majority coalition, and thus a majority
of all Knesset members. By law, Knesset rejection of a min-
40.
41.
42.
43.
44.
45.
46.
47.
48.
isterial nomination is the equivalent of a no-confidence vote
in the prime minister, and the government falls. The Knesset
may also remove a minister by a majority of 70 (of the 120
members of the Knesset). This process is preceded by deliberations of the Knesset Committee, which must vote by
majority to remove the minister. In the case of such a majority vote, before bringing the recommendation to the
Knesset, the Knesset Committee must give the minister an
opportunity to respond to its recommendation (see Basic
Law Government, section 3, 35). Deputy ministers are appointed by the ministers, but also require the approval of
the prime minister (see Basic Law Government, section 37).
As a practical matter, ministers have great freedom from
the prime minister in naming their own deputies. A deputy
minister resumes his work as soon as the cabinet announces
his nomination to the Knesset. The Knesset is unable to reject the deputy minister nomination.
Some may argue that since the 1980s, there has been a growing decline in formalism in the Israeli law and a nonformalist
approach is taking place (see Mautner 1993).
See Roni Bar-On, note 24.
The classic study showing how legal discourse narrows and
fragments complex political matters is Scheingold 1974, 39–
61.
As of this writing, he has begun serving his three-year prison
sentence.
Amitai v. Prime Minister of Israel (see note 33).
See the discussion of this tactic by Allan Shapiro (1997).
The American Constitution has changed over the years, but
not much in comparison with the constitutions of other liberal democracies, where entirely new constitutions with radically different government structures have been adopted. In
contrast, the American Constitution has been amended only
a handful of times, no major structural changes have ever
been introduced into it, and movements to call for a new
constitutional convention have never gotten off the ground.
Undoubtedly, one reason for this stability is that the U.S.
Constitution has proven to be flexible enough, through judicial interpretation, so that pressures for major changes
through amendments or a new constitution have never developed. Although people have proposed scrapping the statebased system of representation in the U.S. Senate in favor
of a population-based system, or abolishing federalism or
the separation of powers, such proposals, while interesting
as thought experiments, are only taken seriously by crackpots. One reason for the infrequency of amendments is that
the United States has a robust and evolving “unwritten”
constitution. See Thomas Grey (1988).
See Federalist Papers, no. 54
See H.C. Bagatz 5016/96, Lior Horeve v. the Minister of
Transportation.
Israeli Experience in Comparative Perspective 583
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