New judicial overhaul legislation raises ‘fundamental difficulties’ says Knesset lawyer

Constitution committee chair Rothman lambastes former justice minister for alleging politicization of judicial selection process, implies Oct. 7 was a result of judicial activism

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

Chairman of the Knesset Constitution, Law and Justice Committee MK Simcha Rothman argues with former justice minister Dan Meridor in a committee hearing, January 28, 2025. (Yonatan Sindel/Flash90)
Chairman of the Knesset Constitution, Law and Justice Committee MK Simcha Rothman argues with former justice minister Dan Meridor in a committee hearing, January 28, 2025. (Yonatan Sindel/Flash90)

Justice Minister Yariv Levin’s new judicial overhaul legislative proposal to change the way judges are elected suffers from “fundamental and practical difficulties,״ owing to the increased politicization on the Judicial Selection Committee it would cause, the legal adviser to the Knesset Constitution, Law and Justice Committee said on Tuesday.

Addressing what would become an ill-tempered hearing, committee legal adviser attorney Gur Bligh said the proposal would likely also create greater polarization on the Supreme Court due to a mechanism that is supposed to prevent deadlock over appointments between the coalition and opposition.

And he argued that the general idea of increasing political representation on the Judicial Selection Committee ran counter to current trends in Western democratic countries where there is a swing towards decreasing the influence of politicians over judicial appointments.

During his comments to the committee, Bligh did however state that the new legislation “does provide an answer” to the sharpest criticism about Levin’s original judicial overhaul legislation, which would have given a ruling coalition almost complete control over all judicial appointments.

The new proposal ensures that the opposition will always have a veto over all judicial appointments for both lower court appointments and those to the Supreme Court, although at the cost of increasing the level of politicization in judicial appointments, Bligh said.

He said nevertheless that some adjustments to several of the more problematic aspects of the proposal could soften their impact, and made some suggestions as to how this could be achieved.

Legal adviser to the Knesset Constitution, Law and Justice Committee attorney Gur Bligh speaks during a committee meeting, January 29, 2023. (Olivier Fitoussi/Flash90)

The advice and determinations made by Knesset committee legal advisers are not binding but are seen as important professional legal input in the legislative which any future petitioners against the legislation could point to in the High Court of Justice for supporting a demand to strike down the law.

The hearing also witnessed an ugly spat between committee chairman MK Simcha Rothman and former justice minister Dan Meridor who was invited to address the proceedings.

Meridor was similarly critical of the increased level of political representation on the Judicial Selection Committee, saying judges would work to ingratiate themselves with politicians instead of demonstrating their professionalism and independence, and that the new proposal, like the previous legislation, would endanger Israeli democracy.

Rothman reacted furiously to Meridor’s comments, alleging that the current judicial system may have been responsible for the October 7 Hamas invasion and atrocities due to its rulings against the government on some issues, and that he had sought to rectify those problems during the coalition’s push for judicial overhaul before that calamity.

The hearing was the second to be held in the Knesset Constitution, Law and Justice Committee over Levin’s new proposals, which would switch out the two Israel Bar Association representatives of the nine-member Judicial Selection Committee and replace them with two lawyers, one to be appointed by the coalition and one by the opposition.

Appointments to lower courts would be made a simple majority, but would need at least one vote each from committee representatives of the coalition, opposition and the Supreme Court, while appointments to the Supreme Court would need at least one vote from the coalition and opposition, but not require a vote from a Supreme Court justices.

In the event that two spots on the Supreme Court remain open for over a year, both the coalition and opposition could essentially force the appointment of a candidate of their choosing.

“We think the proposal raises fundamental and practical difficulties, first and foremost to the changes to the balance point between the considerations of professionalism and independence and political and representation considerations, and gives preference to political considerations.

Former justice minister Dan Meridor attends a hearing of the Knesset Constitution, Law, and Justice Committee, January 28, 2025. (Noam Moskowitz, Office of the Knesset Spokesperson)

Bligh criticized in particular the fact that the two new lawyers would be considered as representatives of the coalition and opposition and therefore wield veto power themselves.

This he said, would mean that the lawyers would be appointed very deliberately in line with the political ideology of the coalition and opposition out of fear that if they appointed someone too independently minded their own appointments could be vetoed.

“This significantly bends the balance of the committee [away] from the professional direction to a direction of politics and [political representation],” said Bligh.

The fact that politicians on the Judicial Selection Committee would have a veto over lower court appointments, which they do not currently enjoy, could further politicize the judiciary, said Bligh.

He contended that it could raise concerns that judges would “change their [legal] ethos” in order to get promotions.

“A magistrate’s court judge will want to know who is going to advance him to the district court,” said Bligh and believes that they “need to appease politicians” in order to get promotions, something which would harm public trust in the independence of the judiciary.

He also criticized the tiebreaker mechanism for the Supreme Court whereby if two spots on the bench are unfilled for over a year due to the committee being unable to reach a consensus, both the coalition and the opposition can essentially force a candidate of theirs onto the court.

This, Bligh said, could worsen the polarization on the committee since the coalition and opposition could come to the conclusion that to get a judge who most identifies with their political ideology on the court they could just wait a year instead of compromising with the other side.

The Knesset Constitution, Law and Justice Committee holds a hearing on revised proposals to change how judicial appointments are made, January 28, 2025. (Noam Moskowitz, Office of the Knesset Spokesperson)

It could also “paint” the judges elected in that way as specifically political, having been appointed exclusively by the coalition or opposition.

Bligh said it should be rethought if a tie-breaker mechanism was needed at all, and if so how the coalition and opposition could be dissuaded from making such appointments, such as making them short-term positions on the Supreme Court bench.

He also suggested tightening the criteria for the lawyers on the Judicial Selection Committee, such as requiring them to be retired district court judges, the heads of law faculties at universities, or other such positions that would increase the level of professional expertise on the panel.

Addressing the committee, Meridor, who spent his entire political career in the Likud party, noted that the current judicial selection system, in use since the founding of the state, always required the politicians on the committee to obtain the support of at least one professional member of the panel, a Supreme Court judge or bar association lawyer.

Under the new system a candidate for a judicial appointment would know there would be “nothing to talk about with the judges,” argued Meridor.

“He needs to obtain the consent of politicians — this is a dramatic change. This will cause distrust in the judicial system and people will know who appointed who and to where and where,” said the former justice minister.

He added that eventually, even the last remaining independent professionals on the Judicial Selection Committee, the Supreme Court justices, would be no more, since at some stage the justices from the Supreme Court would be those who had gained promotion through the more politicized system. This would make the entire Judicial Selection Committee a political body, Meridor contended.

Rothman rejected Meridor’s comments, and launched into a diatribe against the judiciary for reviewing government decisions relating to humanitarian policy towards Gaza.

“What I did was fix the reasonableness standard so that people wouldn’t sit in an ivory tower and not hear the cries of the families of the hostages and tell the cabinet what it can or cannot do to return the kidnapped,” said Rothman angrily, raising his voice.

He was referring to the coalition’s legislation annulling the use of the reasonable standard for reviewing government decisions which the Supreme Court sitting in its capacity as the High Court of Justice struck down last year.

“This is a dirty political position, which doesn’t take the hostages into consideration, which thinks that the human rights of Gazans are more important than our human rights, in the name of reasonableness,” stormed Rothman.

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