In a clear and sharp judgment, a three-member panel of the Supreme Court (presided over by Justice Yael Willner, joined by Justices Ofer Grosskopf and Alex Stein) ruled that Justice Minister Yariv Levin must exercise his statutory authority, convene the Judicial Selection Committee, and put to a vote the appointment of the president of the Supreme Court. It is a straightforward matter that should have been done a year ago. As it turns out, this is indeed the minister’s “duty” under the law, and the law must be upheld. The simplicity stems from basic principles: the government and its ministers are subject to the law (just like the citizens of Israel). The government and ministers cannot violate the law or defy court rulings (again, just like the citizens).
This needs to be underscored, particularly in light of the justice minister’s fiery response to the ruling: “An order that contravenes explicit law... issued under severe conflict of interest... a forcible takeover of the Judicial Selection Committee and an unlawful usurpation of the minister’s powers.”
However, a close reading of the ruling reveals that it is, in fact, the justice minister who is acting unlawfully. The minister is the one who has forcefully assumed control of the committee and has refused to appoint a chief justice of the Supreme Court for an entire year. The minister has altered the rules because they do not suit him, and he is acting without authority and thwarting the appointment of a central institutional figure in Israel. Conflict of interest, undue influence, and illegality – all correct, but the accusations are made in the wrong direction.
Willner wrote, for instance:
“The Minister’s policy, according to which the President [chief justice] of the Supreme Court will not be selected if broad consensus on the appointment is not reached, alters the decision-making rule established by the legislature, and the Minister is not authorized to do so.”
Before we get to the judgment, here is a brief recap of the previous chapters in the saga of the Supreme Court presidency: For nearly a year, the Supreme Court has been operating without an actual chief justice. The appointment of a chief justice requires a simple majority of the Judicial Selection Committee members (five members out of nine), unlike the appointment of a new Supreme Court justice, which demands a majority of seven out of nine committee members. Traditionally, the appointment of the chief justice has adhered to the principle of seniority: selecting the most senior judge on the Supreme Court. This practice is designed to ensure judicial independence, maintain the stability of the court, and prevent the politicization of the appointment process.
Minister Yariv Levin
MINISTER YARIV Levin, however, has refused to bring the appointment of a chief justice to a vote because the majority wants to follow the principle of seniority and appoint Justice Yitzhak Amit as the next chief justice. Meanwhile, Justice Uzi Vogelman, who served as deputy to former president Esther Hayut, is serving as acting president and is slated to retire in early October 2024. This is an unprecedented situation in the history of the Supreme Court.
In this matter, the law is quite simple, and Willner analyzed it thoroughly in the ruling: Section 7(a) of the Courts Law mandates that “ (if) the Minister of Justice sees that a justice is to be appointed, he shall put notice in Rashumot (Israel’s official gazette) and convene the committee.”
The petitioners contended that if the minister does not convene the committee for this purpose, he exceeds his authority, even misuses it. The attorney-general’s position was that the minister is obligated to convene the committee; otherwise, this would effectively grant him “veto” power, enabling him to obstruct the committee’s work.
Minister Levin, who received separate representation, argued before the Supreme Court that, as the committee chair, he possesses discretion regarding the committee’s convening, the identity of the candidates to be presented for a vote, and the timing of such a vote.
The court seriously examined the authority of the minister of justice and concurred that the minister has broad discretion. The justices noted numerous factors the minister may consider before deciding to convene the committee to appoint the chief justice of the Supreme Court or other justices. They acknowledged that Levin’s desire to make appointments with broad consensus is indeed a worthy one.
Stein, for example, wrote that the minister represents the public at large in judicial appointment proceedings and is therefore entitled to consider “diverse” factors, such as ideological and value-driven considerations alongside professional ones: “All of this, of course, provided that the minister, as a public trustee, is guided by the common good... the minister may take into account the aspiration for appointments to be made with broad consensus – a public, value-based, and ideological consideration of the [highest] order.”
The court not only interprets Levin’s discretion generously but also respects it (contrary to the minister’s reaction to the ruling): “We respected the minister’s discretion in the exercise of his authority under Section 7(a) of the Law, and accordingly, we postponed the decision in this case for a significant period of time, allowing him to exhaust efforts to realize his laudable vision of bringing forward appointments for a president and justices to the Supreme Court based on broad consensus… However, despite the passage of time and the failure to reach an agreement, the minister repeatedly emphasized… that his policy has been and remains that no president of the Supreme Court shall be appointed as long as broad consensus is not reached in the committee regarding the appointment of the President.”
Thus, the justice minister altered the rules of the game mid-play. Sound familiar? He determined that there would be no president without consensus, and despite this “forceful” approach, the court demonstrated considerable patience. It was a year that was anything but inconsequential.
GIVEN THE minister’s seemingly broad discretion, why did the justices intervene? Because of the time. Because the situation had reached an untenable limit. Because it appeared the justices understood that the minister would not convene the committee if his preferred candidate was not selected. And already, this contravenes the law. The court held that the minister gave undue weight to the criterion of consensus without considering the necessity and importance of appointing a president of the Supreme Court – the fact that the president leads the judicial system, serves as its spokesperson, ensures its independence, and is responsible for its proper functioning. These considerations mandate the appointment of a president, and a failure to do so for a year is simply untenable.
“As it would be inconceivable for the speaker of the Knesset to refrain, indefinitely, from performing his duties… and not convene the Knesset for the election of a president of the State [of Israel], merely due to the aspiration… that a broad consensus elect the President... and as it would be inconceivable for the President of the State to refrain, indefinitely, from performing his duties under the law, and not appoint a Knesset member to form a government, merely because of the aspiration… that the government enjoys broad support.”
Thus, even if the objective is worthy, not all means to achieve it are lawful.
A final spin
And a final word of “spin” suggesting that “they”– the judges – are in a “conflict of interest” because this is a discussion on the appointment of judges and the issue of the future president of “their” court. On this matter, Willner writes:
“The interest in appointing a president of the Supreme Court, who, as mentioned, also serves as the head of the judicial authority, is not a private interest of this court, its justices, or any of them, but an interest of the public at large… The appointment of the President of the Supreme Court is essential for the proper functioning of the judiciary and the law enforcement system in the State of Israel, and the proper functioning of these systems is a public interest of the highest order.”
Perhaps it would have been better not to raise the “conflict of interest” argument in these times. At present, the justice minister, finance minister, and minister of national security are acting contrary to the binding opinions of the attorney-general on several issues. These days, it has been ruled that there is a legal impediment to the prime minister selecting the Civil Service Commissioner.
Yet, a government decision to the contrary was still made. All these instances add up to a deliberate and forceful subversion of the rule of law. Perhaps, rather than launching yet another attack on the judiciary, it would have been wiser to respect the ruling of the highest judicial authority in the state and pave the way for a proper appointment of the individual who will head it.
In any case, the path ahead for the next president will be laden with extraordinarily complex challenges. It is time for the white smoke to emerge from the committee room and for the new term to commence, ushering in a period that will significantly determine the fate of the rule of law and democracy in Israel.
The writer is an expert in constitutional law and vice president for research at the Israel Democracy Institute.