Netanyahu has yet another new plan for choosing judges. It, too, is highly problematic

PM’s close aides argue that opposition leaders should grab with both hands his latest idea for changing the Judicial Selection Committee. They shouldn’t and they won’t

Tal Schneider

Tal Schneider is a Political Correspondent at The Times of Israel

File: Prime Minister Benjamin Netanyahu (R), President of the Supreme Court Esther Hayut (C) and Benny Gantz (L), then-leader of the Blue and White party, attend a memorial ceremony for late president Shimon Peres, at Mount Herzl in Jerusalem on September 19, 2019. (Gil Cohen-Magen/AFP)
File: Prime Minister Benjamin Netanyahu (R), President of the Supreme Court Esther Hayut (C) and Benny Gantz (L), then-leader of the Blue and White party, attend a memorial ceremony for late president Shimon Peres, at Mount Herzl in Jerusalem on September 19, 2019. (Gil Cohen-Magen/AFP)

Prime Minister Benjamin Netanyahu has said several times in recent weeks, during meetings with overseas leaders and in English-language interviews, that he still intends to carry out what he has called a small or minor correction to the Judicial Selection Committee, in order, as he has put it, to restore the balance between the branches of governance.

Those in Netanyahu’s inner circle believe that what the prime minister has in mind is a generous proposal that the opposition would have no reason to oppose. What’s more, they indicate, if the opposition does oppose it, the coalition will advance it nonetheless, with a reliance on public support. It’s hard to know exactly what they mean by this; perhaps pushing it through the Knesset while claiming it enjoys broad consensus on the basis of supportive public opinion surveys.

The envisaged remaking of the Judicial Selection Committee would be as follows, they indicate:

The nine-member committee would comprise three Supreme Court judges, three representatives of the coalition, and three representatives of the opposition. By contrast, as things stand, the nine committee members include the Supreme Court president; two other Supreme Court justices selected by the justices of the Supreme Court; the justice minister, who chairs the committee, and another cabinet minister; two members of the Knesset chosen by the Knesset in a secret vote (usually, but not always, one MK from the coalition and one from the opposition); and two members of the Israel Bar Association chosen by the association’s national council.

Furthermore, under the envisaged remaking, the appointment of any judge — to a Magistrate’s Court, District Court and the Supreme Court — as well as the appointment of the Supreme Court president, would require the support of seven of those nine representatives. As things stand, Supreme Court justices are appointed with a majority of seven of the nine panel members, but the president of the Supreme Court and other judges in the judicial hierarchy are appointed with a simple majority.

According to the mooted new proposal, therefore, the representatives of the Israel Bar Association would no longer have any representation on the committee. Furthermore, the current division of government representatives — two ministers, and one Knesset member each from the coalition and the opposition — would be canceled.

In the context of this mooted new proposal, it is worth noting the following key points:

1. At the end of March, legislation to change the composition of the Judicial Selection Committee was formally submitted to the Knesset for its second and third (final) readings. Under that proposal, slightly amended from the version that passed its first reading, the coalition would control almost all appointments of judges throughout the judicial hierarchy, including the first two appointments of High Court justices in any government’s lifespan. Even as Netanyahu is weighing the remake described above, this radical legislation, giving the political majority almost all control over judicial appointments, could potentially become law almost immediately, should the coalition so choose.

2. Given the current state of relationships between coalition parties, it would not be straightforward for the coalition to immediately focus on the judicial selection legislation when the Knesset returns from its recess on October 15. This is because the ultra-Orthodox parties, Shas and United Torah Judaism, have stated that they will not support any of the judicial overhaul legislation until the IDF draft law is amended to give blanket exclusion from military and/or any national service for full-time Torah students. The legislation they seek would be certain to attract immense public and political opposition.

Even were the coalition nonetheless to advance an amended draft law, UTJ’s Yitzhak Goldknopf and Moshe Gafni have indicated they still could not be relied upon to support judicial overhaul legislation. It is not clear how credible those comments are.

3. The assumption among the key figures in Netanyahu’s bureau is that the mooted new proposal for a remade Judicial Selection Committee should be acceptable to the opposition leaders. They believe, indeed, that the opposition should want to grab it with both hands. But, they say, Opposition Leader Yair Lapid (Yesh Atid) and fellow opposition party leader Benny Gantz (National Unity) are likely to reject it because they are in thrall to the organizers of the ongoing mass public protests against the overhaul. The basis for this entire assessment is flawed, however.

The fact that the Netanyahu coalition has been seeking to change the composition of the Judicial Selection Committee has been at the heart of the intense public argument for the past 10 months. Turning the committee into a body controlled by politicians — with six of the nine members politicians, who would be focused on short-term political interests — is intrinsically problematic.

At the same time, it could be that much of the public is not well-disposed to the Israel Bar Association, in the wake of the corruption and alleged corruption surrounding the IBA’s two recent leaders, Efi Nave and Avi Himi.

4. The mooted new composition of the Judicial Selection Committee involves another intrinsic problem. What would happen if an opposition party were to join the coalition? (This happened in 2016 when Avigdor Liberman became defense minister and his Yisrael Beytenu, hitherto an opposition party with representatives on the judicial selection committee, joined the government.) The balance within the Judicial Selection Committee would immediately be shattered. The coalition would potentially have an absolute majority on the committee.

5. As described by those around Netanyahu, it is not precisely clear who would represent the Supreme Court on the committee. In some earlier discussions, Justice Minister Yariv Levin and Knesset Constitution, Law and Justice Committee Chair Simcha Rothman talked of appointing retired justices to the committee, to be determined by the justice minister. Such an approach would of course undermine the notion of a committee with checks and balances.

6. If Netanyahu continues to promise in English that he only plans small corrections to the composition of the Judicial Selection Committee, but in practice, in 2024, Netanyahu, Levin and Rothman advance changes to the status of ministerial legal advisers, legislation on an “override” clause, and additional overhaul initiatives, the opposition and the public will plainly feel obligated to continue to oppose any and every judicial change, large or small. In this context, it should be noted that Levin insisted two weeks ago, even as Netanyahu was in the US talking of minor corrections, that his “reform” package would be proceeding as envisaged. “Even if there are no agreements [with the opposition], I have no intention of canceling the reforms,” said Levin.

For his part, Netanyahu’s Likud party spokesman Guy Levy last week stated that the overhaul legislation will pass, albeit in small steps, over a protracted period. As Levy put it, “The reform is unstoppable. It’s like waves that crash into the shore over and over again until they finally overwhelm it.”

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