Court tells Levin, judicial selection panel to compromise on Supreme Court president
Justices appear to accept claim that the justice minister’s discretion to hold up appointment of a new court president is not unlimited
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
The High Court of Justice instructed Justice Minister Yariv Levin to find a compromise solution with the Judicial Selection Committee over his refusal to appoint a new Supreme Court president without total unanimity, in light of the fact that the court has been without a permanent president for an unprecedented nine months.
Although the court appeared to accept in part Levin’s position that he has some discretion over when to make the appointment, the order to reach a compromise suggested that the court does not believe that discretion is unlimited.
Reading the decision after a hearing in court on petitions against Levin, Justice Yael Wilner said that such a compromise process was necessary due to the “the complexity and sensitivity of the issue” and insisted that “everyone must make an effort” to reach a broad agreement.
The court instructed Levin to update it on the progress of this dialogue by August 8.
“Sometimes a bad compromise is better than a good ruling, and this is the situation,” quipped Justice Alex Stein after the decision was read out in court.
The Movement for Quality Government (MFQG) welcomed the decision, saying it amounted to the court accepting its position, and that the justices were asserting through the short timeline they had given Levin “that the current situation cannot continue,” and that this was “the last opportunity” for a mutually-agreed solution before the court rules on the merits of the case.
Levin said in response that he would “continue to make an effort to reach agreements as I have done the entire time,” and said that the way to achieve that was “through a real willingness to accept that which is different and come to compromises, and not through unilateral steps and judicial orders.”
Levin, as chairman of the Judicial Selection Committee, which selects the Supreme Court president, has refused to appoint a replacement for former president Esther Hayut ever since she retired in October.
The justice minister has argued that such an appointment at present needs unanimity on the committee since Israel is currently at war and needs national unity. Even prior to the war, however, Levin sought to avoid the traditional method of appointing the most senior justice on the court as president, in order to allow him to appoint a conservative candidate of his own choosing.
His current refusal to appoint a court president is widely seen as being part of his effort to assert greater government control over the court — which was at the heart of the government’s highly controversial judicial overhaul effort last year, now largely defunct amid the war.
The Movement for Quality Government argued in its petition that Levin has no authority as chairman of the Judicial Selection Committee to refrain from calling a vote on a new president, and further contended that the 1981 Interpretation Law requires those holding statutory authority to exercise that authority “with appropriate speed.”
The watchdog also argued that Levin’s demand for “broad agreement” meant that he had de facto granted himself a veto over the appointment, and that any candidate he did not personally approve of could not get elected even if there was a majority on the committee for their appointment.
Earlier this week, the Israel Hayom daily reported that President Isaac Herzog has been mediating between Levin and acting Supreme Court President Justice Uzi Vogelman in a bid to break the impasse over the issue.
The president of the Supreme Court has extensive powers, including an automatic spot on the Judicial Selection Committee; the power to nominate candidates for judicial office which other members, apart from the justice minister, cannot do by themselves; the power to consent, or not, to ministerial appointments in the judiciary; and running the Supreme Court itself.
A critical part of Levin’s judicial overhaul agenda involved appointing an ally as president of the court in order to guide it in a conservative direction and have greater control over appointments, although Levin was unable to force through the legislative changes necessary to achieve that goal.
During the course of Thursday’s hearing, the three justices presiding over the case, none of whom are members of the Judicial Selection Committee, were generally skeptical of Levin’s assertion that he has unlimited discretion over the timing of when the committee can be convened to appoint a new president.
But the justices were also not impressed by the Movement for Quality Government’s claim that the justice minister has no discretion at all over when to convene the committee, arguing that such a position would essentially turn the minister into a glorified secretary.
“We are in July 2024, many months since this letter [expressing Levin’s opinion] was issued and many months since the start of war,” Justice Wilner pointed out to Levin’s legal representative Attorney Zion Amir, implying that it was past time to make the appointment.
Amir explained that Levin’s argument is that the new president of the court must be a unifier in the model of Otto von Bismarck who unified Germany, and not one to “surrender to pressures and societal trends, and subjugate the executive branch to the judicial branch, which is what the petition [against Levin] does.”
Wilner responded skeptically, saying Levin’s position amounted to granting him a veto over the appointment of a president “while in our system there is no veto.”
And Justice Ofer Grosskopf also challenged Levin’s interpretation of the Law for the Courts, which the minister contends gives him discretion as to whether or not to fill a position on the Supreme Court, despite the law stating that when a position on the courts opens up the minister must convene the committee and deliberate on candidates.
“Is it possible there can be doubt that there is a need to appoint a president [of the Supreme Court]?” demanded Grosskopf.
Attorney Aner Helman, representing the Attorney General’s Office, which did not back Levin’s position, insisted during his remarks that the “substantive discretion” over whether or not to appoint a president lay with the Judicial Selection Committee itself and not the minister.
And although he conceded the minister had some discretion over when to convene the committee in order to obtain broad consensus over the appointment of a president, Hellman said that discretion was not unlimited.
“We have long passed the stage of ‘appropriate speed.’ The minister is acting without appropriate speed,” insisted Hellman.
MFQG attorney Tomer Naor attempted to push back against the notion that the justice minister has any discretion over when a president can be appointed and under what circumstances, but Wilner referred to previous court decisions which ruled to the contrary.
“I am looking for a justification for taking away the power which the justice minister has always had. When I don’t see that in the legislative history, and when I see a law which gave him power to convene the committee it’s appropriate to leave him with that substantive power,” said Justice Stein.
“We’re talking about delaying urgent appointments… The minister cannot be turned into an actor with a veto, and that is the current situation,” retorted Naor, insisting that Levin has, by refusing to call a vote on a new president, “elevated the executive branch above the other branches of government on the committee.”
