‘Serious atmosphere’ but no initial agreement as overhaul talks tackle judge picks

Coalition, opposition teams hold first discussion on makeup of judicial selection panel; sides make competing offers, with gaps still significant on whether coalition gets control

Michael Bachner is a news editor at The Times of Israel

President Isaac Herzog hosts delegations from Likud, Yesh Atid and National Unity for judicial overhaul negotiations at his residence in Jerusalem, March 28, 2023. (Kobi Gideon/GPO)
President Isaac Herzog hosts delegations from Likud, Yesh Atid and National Unity for judicial overhaul negotiations at his residence in Jerusalem, March 28, 2023. (Kobi Gideon/GPO)

President Isaac Herzog’s office hosted a first discussion Monday on the contentious issue of the makeup of the Judicial Selection Committee as part of judicial overhaul negotiations between the coalition and opposition. While reports indicated that the talks were serious, the gap between the sides’ positions is significant.

The coalition’s current bill — which has passed all legislative hurdles except its final Knesset plenum votes — would heavily politicize the committee and give the coalition practically complete control over the appointment of judges. The makeup of the committee, which currently divides power between politicians and sitting justices regarding new Supreme Court appointments, is arguably the most contentious part of the overhaul, and the issue on which a compromise is the most elusive.

Several Hebrew media outlets reported that the opposition rejected a new proposal by the coalition under which the committee would be made up of five coalition lawmakers and five opposition MKs, alongside a retired Supreme Court justice appointed by the justice minister.

The proposal would require a majority of at least six members to appoint a judge, which would in effect give a given ruling coalition control over appointments, provided that the retired justice is aligned with the coalition.

Currently, the Judicial Selection Committee’s nine-member panel appoints Supreme Court justices through a seven-vote majority and lower court judges through a simple majority of five. Three coalition politicians, one opposition MK, three sitting Supreme Court justices, and two Israel Bar Association members sit on the panel, meaning compromise between political and professional representatives is required to tap a Supreme Court justice.

According to the Haaretz daily, the opening proposal of the opposition was to leave the committee as is, but to have the two Bar Association representatives picked by politicians — one by the coalition, one by the opposition — rather than by the association itself.

The Israel Hayom daily reported that other models were discussed, including one that would have the committee made up of four coalition MKs, four opposition MKs, two public representatives — one appointed by the coalition, the other by the opposition — and a retired Supreme Court justice or retired district court judge selected by the justice minister after consulting with the Supreme Court president.

Discussions of that formula reportedly included a proposal that the first Supreme Court justice appointed during a given coalition’s rule would require a simple majority of six members — meaning, with near-complete coalition control — while the second would require a majority of seven, the third a majority of eight, and the fourth a majority of six again.

The Judicial Selection Committee during the 34th government of Israel convenes, with then Justice Minister Ayelet Shaked together with Supreme Court President Miriam Naor, Finance Minister Moshe Kahlon and other members of the Israeli Judicial Selection Committee, February 22, 2017. (Yonatan Sindel/Flash 90)

According to the bill that almost passed into law last month but was put on hold to allow for the compromise talks, the committee would be made up of three sitting Supreme Court justices, three ministers, three coalition MKs and two opposition MKs. A simple majority — meaning, an automatic majority for the coalition — would be needed to appoint the first two Supreme Court justices during a given coalition’s tenure, after which the required majority would increase.

The opposition and critics have vehemently rejected that proposal, since many coalitions don’t appoint more than two justices anyway, so that, in effect, the coalition control would have control over the vast majority of picks.

The President’s Residence said Monday evening that the discussions were held “in a positive, professional and serious atmosphere,” adding that “the sides are committed to continuing the dialogue with the goal of reaching agreements.”

Coalition representative Hanoch Milwidsky, a Likud lawmaker, said afterward: “There is much to work on, but there are also partners to work with. The optimism I voiced after the previous discussion still stands, believe it or not.”

Likud MK Hanoch Milwidsky, left, and Yesh Atid MK Orna Barbivai attend a Constitution, Law and Justice Committee meeting at the Knesset in Jerusalem, February 8, 2023. (Yonatan Sindel/Flash90)

The opposition Yesh Atid and National Unity parties released a joint statement stressing “the need to reach wide agreement while preserving all principles of democracy, on which we will not compromise.”

The government’s sweeping reform agenda also includes legislation that would radically reduce the ability of the High Court of Justice to strike down laws as unconstitutional, allow the Knesset to make legislation immune to High Court review in the first place, and allow ministers to appoint — and fire — their own legal advisers.

The judicial appointments legislation was set to be passed into law at the end of March, but mass protests, widespread strikes, opposition from numerous sectors of Israeli society, pleas from President Herzog, and the intense opposition of some crucial IDF reserve units forced the government to back down and enter the negotiation process.

One of the key arguments of opponents to the government’s judicial overhaul package is that it would give the government and Knesset almost unrestrained power and remove the checks on such power provided by the High Court of Justice.

Representing the coalition in the talks, which were launched earlier this month, is Cabinet Secretary Yossi Fuchs, together with Strategic Affairs Minister Ron Dermer, legal scholar Prof. Talia Einhorn, and constitutional expert Dr. Aviad Bakshi. Bakshi is head of the legal department of the conservative Kohelet Policy Forum think tank, which helped formulate the government’s original judicial overhaul legislation.

Cabinet secretary Yossi Fuchs arrives for a cabinet meeting at the Prime Minister’s Office in Jerusalem on January 29, 2023. (Yonatan Sindel/Flash90)

Yesh Atid’s representatives are MKs Karine Elharrar and Orna Barbivai, Naama Shultz who served as the director-general of the Prime Minister’s Office under the tenure of Yesh Atid leader Yair Lapid, and Oded Gazit, an attorney.

National Unity’s negotiation team includes MK and former justice minister Gideon Sa’ar, as well as MKs Chili Tropper and Orit Farkash-Hacohen, along with Ronen Aviani, an attorney.

Jeremy Sharon contributed to this report.

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