ISRAEL AT WAR - DAY 138

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Coalition to bring judicial appointments bill for final votes before Passover

Party heads say rest of legislative package of radical overhaul of judiciary will wait until after recess, call on opposition to use time for ‘negotiations’

Coalition party leaders meet with Prime Minister Benjamin Netanyahu in Jerusalem, January 22, 2023. (Courtesy: Likud)
Coalition party leaders meet with Prime Minister Benjamin Netanyahu in Jerusalem, January 22, 2023. (Courtesy: Likud)

Coalition party leaders said they intend to push through legislation on the functioning of the Judicial Selection Committee for the Supreme Court before the Knesset breaks for Passover at the beginning of next month, and then resume the advancement of the rest of the legislative package that makes up the government’s plans to radically overhaul the judiciary after the recess, urging the opposition to use the time for “negotiations.”

In a statement late Sunday, after hours of convening to discuss ways to modify the drastic judicial overhaul legislation amid mass demonstrations and civil disobedience against the measures, the coalition leaders headed by Prime Minister Benjamin Netanyahu said they will prepare the judicial appointments bill for its second and third plenum readings to become law, and will reconvene on the rest of the legislation to limit the powers of the High Court of Justice in mid-April.

The coalition heads, according to the statement, decided to move forward with the bill based on modifications offered by MK Simcha Rothman on Sunday night, whereby not all appointments to the Supreme Court would be overtly political. Under his proposal, any new governing coalition would have complete control over the first two appointments to the Supreme Court that open up during its tenure, but require the support of at least one opposition MK and one judge on the committee in order to make further appointments to the court.

Rothman made fresh amendments to his proposal early on Monday, however, and was presiding over discussions on his amended proposal during the day.

Rothman’s suggestion was the first publicly declared effort by the coalition to seemingly moderate its radical reforms, which have been widely denounced by the opposition and numerous legal scholars and jurists as a power grab.

The original legislation that was approved in its first reading in the Knesset plenum, by contrast, gives the coalition total control over all judicial appointments without the need for support from either the opposition or the judiciary.

Currently, Israel’s nine-member Judicial Selection Committee is split between four politicians and five professional representatives — three judges and two members of the Israel Bar Association.

MK Simcha Rothman, Head of the Constitution Committee, at a committee meeting at the Knesset in Jerusalem on March 5, 2023. (Erik Marmor/Flash90)

According to Rothman’s proposed changes late Sunday, the committee would be expanded from nine to 11 members, six of them from the governing majority. It would comprise three government ministers from three different parties; three coalition MKs from three different parties; two opposition MKs from two different parties; and three Supreme Court justices, including the court president.

Appointments would be made through a simple majority of six out of 11 members for the first two appointments to the Supreme Court in a Knesset’s term. After those appointments, the majority needed would remain six out of 11 but among those six at least one member of the opposition and one judge would need to support the nomination in order for it to be approved.

In effect, this would mean that two coalition-backed justices could be appointed with ease, and any remaining appointments could be consensus candidates.

Members of the Israel Bar Association will no longer have seats on the committee, according to the proposal, and the veto power judges have over appointments to the Supreme Court will also be affected, since seven out of the nine members must support an appointment. Proponents of the change have objected to the veto judges have over appointments to the court, although the coalition also enjoys a similar veto.

In explaining the rationale behind the new proposal, Rothman, who chairs the Knesset Constitution, Law and Justice Committee where the judicial overhaul legislation is being prepared, said it was designed to have “as many people as possible in Israel feel that the Supreme Court is theirs,” and to enable “the people to choose the judges” but at the same time “to prevent a political force from taking control of the [Supreme] Court.”

The coalition was also set to keep advancing bills tailored to Netanyahu — barring the attorney general and the High Court from compelling him to step down due to conflict of interest, and allowing him to keep funds received from his late cousin as a gift which the court has ruled he has to return — and to Shas party leader Aryeh Deri, allowing the thrice-convicted politician to be reinstated as a minister despite a court ruling prohibiting this.

The coalition party heads announced late Sunday that the proposal “that will be submitted for approval will bring about a historic and fundamental change in the Judicial Selection Committee.”

They also called “on the opposition to take advantage of the month-long recess period, during which the legislative procedures in the Knesset cannot be held, to hold real negotiations to reach an understanding regarding the articles of legislation that will be submitted for approval after the recess.”

“We extend a hand to everyone who really cares about unity and the desire to reach an agreed-upon compromise,” they said.

