Publication
The ruling concerning the appointment process of the Civil Service Commissioner (hereinafter: the Commissioner) is among the boldest and most prominent judgments (second, perhaps, only to the Deri-Pinhasi doctrine[1]) rendered by the Supreme Court in the field of judicial review of senior appointments in the government and public service (hereinafter: the judgment).[2] By a majority opinion, the Supreme Court ruled that the Commissioner appointment process in the format of an advisory appointments committee as approved by the government is illegal, and that it must establish a permanent process possessing characteristics of a competitive procedure. The ruling has a direct and dramatic impact on the anticipated appointment process of the next Civil Service Commissioner; it constitutes a significant development in administrative law addressing the process of appointing senior officials in public administration; and it continues to deepen the “trench warfare”[3] between the Supreme Court and the government, which since 2023 has swept the State of Israel into one of the most turbulent periods in its history.
With requisite caution, it appears to me that around these three axes—(a) the axis of appointing the next Commissioner, (b) the axis of administrative doctrine, and (c) the axis of constitutional confrontation—the judgment revolves, and through them the positions of the majority and minority within it can be understood. In the following lines, I will describe how they are reflected through the judges’ positions and how each side of the dispute between the majority judges and the minority judge weighed the risks inherent in them differently.
In the world of basketball, the term “hero-ball” describes a style of play where a single player attempts to rescue the team from a loss single-handedly through adventurous play, particularly in decisive moments. Players prone to hero-ball are typically stars crowned with talent and glory, characterized by complete faith in their ability to save the day. The integration of the various axes I will describe in this note will lead me to the conclusion that in its efforts to restrain a government that, in its view, endangers the foundations of public administration (and broadly speaking, democracy) in Israel, the Supreme Court decided to “play hero-ball.” As any avid basketball fan knows, a hero-ball strategy is a gamble. It may buy you eternal glory, but over time statistics prove that this is not a winning strategy.
The article is also available on the official ICON-S-IL website, with the full list of sources at the bottom of the article.
