Opposition previews plans to remake composition of the Supreme Court

Bill would put appointment of justices in top court under government and Knesset control; unlikely to pass this Knesset; seen as an advertisement for return of right-wing coalition

Carrie Keller-Lynn

Carrie Keller-Lynn is a former political and legal correspondent for The Times of Israel

Supreme Court Chief Justice Ester Hayut with outgoing Supreme Court judge George Karra and Supreme court justices at a ceremony held for Karra, at the Supreme Court in Jerusalem on May 29, 2022. (Yonatan Sindel/Flash90)
Supreme Court Chief Justice Ester Hayut with outgoing Supreme Court judge George Karra and Supreme court justices at a ceremony held for Karra, at the Supreme Court in Jerusalem on May 29, 2022. (Yonatan Sindel/Flash90)

On Sunday, the religious-right opposition previewed legislation to remake the Supreme Court justice appointment process and transfer complete control to elected officials. While it is unlikely to progress to law in the current Knesset, the bill — awaiting its preliminary reading on the Knesset floor — is a harbinger of intention to change the court’s character should the Likud-led opposition bloc return to power.

Under the proposal, government ministers would select candidates for the top court, for approval by the Knesset plenum. When an Israeli government also holds a majority in the Knesset, as is almost always the case, the proposed system would allow a ruling coalition to select and confirm the top court’s justices without any other stakeholders’ involvement.

This would be a marked departure from the current system, under which elected officials share responsibility for appointing the 15 Supreme Court justices with senior judicial figures and legal professionals. While chaired by the Justice Minister, the current nine-member Judicial Selection Committee features two MKs — one traditionally from the opposition — another cabinet minister, the Supreme Court president, two more of her bench colleagues, and two members of the bar association.

Until 2008, a simple majority of five committee members was enough to push a candidate through, leading to criticism that the five-member justice and bar association bloc could control candidacies. But a reform initiated by then-Likud MK Gideon Sa’ar raised the threshold to seven votes, ensuring that both two politicians and a justice would have to approve each candidacy.

The current system, enshrined in 1984’s Basic Law: the Judiciary, is not without critics and judicial reform has been a longstanding issue. According to a report by the conservative Kohelet Policy Forum, the Knesset has tabled about 70 bills to change the method by which judges are appointed. Most recently, now-Justice Minister Sa’ar (who leads the New Hope party) pushed to make judicial selection hearings public in order to increase transparency.

In the recent past, a then-Justice Minister, Ayelet Shaked (Yamina), who today serves as interior minister, tried to advance a reform similar to today’s right-religious opposition. Under her plan, the Justice Minister would suggest candidates for cabinet selection, followed by Knesset approval.

Interior Minister Ayelet Shaked speaks at a conference in Jerusalem, February 21, 2022. (Yonatan Sindel/Flash90)

Why does the opposition want to reform the process?

The Supreme Court’s 15-justice composition has moved more to the center in the past years, but it retains an overall reputation of being a liberal bastion. Practically, moving control of appointments to the Knesset would likely move the court to a more right-wing orientation, given the right-religious orientation of the parties who would need to be in power to advance the measure.

“It’s part of a political campaign,” said legal analyst Moshe Goraly.

“In the big fight between conservatives and liberals, there’s a balance that’s has changed since [Israel had a staunchly liberal court under former court president] Aharon Barak, now it’s more balanced than it used to be. But it’s not enough for the opposition, they want more,” Goraly added.

In addition to the Likud, the bill is supported by United Torah Judaism, Shas, and Religious Zionism, all parties allied with Likud leader Benjamin Netanyahu. Netanyahu himself is on trial for graft in three separate cases related to conduct during his tenure as prime minister.

Likud politicians have railed against the court’s legitimacy, intensifying their attacks in the past few years during which their leader has been under investigation and indictment.

“You’ll hear that this bill is connected to the Netanyahu trial. But maybe it’s the opposite,” said Aharon Garber, a fellow at Kohelet. Rather, Garber said, “The tension between elected officials and judges is the problem.”

“The claim is that [the Supreme Court] pursues a liberal agenda that doesn’t fit the public majority,” he added, hinting at Israel’s increasingly right-leaning politics.

In fact, Likud MK David Amsalem — one of the bill’s sponsors — has routinely blasted the court on the Knesset floor and in the media, calling the justices “detached” from society and implying the court discriminates against Mizrahi Jews.

Likud MK David Amsalem addresses the Knesset plenum, June 1, 2022. Photo by (Olivier Fitoussi/Flash90)

Amsalem charged that the court doesn’t tolerate “the Machloufs, nor the Amsalems, nor the Bitons,” he said by invoking Mizrahi Likud party names in February, after several of his petitions were denied.

Ultra-Orthodox society also has its long-held gripes with the court. Political analyst Avi Grinzweig explained that swaths of ultra-Orthodox Israelis “claim, that the Supreme Court puts forward pluralist and populist issues” but which it “railroads Haredi values and tries to coerce its values [onto Haredi society].”

This position was explosively conveyed by bill sponsor UTJ MK Yitzhak Pindrus, who last month was recorded saying “my dream is to blow up the Supreme Court.”

Concerns with changing the system

Sa’ar slammed the proposed reforms as threats to judicial independence.

The justice minister said that the proposal is “aimed at eliminating the Supreme Court’s independence and completely politicizing the selection process for judges,” during a Monday meeting for his New Hope faction.

“If, God forbid, a Bibi-Ben Gvir government is formed, the danger to the democratic government in Israel will be clear and immediate,” he added, referring to Netanyahu and ultra-right MK Itamar Ben-Gvir, who is also backing the bill.

Justice Minister Gideon Sa’ar leads a New Hope faction meeting at the Knesset on June 6, 2022. (Yonatan Sindel/Flash90)

Garber highlighted the fact that the Israeli judicial selection system is “the outlier” among the community of Western democracies, and that a reform to place appointments firmly in elected official control is “more similar to what’s happening in the world,” including the United States.

However, the American system is not a perfect analogy to Israel, say experts.

The American Supreme Court justice appointment process relies on a nomination by the President and confirmation by the Senate. This involves two branches of the government — the executive and the legislative — which check and balance each other. In Israel, by contrast, the government is forged out of a coalition, meaning that there is an embedded oversight mechanism in a process by which the coalition approved a government decision.

In this way, “you are giving the coalition total control over the appointment of justices,” said Guy Lurie, a research fellow at the Israel Democracy Institute.

Independence of the judiciary is also at issue, as the American and Israeli systems have different guardrails on judicial tenure. In the US, lifetime appointment for Supreme Court justices is enshrined in the Constitution. In Israel, tenure until age 70 is guaranteed by a basic law. Although basic laws have quasi-constitutional status, they are far more malleable than a constitution. Whereas in the US, the constitution needs to go through a multi-step, distributed power process to be amended, in Israel, the judicial basic law can be altered by a simple Knesset majority — which is normally held by healthy coalitions.

Guy Lurie, research fellow at the Israel Democracy Institute. (Courtesy IDI)

This means that under the proposed reforms, a unified government could conceivably push through candidates with little resistance and then change the rules to shorten the tenure of unfavorable justices.

“The reason why we’ve maintained our current system is that Israel does not have safeguards for the independence of the judiciary like other places have,” Lurie added.

Hiddai Negev from the Movement for Quality Government went a step further, saying that: “The system [opposition parties are] suggesting is something that also doesn’t work in the US,” referring to the trend of increasingly partisan appointments, “and yet they’re trying to apply it here.”

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