High Court orders justice minister to explain why he’s not filling its vacant seats

Levin has refused to appoint new Supreme Court justices or a new court president for over seven months, due to ‘extraneous considerations,’ petitioners allege

Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter

Justice Minister Yariv Levin arrives at a Likud faction meeting in the Knesset, February 5, 2024. (Yonatan Sindel/Flash90)
Justice Minister Yariv Levin arrives at a Likud faction meeting in the Knesset, February 5, 2024. (Yonatan Sindel/Flash90)

The High Court of Justice issued an interim order against Justice Minister Yariv Levin on Thursday, ordering him to explain why he should not bring to a vote the appointment of two new Supreme Court justices and a Supreme Court president at the Judicial Selection Committee.

The order means the state, and in this case, Levin, needs to convince the court why it should not accept the petitions requesting that it order him to allow a vote at the committee on the open positions on the court.

At the same time, the High Court said it was issuing the interim order, which switches the burden of proof from the petitioner to the respondent, “for reasons of efficiency in dealing with the petition” only, and without it expressing “any position on the essence of the issue.”

Levin has until June 23 to respond and a hearing has been set for the petition on July 2.

Former court president Esther Hayut retired in October of last year along with Justice Anat Baron. Levin has refused to discuss candidates for the open positions or bring new appointments to a vote, and at the same time has refused to allow a new president to be voted in.

Levin initially refused to convene the Judicial Selection Committee at all after entering his post, since the coalition is in the minority on the panel and due to his stated desire to change the composition of the panel through legislation to give the government control over it, before making appointments.

Supreme Court Justice Uzi Vogelman at a court hearing on postponing the nationwide municipal elections scheduled for the end of January until February 27, at the Supreme Court in Jerusalem, on December 31, 2023. (Chaim Goldberg/Flash90)

A bill to this effect became a key component of the government’s controversial judicial overhaul agenda to reduce the power of the judiciary, but it was ultimately halted due to massive political and public pressure.

Petitions to the High Court against Levin’s refusal to convene the committee forced him to back down, and numerous appointments to lower courts have been made in recent months as a result, but the justice minister has refused to countenance appointments to the Supreme Court.

Just on Thursday, he told committee members that candidates “without agreement” would not be considered, essentially giving himself a veto over all Supreme Court appointments.

In February, the Movement for Quality Government in Israel filed a petition to the High Court asking it to order Levin to call votes on the appointments.

The petition argues that his refusal to do so violates his constitutional obligation to fill the positions and is motivated by “inappropriate and political considerations designed to damage the independence of the judiciary and Israel’s system of checks and balances on government authority.”

The petition points out Levin’s earlier legislative program to assert government control over the judiciary and asserts that he continues to cling to this agenda, and that it is the motivating factor in his refusal to appoint new justices to the Supreme Court.

The government and coalition have only three guaranteed votes on the Judicial Selection Committee, including that of Levin, who serves as the panel’s chair and can decide whether or not to hold votes on judicial candidates.

Appointments to the Supreme Court require seven out of nine votes on the committee. The appointment of a president likely needs just a simple majority, although it has never been defined in law since the seniority system has been used until now.

The Judicial Selection Committee meets for the first time in over 18 months in Jerusalem, on November 16, 2023. (GPO)

“The continuation of [Levin’s] decision to continue with the regime coup plan he devised, and not to convene the committee for the purpose of electing the president and justices of the Supreme Court, is motivated by extraneous considerations and lack of good faith,” states the petition.

“As is well known, where a party has been entrusted with administrative authority to appoint an official — this authority needs to be exercised faithfully, reasonably, in a manner that serves public interests, objectively, without extraneous considerations, and fairly, while protecting the dignity and rights of the official,” the petition contends.

“It seems that the justice minister is determined to continue the political takeover of the judicial system, and continues to act without concern, in bad faith, and out of extraneous considerations, aimed at undermining public trust in the justice system,” said Attorney Hiddai Negev, head of the Policy and Legislation Department at the Movement for Quality Government.

Earlier, it emerged that Levin had proposed to appoint Supreme Court Justice Yosef Elron as president of the court, despite him not being the next most senior justice on the court, during a meeting of the Judicial Selection Committee on Thursday.

The position of president has been vacant since Hayut stepped down and Justice Uzi Vogelman has served as acting president ever since, a situation unprecedented in the history of the court.

The position of president has always been selected by the principle of seniority, meaning the justice with the most years on the court has been automatically appointed to head the court, but Levin opposes this system and seeks to have a conservative appointed, to push the court in a more conservative direction.

Supreme Court justices Yosef Elron and Isaac Amit at a court hearing for petitions against the dismissal of Israel Postal Company chairman Mishael Vaknin, September 7, 2023. (Yonatan Sindel/Flash90)

According to sources close to the committee, Yesh Atid MK Karin Elhrar, the opposition’s representative on the panel, raised the issue during Thursday’s hearing, pointing out that Vogelman himself is due to retire in October.

Settlements and National Missions Minister Orit Struck was then said to chastise Elharar, accusing the Supreme Court of exceeding the boundaries of its authority, and was followed by Levin berating the court for its intervention in Knesset legislation.

Levin then said he wouldn’t bring the selection of a president to a vote “without agreement,” meaning without the unanimous agreement of all nine members of the committee.

He proposed that Elron, a staunch conservative, serve as president for a year until he too reaches the age of retirement, but did not say what would happen after that.

Elron put himself forward for the post of president back in August last year, in an unprecedented step for a Supreme Court justice to challenge the seniority tradition.

Since at least five of the six committee members on the panel who do not represent the government or coalition oppose abolishing the seniority system, and appointing a president requires a majority on the panel, the discussion went no further.

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