Judicial appointments law is Levin’s victory in fight to handpick ideological hardliners
Despite several staunch conservatives on the Supreme Court, the justice minister long sought to install an advocate of uncompromising judicial restraint on the bench; now he can
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
The legislation passed on Thursday remaking Israel’s judicial appointments process, if implemented as intended after the next general election, will likely have a far-reaching and long-term impact on Israel’s judiciary and the legal system in general.
While Justice Minister Yariv Levin, the law’s primary proponent, hailed the measure for increasing the government’s ability to appoint the judges it favors, in particular to the Supreme Court, the opposition lambasted the legislation for what it claimed would be the politicization of the judicial appointments process and thus the judiciary itself.
But much of the opposition and other critics have gone further, arguing that the right-wing, religious political alliance that dominates the Israeli political landscape has in fact been effective in recent years in replacing a liberal, activist majority on the Supreme Court with a conservative majority preferring judicial restraint over activism.
Levin’s real goal, his critics claim, was therefore not to suffice merely with the appointment of conservatives to the court, but to install hardline ideologues who would almost always oppose judicial intervention in Knesset legislation and government action.
Does this claim hold water?
Levin’s motivation
Levin’s central stated purpose in passing the legislation was to counter what he said was a situation in which the government has too little say in appointing judges, in particular to the Supreme Court, and thus that there was too little “diversity” in the judiciary.
To that end, the new law removes all influence of the judiciary over Supreme Court appointments and allows politicians to handpick ideological hardliners for the top court by virtue of a deadlock-breaking mechanism if the coalition and opposition fail to agree on appointments to the top court.
Speaking in the Knesset Constitution, Law and Justice Committee in January when he presented the bill, Levin claimed that when the right-wing, religious political alliance wins elections, it can only manage to get three out of nine members onto the Judicial Selection Committee that makes all judicial appointments in Israel, and when that alliance loses, it can only get one member on the committee.
This situation, Levin argued in the committee hearing, has created a reality in which “massive [sectors of the] public have been excluded from the [legal] system.
“There is no diversity,” he claimed, adding that a further result is that the three justices on the Judicial Selection Committee are also tilted against the right-wing, religious political coalition and the electorate they represent.
“As someone who represents a government elected by two and a half million citizens… I don’t feel that there is one judge on the Supreme Court who represents me, who expresses the positions I believe in and which a massive [sector of the] public believes in,” said Levin.
Levin argued that there are no Supreme Court judges who represent, to use his words, his “legal world-view” — that is, conservative judges who believe in judicial restraint and who would only strike down Knesset legislation or government action in the most extreme of circumstances.
But is this really the case?
The current ideological balance on the court
There are currently 12 justices on the Supreme Court, with three spots open on the bench following the retirement of three judges over the last 18 months.
Levin has refused to call a vote in the Judicial Selection Committee to fill those positions, and sources close to him have said he will refuse to do so for the remainder of this Knesset term until the new legislation comes into effect.
But of the 12 serving justices, at least six are considered by mainstream legal analysts to be either moderate or hardline conservatives. Another five are considered to be reliably, if not staunchly liberal, while one justice, Yechiel Kasher, appears to lean conservative. Kasher was backed for the court in 2022 by then-justice minister Gideon Sa’ar and then-interior minister Ayelet Shaked, both of whom hold strongly conservative legal ideologies.
By some measures, then, there is already a conservative majority on the Supreme Court. True, some of the conservative justices, such as Yael Wilner and Alex Stein, are relatively moderate and have intervened over key government legislation and decisions.
Both those justices ruled that Levin did not have the authority to refuse to elect a new Supreme Court president, as he did for close to 16 months, and ordered him to convene the Judicial Selection Committee on four occasions between September 2024 and January this year to make the appointment.
Yet others are decidedly hardline in their conservative ideology, such as Noam Sohlberg, David Mintz and Yosef Elron.
Indeed, some of the most controversial decisions made by the Supreme Court in its capacity as the High Court of Justice against the current government would, if adjudicated today, have the opposite outcome.
So for instance, the government’s reasonableness law — which barred all courts from using the judicial standard of reasonableness to review government and ministerial decisions — was struck down by the High Court in January 2024 in an eight to seven decision.
But of the justices who supported striking down the law, three have now retired, while all seven who voted against the decision, including Wilner and Stein, remain on the court.
Similarly, the majority on the court which ruled that same month that the government’s prime ministerial incapacitation law can only take effect after the next elections, also no longer exists.
The court’s decision against the start date of that law — advanced by the coalition to ensure that the attorney general or the High Court would not order Prime Minister Benjamin Netanyahu to recuse himself from office — was made in a six-to-five vote. But those three judges who retired were also part of this court majority.
Furthermore, since 2018, of the 10 Supreme Court justices appointed to the court, six have been candidates of right-wing justice ministers.
