Deputy Attorney General Avital Sompolinsky spoke out forcefully Monday against the coalition’s latest proposal to change the way judges in Israel are appointed, calling the new plan — presented as a softened version — effectively the same as the original legislation.
Speaking at the Knesset Constitution, Law and Justice Committee on Monday, Sompolinsky said that all the legal difficulties the Attorney General’s Office encountered in the initial legislation “don’t receive any significant response in the new version.”
The original proposal put forth by Justice Minister Yariv Levin gave the coalition total control over all judicial appointments without the need for support from either the opposition or the judiciary, and a version of that proposal passed a first reading last month. At the time, Sompolinsky said that such a move would “politicize the justice system and severely harm its independence and public trust in it.”
An amended version proposed by MK Simcha Rothman — the Constitution Committee chairman — on Sunday evening suggests, among other things, that only the first two Supreme Court judicial appointments during the term of each Knesset would be controlled by the coalition, with future appointments requiring the support of at least one member of the opposition.
Israeli justices retire at 70. Supreme Court President Esther Hayut along with Justice Anat Baron will be retiring this coming October.
But Sompolinsky noted Monday that a third such nomination may not necessarily arise during a single governmental term, meaning that “it could be that there’s not really a change” at all from the original legislation.
The latest proposal still includes “very, very serious discarding of professional considerations in selecting Supreme Court justices, a very significant strengthening of the coalition power,” she told members of the committee.
Even with the modified proposal, “the significant increase of the politicization that we see [in the Judicial Selection Committee] has remained in place,” Sompolinsky added.
Her comments came as the committee reconvened Monday morning to debate Rothman’s Sunday night proposal, which he further slightly updated on Monday morning. This has been presented by Rothman and some members of the coalition as a compromise deal, though it was reached without any negotiations with the opposition.
During Monday’s debate, marked by strenuous objections to Rothman’s proposal from opposition MKs who argued that it destroys Israel’s judicial independence and leaves basic rights unprotected, Rothman charged that opponents of the coalition’s judicial overhaul were imagining “scenarios [of abuse by the coalition] that will never come to pass.”
He said the latest version of his proposal was “good news” and “fulfills our promise: the people will finally be able to influence the choice of judges, which has not been the case for many years.”
Orit Farkash-Hacohen, of the opposition National Unity party, countered: “You’re ‘softening’ [of the legislation] is a case of slow-cooking, putting us in a small pot, calling things ‘a compromise’… when in fact what we have here is a proposal whereby the coalition and politicization take over control of the appointment of judges. And after you’ve taken control of the judges, there’ll be nothing left [of judicial independence].”
Merav Cohen of Yesh Atid noted during the session that, on average, 2.6 seats open up on the 15-strong bench in each Knesset’s lifespan, meaning the coalition would be automatically choosing almost all justices and heavily influencing the candidacy of the few others.
“The coalition should be ashamed of itself” for this law and the other legislation it was prioritizing,” Cohen said on Monday afternoon. “Once it has taken control” of choosing High Court justices, she added, “there will nothing to stop it” legislating its slew of other announced anti-democratic laws.
While the coalition intends to pass its law on selecting judges by the end of next week, Rothman urged the opposition to use next month’s Knesset recess to debate other elements of the overhaul package — an invitation the opposition has rejected. He said it was still possible to heal the internal Israeli rifts over the legislation and achieve “an agreement that the whole people can unite behind.”
In the newest version of the legislation Monday morning, any new governing coalition would have complete control over the first two appointments to the Supreme Court that open up during its tenure, but require the support of at least one opposition MK for a third nomination as well at least one judge on the committee for a fourth nomination.
Currently, Israel’s nine-member Judicial Selection Committee is split between four politicians and five professional representatives — three judges and two members of the Israel Bar Association. According to Rothman’s newly proposed changes, the committee would be expanded from nine to 11 members, six of them from the governing majority. It would comprise three government ministers from three different parties; three coalition MKs from three different parties; two opposition MKs from two different parties; and three Supreme Court justices, including the court president.
Rothman would not state on Monday whether the coalition would automatically select the Supreme Court president, a move that would further strengthen its control of the committee. The current coalition framework would indeed enable the coalition to select the court president.
Appointments would be made through a simple majority of six out of 11 members for the first two appointments to the Supreme Court in a Knesset’s term. After those appointments, the majority needed would remain six out of 11 but among those six at least one member of the opposition would be required. A fourth appointment during the same term would require backing from both a member of the opposition and a judge in order for it to be approved.
In effect, this would mean that two coalition-backed justices could be appointed with ease, and any remaining appointments could be consensus candidates. But critics have pointed out that once those two appointments are in place, those judges could serve on the committee.
In addition, placing two ideologically aligned judges on the Supreme Court bench would mean that if the government succeeds in passing legislation setting a requirement for a unanimous court ruling to overturn Knesset laws, the court would likely be unable to do so.
Members of the opposition resoundingly rejected Rothman’s new proposal, mocking the coalition for “negotiating with itself” and seeking to mislead the public.
Opposition leader Yair Lapid called the new proposal “a framework for a hostile political takeover of the judicial system,” suggesting it would allow the government to appoint political associates to the bench — “which is exactly what they’ve been planning from the very first day.”
Labor party chief Merav Michaeli said that “controlling the Judicial Selection Committee is bringing destruction to democracy — we cannot buy Likud’s spin.” She added that “there is no ‘compromise’ or ‘softening’ here. This was their original goal from the beginning — trying to topple the foundation of democracy. We cannot stop the protests. We cannot allow this hostile takeover.”
The coalition party heads said Sunday that they intend to fully legislate the changes to the Judicial Selection Committee in the next 10 days, before the Knesset goes on recess for Passover.
The government said it intends to put a hold on most of the remaining judicial overhaul legislation until the beginning of the Knesset summer session.
Jeremy Sharon contributed to this report.