High Court tells Levin to quickly start process for appointing new court president
Top court says there is ‘no escape’ from filling the position after justice minister was given enough time to seek ‘broad consensus’ on the appointment, but failed
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
The High Court of Justice on Tuesday told Justice Minister Yariv Levin to bring the appointment of a new Supreme Court president and two new Supreme Court justices to a vote in the Judicial Selection Committee, and to begin preparations for such a vote “in the coming days.”
The court noted critically that it had given Levin a “substantial amount of time” to find “broad agreement” for the appointment of a new president, which the minister has said is crucial during a time of war, but that since those efforts had failed “there is no escape” from convening the committee and making the appointments on the basis of the majorities required under law: five out of nine committee member votes for a Supreme Court president and seven out of nine for a justice.
The decision, which is not yet a final ruling, means that Levin’s 11-month effort to reshape the court in a hardline conservative direction through the use of his powers as minister appears to be on the verge of defeat.
While the decision is not yet binding, the three justices presiding over the case told Levin that a ruling would be issued at the beginning of the new legal calendar year beginning September 6, “should such a thing be necessary.”
A source close to Levin condemned the decision, saying the court had a conflict of interest in ruling on the issue, and accused it of unlawfully removing control of the Judicial Selection Committee from the minister’s authority.
A spokesman for Levin declined to say whether the minister would heed the order and convene the committee, although the Kan public broadcaster reported that he would probably do so but boycott the likely next Supreme Court president, Isaac Amit.
Such a situation could significantly gum up the workings of the judiciary, since the justice minister and Supreme Court president need to agree on key issues, such as the appointment of Magistrate’s Court and District Court presidents. This could also lead to further High Court involvement in the practical functioning of the judiciary.
In continuation of his judicial overhaul agenda to assert greater governmental control over the judiciary, Levin has refused to appoint a new Supreme Court president ever since former president Esther Hayut retired in October last year, owing to his desire to have hardline conservative Justice Yosef Elron take the reins of Israel’s top court.
Appointing Elron as chief justice would overturn the principle of seniority, which has been in place since the founding of the court, whereby the most senior justice on the court is made president. Acting Supreme Court President Uzi Vogelman has refused to countenance the move.
Since there is a liberal majority on the Judicial Selection Committee, Levin has refused to call a vote on a new president, contending that the decision required “broad consensus” in a time of war.
Levin has also refused to appoint replacements for Hayut and Justice Anat Baron, who both retired in October.
The Supreme Court has never been without a president for more than a few weeks, and even then, in 1965, it was due to technical reasons.
Tuesday’s court decision came in response to a petition by the Movement for Quality Government in Israel, a liberal watchdog group, which argued that Levin’s position unlawfully granted him a veto over Supreme Court appointments.
Of the three justices who ruled unanimously in Tuesday’s decision, Yael Wilner and Alex Stein are conservatives and Ofer Grosskopf a liberal. Vogelman and Justice Daphne Barak-Erez were excluded from the panel since, as members of the Judicial Selection Committee, they had a conflict of interest.
On Monday, Levin formally submitted a compromise proposal to the High Court with two options. The first would have seen Elron appointed as court president for a year until he retires, to be followed by Amit.
The second option was for Amit to be given the presidency, in exchange for one of two extremely conservative legal academics, who were sources of inspiration for Levin’s judicial overhaul agenda, to be made a Supreme Court justice.
Vogelman refused both proposals, resulting in the current impasse.
Writing in their decision on Tuesday, the three justices said that they had granted Levin a substantial amount of time to come to the “broad agreement” he said he sought over the appointments.
“Now that it has become clear that this has not helped, it is clear and obvious that there is no escape from the the decision-making mechanism” for appointing Supreme Court justices and its president,” the court continued.
“We express hope that he [Levin] will act in the coming days in order to put this understanding into action, by using the authority given to him in Section 7(a) of the Courts Law to set in motion this decision-making mechanism.”
A source close to Levin said in response that the High Court’s decision constituted a “conflict of interests” and was made “without authority,” adding that “they are judges over themselves.”
Added the source: “They are practically taking total control of the Judicial Selection Committee, refusing to accept anyone who is not ‘theirs,’ and are just proving how right the [judicial overhaul] reform is.”
Far-right Finance Minister Bezalel Smotrich described the decision as “coercive and divisive,” and said the justices “arrogantly reject any compromise proposal and ignore the majority of the people’s loss of trust in the judicial system” which he claimed “only proves the need for reforms in the judicial system.”
And Communications Minister Shlomo Karhi went even further, calling on Levin to disobey the High Court’s ruling, something which would essentially create a constitutional crisis between the executive and the judiciary.
“Even if such a delusional judgment is issued, the justice minister must act in accordance with his powers according to law and not listen to those who try to tamper with its foundations, and certainly not resign from his position. We must be strong and determined in the face of the hostile takeover attempt by the unelected over Israeli democracy and law,” Karhi tweeted.
Opposition leaders welcomed the ruling, however, with Yesh Atid leader Yair Lapid denouncing Levin for what he said was the justice minister’s efforts to continue with a “regime coup” and “eradicate Israeli democracy.”
New Hope chief Gideon Sa’ar stated, “I never thought it was justified to deviate from the unwritten rule of ‘seniority’ — it prevents politicization of the Supreme Court.”
He added, however, that a compromise over new appointments to the Supreme Court bench would be appropriate, and said that “no catastrophe would occur” if one of Levin’s hardline candidates would be appointed as a justice.
Yisrael Beytenu leader Avigdor Liberman slammed Levin, saying, “Instead of focusing during wartime on issues that unite the people and highlight what we have in common, the government focuses exclusively on controversial issues that threaten to break apart Israeli society, such as the Temple Mount and legal reform.”
Sam Sokol contributed to this report.
