A protracted standoff between the Supreme Court and Justice Minister Yariv Levin reached its peak this week, with no resolution in sight.
The High Court of Justice on Tuesday urged Levin to convene the Judicial Selection Committee he chairs to vote on the appointment of a new Supreme Court president (Israel’s chief justice) and two new justices, while the acting president, Justice Uzi Fogelman, rejected a Levin “compromise proposal” that he presented at the beginning of the week.
Before the war against Hamas put the government’s judicial reform package on the back burner, Levin had made no secret of his plan to change the composition of the Supreme Court. And since the retirement of chief justice Esther Hayut and justice Anat Baron in October 2023, he has declined to convene the Judicial Selection Committee.
Knowing that three of the 15-member bench must be replaced when Fogelman retires in October, Levin unveiled what he called a compromise proposal in a letter to the High Court. Under the proposal, Yosef Elron – a conservative justice – would replace Fogelman until Elron’s own retirement in September 2025.
While the move goes against the principle of “seniority,” which has been in place since the establishment of the court, Levin would agree to the committee’s appointment of Justice Yitzhak Amit – a liberal who is currently the longest-serving judge on the bench – next year, in exchange for the appointment of two conservative jurists who had inspired the government’s judicial reform package.
In response, Fogelman said Levin’s proposal for Elron to serve as chief justice for a year was legally problematic because it violated the seniority system, and he reiterated his insistence that “the Selection Committee be convened as soon as possible, as required by the law.”
For his part, Levin has countered that the seniority system is anarchic and the government in power should have the ability to determine who serves as president of the court, as is the case in the United States and other democracies. But as noted by Amit Bachar, chairman of the Israel Bar Association, the reason that the High Court was petitioned by the Movement for Quality in Government in the first place was because Levin had refused to convene the Judicial Selection Committee.
Amit Bachar's Response
“He [Levin] says: ‘Until there is the candidate I want, I will not convene the committee.’ This is illegal, and that’s why the petition was filed,” Bachar said. “This is not a compromise.”
Bachar agreed with the High Court that the Judicial Selection Committee must be convened to vote for a new president and new justices. “The only method that disconnects the election of a Supreme Court president from politicization... is the seniority system, with all its advantages and disadvantages,” he said. “The majority in the committee has to choose a judge to be president. The Supreme Court cannot function without a permanent president.”
The nine-member Judicial Selection Committee comprises Levin (Likud), National Missions Minister Orit Strock (Religious Zionist Party), MK Yitzhak Kreuzer (Otzma Yehudit), MK Karine Elharrar (Yesh Atid), three High Court justices, and two members of the Israel Bar Association. As The Jerusalem Post’s political correspondent Eliav Breuer points out, the majority of the committee currently supports the appointment of a liberal judge.
Elharrar posted on X that Levin’s proposal was “bending the rules of the game just because he [Levin] doesn’t like them,” adding that the chief justice should be elected by the Judicial Selection Committee with a regular majority – “and not based on the minister’s whims.”
Yair Golan, leader of the Democrats party, has argued that the real intention behind the year-long appointment of Elron was to have him be responsible for appointing the members of a state commission to investigate the October 7 Hamas massacre.
In their non-binding ruling on Tuesday, the three justices presiding over the case – Yael Wilner, Alex Stein, and Ofer Grosskopf – said they would issue a final ruling in September, if necessary. In order for it not to be necessary, Levin should convene the Judicial Selection Committee as required by the High Court and let justice take its course. The system may indeed need to be changed, as Levin advocates, but now is not the time.