Overhaul redux: Levin’s ‘compromise’ proposal would again radically constrain the judiciary
The coalition won’t be able to appoint judges by itself but judge selection would be highly politicized, Basic Laws would be immune from judicial review and other laws hard to block
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
Since the first week he took office two years ago, Justice Minister Yariv Levin has relentlessly sought to radically overhaul Israel’s current judicial and legal system, with an emphasis on enabling near-complete control by the governing majority of the appointment of judges, and radically constraining the judiciary’s capacity to exercise oversight of the government and the legislature.
His militant agenda sparked intense societal and political divisions, with critics charging that the moves undermined democracy in the country and would eviscerate the system of checks and balances — leading to a year-long mass protest movement and even military service refusal.
The devastating October 7, 2023 invasion and atrocities perpetrated by Hamas and the subsequent war put thoughts of legislative judicial reform of any kind on the back-burner for a considerable period of time, but Levin nevertheless continued his battle against the judiciary on several fronts, setting up repeated clashes.
This culminated on December 12, 2024, when the Supreme Court — sitting in its capacity as the High Court of Justice — ordered him to appoint a new Supreme Court president by January 16, after he has refused to do so for the last 15 months.
Levin denounced the court for its order and threatened to try to legislate around it, but ran out of time and lacked the immediate political support to actualize his threat.
Against this background of a simmering constitutional crisis, Levin, together with former justice minister Gideon Sa’ar, on Thursday unveiled a new proposal for far-reaching changes to Israel’s judicial and constitutional order.
The proposal includes changes to the composition of the critical Judicial Selection Committee, which appoints all judges in Israel; changes to the way that committee actually elects judges; a formalized process for legislating Israel’s semi-constitutional Basic Laws distinct from regular legislation; a ban on judicial review over Basic Laws; and tight restraints on judicial review over regular legislation.
Not all the details of the proposal have yet been made public, and indeed not all of the necessary details have actually been worked out by Levin and Sa’ar. The lack of clarity over some of these issues makes a full determination over the proposal difficult, but substantial concerns with the new package of changes for Israel’s judicial system are nevertheless already apparent.
Crucially, as with the previous overhaul package, the new proposal removes the Supreme Court’s capacity to strike down Israel’s quasi-constitutional Basic Laws. It also restricts judicial oversight over other legislation. Furthermore, the proposal increases the politicization of the Judicial Selection Committee, marginalizes the role of the justices on that committee, and introduces other changes to the committee’s operation that raise the prospect of the appointment of highly politicized Supreme Court justices.
Related: Levin, Sa’ar unveil new judicial overhaul plan; wary opposition heads hold off response
Here are six key points regarding the new proposal.
1. One step back in the new package of changes, as compared to Levin’s previous effort, is that a governing coalition cannot appoint judges by itself. At least one member of the judiciary and one representative of the opposition on the Judicial Selection Committee must approve appointments to Israel’s lower courts, and at least one representative of the opposition must approve appointments to the Supreme Court. Levin’s initial proposal, which so divided the country, would have granted governing coalitions virtually total control of all judicial appointments to all courts in the country.
The new proposal would preserve a check already existent in the current system, preventing a governing coalition from making every judicial appointment dependent on whether judges follow the political, legal and constitutional ideology of the ruling administration.
2. As pointed out by numerous critics including Democrats MK Gilad Kariv, the new proposal would significantly politicize the Judicial Selection Committee, and thus the judiciary itself, since it replaces the two lawyers selected to sit on the panel by the Israel Bar Association, a professional body, with one lawyer chosen by the coalition and one lawyer chosen by the opposition.
Even though in theory the same number of professional representatives remain on the committee, the politicians nominating them to the committee would likely only appoint lawyers who could be reliably depended on to vote in accordance with their own political ideology. By definition, this would further politicize the selection of judges.