Due to the dominance of the Israeli right-wing over the political landscape, right-wing justice ministers have seemingly been able to slowly but surely turn the court in a conservative direction.
So what then motivated Levin to embark on the contentious and far-reaching legislation that was approved by the Knesset on Thursday?
Judicial appointments and ideological alignment
Gideon Sa’ar, who drafted the legislation with Levin and presented it with the justice minister, had this to say about the motivation behind the law on the day he and Levin introduced it to the Knesset Constitution Committee on January 21 this year.
“This amendment has its origins in the blocking of [legal academics Aviad] Bakshi and [Rephael] Bitton to the Supreme Court,” Sa’ar told the committee members explicitly.
Bitton is an ardent legal conservative and senior lecturer at Sapir College School of Law, while Bakshi is a similarly conservative legal academic who heads the legal department at the conservative Kohelet Policy Forum.
Levin cited both Bakshi and Bitton as inspirations for his original judicial overhaul agenda, which would have given the coalition almost total control over all judicial appointments and virtually revoked the Supreme Court’s power of judicial review over legislation and government action.
“The justice minister… represents the parliamentary majority, and it is not reasonable that he cannot choose one of 15 judges of the Supreme Court,” said Sa’ar, adding that it was “illogical” that the justice minister could not get “one judge out of 15 [who holds] his legal ideology” elected to the court.
Sa’ar was referring to negotiations in August 2024 between Levin and the judicial representatives on the Judicial Selection Committee, headed by then-acting president Uzi Vogelman, regarding appointing a new president of the Supreme Court and three new justices to the top court.
Levin proposed that at least one of Bakshi or Bitton be appointed to the Supreme Court and that staunch conservative Yosef Elron be appointed president, skipping over liberal justice Isaac Amit, who was supposed to be appointed president in accordance with the decades-old seniority system.
The three justices would then get to appoint a new Supreme Court justice of their choosing, and the committee would appoint a third, consensus candidate.
These negotiations broke down after at least one of the three justices on the committee reportedly refused the deal on the grounds that neither Bakshi nor Bitton were sufficiently qualified, and that overturning the seniority system would politicize the office of the president.
In September, the High Court ruled that Levin must elect a new president after he had refused to do so for some 16 months. Amit was elected in February after intense opposition by Levin which threatened to turn into a constitutional crisis. The justice minister has refused to recognize Amit’s election as president ever since.
True conservatives or mere compromise candidates?
Israeli-American attorney Yonatan Green, a fellow at the Georgetown University Center for the Constitution and author of an upcoming book on the Israeli legal system, argues that at least some of the six or even seven current Supreme Court justices considered by many to be conservatives are in fact conservative “by label” only.
“A genuine conservative legal figure has no chance of being appointed to the court,” said Green, and argued that the description of the current Supreme Court as now being dominated by so-called conservatives was “limited to the Overton window of activist judicial dominance of the judicial selection process.”
Citing the examples of Baskshi and Bitton directly, Green argued that the only so-called conservatives who can get appointed to the Supreme Court are those “who are acceptable and palatable to the current court.”
Green also asserted that whereas the right-wing cannot get its preferred candidates elected to the Supreme Court, the left-wing has historically been able to do so, citing, for example, former justice Hanan Melcer, a legal adviser to the Labor party who was elected to the court in 2007 but who did not have prior judicial experience and had not served as a senior law-school faculty member.
“The left gets to appoint legal figures from the most radical wing of the legal and ideological spectrum, whereas the right gets to appoint compromise judges on condition that they are acceptable to the current judges,” Green charged.
Green also noted that renowned Israel jurists such as legal scholar Ruth Gavison and former Supreme Court president Moshe Landau had warned since the 1990s that “the court’s massive accrual of political power,” in Green’s words, would lead to efforts to change the judicial appointments process, as has now transpired.
Guy Lurie, a research fellow at the Israel Democracy Institute, strongly dissented from Green’s view that Vogelman and the Supreme Court vetoed Bakshi and Bitton due to their staunchly conservative legal ideology.
“The issue isn’t that Levin wasn’t able to put conservatives on the court, it’s that he wasn’t able to put people on the court who are loyal to him and his views,” said Lurie, channeling the spirit of Sa’ar’s comments to the Knesset Constitution Committee.
“There is nothing wrong with the current [former] system, where coalitions have strong influence over lower court appointments and have veto power over Supreme Court appointments, but where the Supreme Court won’t allow Levin to put someone on the court to be loyal to him,” he continued.
Lurie also rejected the notion that none of the justices on the court right now hold genuinely conservative legal ideologies, insisting that several are decisively in the camp of judicial restraint.
“It has nothing to do with worldviews or judicial outlooks, but everything to do with politicians wanting to have judges under their thumbs,” said Lurie.
“That’s irreconcilable to the ethos of the court, and any court.”
