MK Kariv: Overhaul bill will leave judges ‘eternally fearful’ of their political bosses

Ahead of the coalition’s final push to pass its highly controversial law to change the judicial appointments system, Democrats MK Gilad Kariv has said the legislation would mean judges are “tagged” with a political affiliation upon appointment and will be constantly worrying about who their rulings may upset.

Speaking to The Times of Israel, Kariv, who sits on the Knesset Constitution, Law, and Justice Committee where the legislation was prepared, also lambasted a mechanism in the bill that he said would polarize and radicalize the Supreme Court at a time when Israel is in need of moderating voices.

His comments came just before the committee approved the bill for passage to the Knesset plenum where this judicial appointments bill, which lies at the heart of its judicial overhaul agenda, looks set to be passed into law. If approved, the influence of the judiciary over judicial appointments would be greatly weakened and the power of politicians greatly enhanced.

In contrast to the current system, the legislation would grant politicians veto power over lower-court appointments and completely exclude the judiciary from having any power over appointments to the Supreme Court. It also increases political representation on the Judicial Selection Committee while removing two representatives without party political affiliation.

Justice Minister Yariv Levin and others in the coalition have insisted that under the current system the judiciary has too much control over judicial appointments, and that giving politicians greater control would redress what they claim is an imbalance in which the government has difficulty appointing judges it favors.

But the opposition has argued that the proposed law would greatly politicize the appointments process and by extension the judiciary itself, thereby undermining judicial independence and the only real check on executive and legislative power in Israel’s democratic system.

The Knesset Constitution Committee approved the bill for passage to the Knesset plenum on Wednesday morning, and it could be now be brought for its final readings as early as next week.

The law would, however, only take effect at the beginning of the next Knesset, meaning after the next general election.

Kariv has been one of the most trenchant critics of the bill and has railed against the politicization of the judiciary he says will result from it.

Levin (Likud) and Knesset Constitution Committee chairman MK Simcha Rothman (Religious Zionism) refused repeated requests by The Times of Israel for an interview to discuss the law and the opposition’s criticism of it.

‘Disproportionate political power’

“The bill grants extra and disproportionate power to political elements in the process for appointing judges in Israel,” said Kariv.

“It turns the appointment process for Supreme Court justices into a process in which there is only a role for political players, as opposed to the system we’ve had in place for 75 years in which selecting Supreme Court judges is done by agreement between professional elements and political players on the Judicial Selection Committee.”

The bill, if passed, would remove the two representatives of the Israel Bar Association currently on the nine-member Judicial Selection Committee, which makes all judicial appointments, and replace them with one lawyer to be directly chosen by the coalition and another chosen by the opposition.

These committee members would be political players since they are directly appointed by politicians, Kariv and other members of the opposition have argued, in contrast to the Bar Association representatives who have no formal party affiliation and who Kariv and his colleagues regard as legal professionals familiar with the judicial system and its judges.

Appointments to lower courts would be made by a simple majority, but would need at least one vote each from committee representatives of the coalition, opposition and the Supreme Court.
Until now, neither the judiciary, the coalition or the opposition could veto a lower court appointment.

Appointments to the Supreme Court would need at least one vote from the coalition and opposition, but not require any votes from the three Supreme Court justices on the Judicial Selection Committee.

Kariv argued that the enhanced role for politicians in the judicial appointments process at the expense of the legal professionals — the three Supreme Court justices and two Bar Association lawyers — would create a situation in which judges in Israel would be concerned about the political fallout of their decisions for their own future, instead of ruling on the merit of the case before them.

“This creates a situation in which politicians have a full veto over all judges in the lower courts for every court system. The youth courts, traffic courts, administrative courts, family courts — they have a veto over them all,” said Kariv.

“It creates a situation in which all the judges in Israel will be tagged and categorized politically. Judges will be always asking themselves if their rulings will annoy one political side.

“We’re going towards the total politicization of the justice system and the eternal fear of judges on all courts to make a decision that might annoy someone.”

And, he continued, it would create a reality in which the public would lobby its political representatives to veto judges from the other side of the political aisle.

“I’m on the Zionist left. If I have a veto, my public will pressure me to use it. They’ll say, for example, ‘You can’t let this settler become a judge on the youth courts. Use your veto.’”

This, said the MK, “will lead to a catastrophe for everything to do with the lower courts.”

Kariv said that the Knesset Constitution Committee never even held a hearing on the possible politicization of the judiciary as a result of the bill, despite warnings by the opposition parties, the attorney general, the committee’s legal adviser and three former Supreme Court presidents.

Asked if the Bar Association representatives were not already political, especially given association head Amit Becher’s strident and very public opposition to the current government, Kariv insisted there was a difference between legal ideology and party-political affiliation.

Selection of the Bar Association representatives to the Judicial Selection Committee is made by the organization’s council, whose balance of power is determined by internal Bar Association elections.

“You can choose lawyers who are more activist, for example, over defending human rights, but that is not a party political position,” argued Kariv, whereas the lawyers replacing the Bar Association representatives would have a clear party political alignment.

The Democrats MK, who chaired the committee in the Bennett-Lapid government, said he also suggested that changes to lower court appointments be removed altogether from the legislation, but Rothman rejected the idea.

And he said that other suggestions made by the opposition to ameliorate the politicization effect of the legislation, such as requiring that the two Judicial Selection Committee members to be appointed by the coalition and opposition be retired judges, were also rejected.

Small changes to the original draft were introduced to the bill without debate in committee, he added.

Kariv argued in particular that the changes to the appointments process for the lower courts was unnecessary since even under the current system, and amid the severe political polarization in the country, the Judicial Selection Committee led by Levin himself has appointed dozens of judges to magistrate’s courts, district courts, and other court systems.

Levin is showing “that the current appointments system works [since he and his colleagues] managed to get to agreements” on appointing lower court judges, Kariv said. “So why are they changing the system?”

Creating ‘extremism in the Supreme Court’

Kariv also excoriated the changes to the appointments system for the Supreme Court.

Currently an appointment to Israel’s top court requires seven out nine votes in the Judicial Selection Committee, meaning that a Supreme Court judge cannot be appointed without the consent of both the coalition and the judiciary.

Under the new law, only five votes are needed for Supreme Court appointments, but that must include at least one vote from the coalition and opposition. No support is needed from the Supreme Court justices on the committee.

In the event that there are two empty slots on the Supreme Court and the coalition and opposition sides veto all of each other’s nominations for a year, the justice minister can activate a deadlock-breaking mechanism whereby both sides nominate three candidates and the other side must pick at least one.

Levin has argued that these changes are necessary since, he says, the coalition has too little control over appointments to the Supreme Court. He has also said that there is currently an automatic majority on the Judicial Selection Committee for liberal candidates.

“Are we living in an era when facts and numbers don’t interest anyone anymore,” fumed Kariv, pointing to the numerous conservatives currently on the court.

“Are [Justices Noam] Sohlberg, [Yael] Wilner and [David] Mintz liberal?” he demanded in reference to conservative justices on the court, who by some counts now constitute a majority on the court.

All three former Supreme Court presidents who have commented on the bill, as well as the attorney general, have said, like Kariv, that it is a recipe for polarization and radicalism on the Supreme Court.

They have argued that the compromise necessary in the normal appointments procedure will all but disappear since the coalition and opposition will know that even their most ideologically committed and zealous candidates can get appointed to the court in the deadlock mechanism, if they just wait a year.

“They are creating a system that will create a process of extremism in the Supreme Court, not moderation. The new system will polarize the Supreme Court; it’s exactly the opposite of what we need,” said Kariv. “They are tearing Israeli society apart.”