As the Israel Democracy Institute (IDI) pointed out in a statement, the new package also grants politicians, and the judiciary, a veto over appointments to lower courts, whereas the current system does not, automatically increasing the level of politicization in the system. This would make “the professional advancement of judges contingent on the blessing of politicians,” the IDI added.
Appointments to the Supreme Court will not require even one vote of the three Supreme Court judges on the committee, whereas currently such appointments need at least one vote from a judge. The implication is that the power of independent professional legal voices in the selection of judges will be further reduced, to the benefit of the political echelon.
3. A mechanism included in the proposal ostensibly to prevent gridlock in the committee for appointing Supreme Court judges could quite possibly lead to polarization and extremism on Israel’s top court.
Under the proposal, if there are two open seats on the court for over a year with the committee unable to agree on appointees, the coalition would propose three candidates for nomination and the opposition would have to choose one of them, and vice versa.
Although this would ensure that the court is fully staffed, it could lead to extreme ideologues, who may or may not be qualified for the post, being elected to the Supreme Court, as constitutional law expert Adam Shinar of Reichman University pointed out.
It could even incentivize obstructionism on the committee during the normal judicial selection process because politicians could reason that they could get the most partisan judges who most closely follow their own political ideology elected to the court if they just wait one year.
4. Israel sorely needs a more rigid constitution, which must include a more rigorous legislative process for passing Basic Laws, which currently constitute its proto-constitution than for regular legislation. Levin and Sa’ar’s package includes provision for a Basic Law: Legislation that will delineate such a system, but is sorely lacking in detail.
It does say that legislating Basic Laws could not be done “suddenly” and for narrow coalition purposes, and could only address core issues of the state, such as its Jewish and democratic character, civil and human rights, and aspects of governance.
But, the proposal stipulates that the High Court will not have the power of judicial review over the Basic Laws. Prof. Yuval Shany, of Hebrew University’s faculty of law, said that if the bar for passing Basic Laws is set too low then key aspects of Israel’s democratic regime and protection of basic democratic rights could be endangered without any checks on the Knesset in the absence of judicial review over such legislation.
5. Judicial review over regular legislation could become significantly more difficult since it would require a majority of all serving Supreme Court judges to annul legislation. Currently, a panel of nine justices is usually appointed to preside over petitions demanding the annulment of Knesset legislation, although this is not a legal requirement, with a simple majority required.
As Amit Becher, the head of the Israel Bar Association pointed out, judicial review could anyway become a dead letter if the appointment of judges to the Supreme Court is politicized, as Becher insists it will be under Levin and Sa’ar’s proposal.
“The current proposal lacks the necessary fortifications for the independence of the legal system,” he said. Although the opposition would also have control over the appointment of justices to the Supreme Court, the increased politicization of the new system could lead to increased polarization on the court, meaning that it would be increasingly difficult to ever get a majority of judges to strike down legislation.
6. Although Levin and Sa’ar presented the new proposal as an “historic agreement” and “compromise,” it was in fact worked out between those two politicians, both of whom are cabinet ministers in the same government, together with input from a former centrist politician and a former right-wing IDF general.
As far as the public is aware, Levin and Sa’ar did not include members of the judiciary when constructing their new proposal or involve politicians currently in the opposition, and therefore did not conduct any external negotiations to moderate their raft of changes to the judicial and constitutional order.
The President of the Israel Democracy Institute, Yohanan Plesner, described it as “another one-sided initiative of the coalition” which he claimed would “politicize the judicial system without securing the basic rights of Israelis.”
It remains to be seen whether the extensive series of changes to Israel’s judicial system offered up by Levin and Sa’ar on Thursday is supposed to be the start of a real negotiation between the different components of Israel’s branches of government, or an inviolable package which the coalition will ram through Knesset regardless of what opposition it encounters.
If the latter is the case, then Israel can expect a new bout of severe societal and political instability, which would likely erupt in short order, and amid an ongoing, multi-front war.