The opposition has refused to negotiate with the government due to the latter’s insistence on not freezing the legislative process, leading to a standoff. Under pressure, and amid intense public criticism, the coalition has over the past few days been considering unilaterally how to modify its radical reform package even as it prepares its current legislation for its final passage into law within two weeks.

Yair Lapid, Benny Gantz, Merav Michaeli and Avigdor Liberman meet in Jerusalem on March 13, 2023 to coordinate opposition strategy to judicial overhaul. (Yesh Atid)

Rothman’s proposal earlier was swiftly rejected by the Labor party, as well as campaign groups against the judicial overhaul, while a leading constitutional law professor argued that it was deceptive.

Prof. Yaniv Roznai, a constitutional scholar at Reichman University, expressed heavy skepticism about Rothman’s idea, arguing that it lacked adequate safeguards and was disingenuous. He noted that the coalition is also planning legislation that would allow it to name the Supreme Court president, changing the existing situation in which the presidency is based on seniority.

“What about if in the first committee meeting, they appoint a Supreme Court president? Will they be the representative of the judiciary [on the selection committee]? Why do you think we are gullible?” Roznai tweeted.

Should the current Knesset last its entire four-year duration, as many as four Supreme Court justices would reach the current mandatory age of retirement of 70. Removing a judge from office would require the vote of nine out of 11 committee members.

Asked Roznai: “What happens if they reduce the mandatory retirement age to 65? Will they appoint more judges with a six out of 11 majority?”

Prof. Yaniv Roznai at a Times of Israel Live event in Jerusalem’s Israel Democracy Institute, December 15, 2022. (Oded Antman/IDI)

For appointments to the lower courts, appointments would need the support of seven out of the 11 committee members. The judicial members of the committee would also be different and include the president of the Supreme Court along with the president of a district court to be chosen by a panel of district court presidents, and a president of a magistrate’s court to be chosen by a panel of magistrate court presidents.

This would ensure that a governing coalition could not appoint judges to the district and magistrate’s courts by itself, Rothman said earlier.

“I think that everyone who has followed the [committee] hearings sees that there is an attempt here to put people’s minds at ease,” said Rothman.

“We cannot live with the reality of a court that holds so much power, which replicates itself, and which produces clones of its worldview,” he continued, however, defending his goal of appointing Supreme Court judges without the input of the judiciary in the process.

“With these arrangements, we have managed to square the circle so that the people can choose the judges, while on the other hand addressing concerns about the abuse of political power to take over the court,” he said.

Labor party leader Merav Michaeli rejected Rothman’s proposal, saying that for the coalition to appoint judges to the Supreme Court by itself would be akin to “bringing an idol into the Temple,” adding that “it’s Hungary and Poland on steroids,” and calling on the rest of the opposition to oppose the proposal as well.

Yesh Atid chairman Yair Lapid and National Unity chairman Benny Gantz did not immediately respond to the proposal.

A statement put out in the name of “the leaders of opposition to the dictatorship” said that Rothman was “offering to carry out a terror attack inside the Supreme Court,” and that it constituted “bringing in servile judges [to the court] who are obligated to the government and not the law.”

The bill to change the composition of the Judicial Selection Committee is just one of several bills designed to limit the power of the judiciary and curtail the oversight of legal officials within the mechanisms of government.

Another critical bill, which has also passed its first reading, would drastically reduce the High Court’s scope for judicial review over Knesset legislation, in part by demanding a very high bar to strike down laws — a panel of all 15 High Court judges present and a majority of 80 percent.

The coalition’s goal is to restrain what it says is the court’s judicial activism by adding conservative justices to the bench who will be less inclined, on an ideological level, to intervene in Knesset legislation.

Hundreds of thousands of Israelis have taken to the streets over the past two months to protest the sweeping overhaul. Business leaders, Nobel-winning economists, and prominent security officials have spoken out against it, some military reservists have stopped reporting for duty, and even some of Israel’s closest allies, including the US, have urged Netanyahu to slow down.

Rothman’s proposal was the coalition’s first public, unilateral attempt to respond to protesters, its own politicians, and legal experts who have demanded changes in response to either the content of the reforms or the social polarization created by them.

Last week, coalition leaders swiftly rejected a separate judicial reform proposal from President Isaac Herzog that would deny the government two of its key policy points: seizing control over the appointment of judges and creating a mechanism for the government to easily override judicial review.

Herzog has warned that Israel faces “real civil war” over the issue, and pleaded with the government to abandon its current legislation.

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