In the midst of all the rumpus about the proposed outline for changing the method by which court judges and justices are selected in Israel, let us first be clear about what that method is today and what changes are being proposed.
The outline was first put forward by Brig.-Gen. (res.) Dedi Simhi and Yizhar Shai, the former science and technology minister in the Naftali Bennett/Yair Lapid so-called “government of change.” Both are fathers who lost a son fighting Hamas terrorists on October 7, 2023. This outline was adopted by Justice Minister Yariv Levin and Foreign Minister Gideon Sa’ar, and made public last Thursday, as a compromise proposal, to try and resolve the current constitutional crisis over the issue of selecting justices to the Supreme Court.
Presenting the outline as a compromise raises the question: a compromise between whom? It is certainly not a compromise between the coalition and the opposition.
From having heard both Simhi and Shai on panels of various TV channels, I would characterize Simhi as a moderate right-winger, and Shai as a centrist. Levin and Sa’ar are both hardcore right-wingers, with Sa’ar being a little more liberal in his general demeanor.
On the night between December 15 and 16, 2022, two weeks before Netanyahu’s all-right government was sworn in, and when Sa’ar was still serving as justice minister in the “government of change,” I watched, on Knesset TV, Sa’ar delivering a four-hour filibuster on an amendment to Basic-Law: The Government, and Levin presiding over an empty plenum as deputy Speaker from the opposition.
The occasion developed into a fascinating dialogue between the two on legal issues, which demonstrated the fact that they understood each other’s positions and at least used the same terms of reference. It is thus not surprising to find them, now serving in the same government, working out a compromise.
IN WHAT way does the proposed outline change the current situation?
First of all, regarding the makeup of the nine-member committee for the selection of judges and justices: Currently there are three Supreme Court justices in the committee and it is proposed that three remain, though these justices will no longer have veto power over the selection of any particular candidate.
Furthermore, since, at the moment, new Supreme Court justices must be selected by at least seven committee members, in the new committee only five members will be required, which means that there will be a theoretical possibility that a new member of the Supreme Court will be selected without the support of any of the members of the Supreme Court on the committee.
The two lawyers on the current committee who represent the Israel Bar Association (and frequently both represent either the coalition of the opposition), will be replaced by another two lawyers, one of whom will be appointed by the coalition and the other by the opposition.
The justice minister, who will remain the chairperson of the committee, and an additional government minister will be members of the committee, on behalf of the coalition.
Finally, as is currently the case, two MKs will be members of the committee – one from the coalition and one from the opposition. The change here is that even though today one of the two MKs in the committee might be a member of the opposition, this is not a legal requirement.
A further benefit to the opposition is that among those supporting any candidate to be selected to the Supreme Court, there must be at least one representative of the opposition: either the MK or the lawyer.
ONE OF the main reasons that most of the opposition today is inclined to oppose the proposal is because the proposed system will politicize the selection process. I think that this argument is hypocritical because the current system is already highly political. Even today, new justices are not selected solely on the basis of their professional qualifications but largely on the basis of their being considered liberal or conservative in their judicial approach.
The complication that may arise is that part of the political Right is no longer satisfied with mildly conservative justices and wants “hardcore conservatives” who are known to hold extreme right-wing positions. Until now, no agreement has been reached on the issue of the committee for the selection of judges and justices between the coalition and the opposition. Levin insists that one of his two candidates for the Supreme Court – Rafi Biton from Sapir College in the Negev, and Avi’ad Bakshi, head of the legal department of the Kohelet Policy Forum – be selected.
Though officially the opposition to these two figures is that neither has any judicial experience or any significant academic achievements, in fact the opposition to the two is political: both support the government’s judicial reform/revolution and participated in its formulation.
Biton also advocates a highly permissive interpretation of international law regarding the open-fire policy, which could get Israel into even more trouble, vis-à-vis various international judicial instances.
I DO NOT think that “the policitization of the system” is a reason to object to the new outline. On the contrary, it is time to admit that the system is highly political – and recognize this fact formally.
Though many would prefer a system based solely on quality and merits, perhaps we should concentrate on making sure that the qualifications demanded from candidates be applied, so that they will not be compromised for political reasons, and that various forms of corruption are not allowed to contaminate the selection process.
Incidentally, the leader of the Democrats, Yair Golan, has expressed opposition to the outline because he believes that the opposition should concentrate on bringing the government down, not on seeking compromises with it. I do not believe this is practicable.
However, I am worried that the new system, if approved, will only be implemented after the elections to the 26th Knesset in October 2026.
What will happen until then? Levin has already announced that he will abide by the ruling of the High Court of Justice and will not prevent the acting president of the Supreme Court – the liberal Yitzhak Amit – from being elected as the permanent president this Thursday.
However, he apparently does not plan to participate in the vote and has announced on several occasions that he will not cooperate with Amit.
Furthermore, we do not know whether Levin will enable the committee to select the three justices missing on the current bench of the Supreme Court and the dozens of judges missing in district courts and magistrates courts, all of which is causing extreme delays and inefficiencies in the functioning of the court system.
The writer worked in the Knesset for many years as a researcher, and has published extensively both journalistic and academic articles on current affairs and Israeli politics. Her most recent book, Israel’s Knesset Members – A Comparative Study of an Undefined Job, was published by Routledge.