The imminent bid to quash the independence of Israel’s Supreme Court

Under revolutionary legislation submitted by the Likud-led opposition, the process of choosing our justices would be even more politicized than the US system, with fewer safeguards

David Horovitz

David Horovitz is the founding editor of The Times of Israel. He is the author of "Still Life with Bombers" (2004) and "A Little Too Close to God" (2000), and co-author of "Shalom Friend: The Life and Legacy of Yitzhak Rabin" (1996). He previously edited The Jerusalem Post (2004-2011) and The Jerusalem Report (1998-2004).

Benjamin Netanyahu and Gideon Sa'ar at a Likud faction meeting in the Knesset, on November 21, 2005. (AP Photo/Oded Balilty)
Benjamin Netanyahu and Gideon Sa'ar at a Likud faction meeting in the Knesset, on November 21, 2005. (AP Photo/Oded Balilty)

An earlier version of this Editor’s Note was sent out Wednesday in ToI’s weekly update email to members of the Times of Israel Community. To receive these Editor’s Notes as they’re released, join the ToI Community here.

Justice Minister Gideon Sa’ar is a long-time advocate of reform of the judicial system, including the process by which Israel chooses its judges.

As things stand, our judges are chosen by a nine-member Judicial Selection Committee that comprises the justice minister and a ministerial colleague; an MK from the government benches and one from the opposition; the president of the Supreme Court and two other judges; and two representatives of the Israel Bar Association.

Under a laudable refinement initiated by then-Likud MK Sa’ar in 2008, designed to ensure that the five judges and lawyers on the panel can’t steamroll the four politicians, the appointment of a Supreme Court justice needs the backing of seven of the panel’s nine members rather than a simple majority of five.

Sa’ar has said he would also like to see a more public nomination process, with a public hearing for candidates before the selection committee.

What Sa’ar does not advocate, however, is a fundamental remaking of the balance between Israel’s judiciary, its executive and its legislature. “Our judicial system needs to be repaired, not destroyed,” Sa’ar said a year and a half ago, citing concerns that then-prime minister Benjamin Netanyahu was bent on precisely such destruction.

Supreme Court Chief Justice Esther Hayut (left) with outgoing Supreme Court justice George Karra (center) and other justices at a ceremony held for Karra, the 13-member court’s only Arab justice, at the Supreme Court in Jerusalem on May 29, 2022. (Yonatan Sindel/Flash90)

A veteran Likud MK and minister, Sa’ar left Netanyahu’s party before last year’s elections, founded New Hope, and joined the now-crumbling coalition because he argued that the necessity to oust Netanyahu as prime minister took precedence over the right-wing political ideology the two broadly share. Israel’s longest-serving prime minister, Sa’ar argued then and continues to argue today, had become a danger to Israel, ready to sacrifice the interests of the state for his own personal needs, with judicial “reform” a case in point.

On trial in three graft cases, and insisting bitterly that he has been framed by a corrupt state prosecution and police force, Netanyahu has not publicly asserted that Israel’s judges are also corrupt. He has, however, advocated relentlessly for judicial reform, including limiting the Supreme Court’s right to strike down legislation. And his political and judicial critics are adamant that, if he has the votes, he would seek to shift the entire balance between the judiciary on one hand, and the executive and legislature on the other, including, crucially, preventing Supreme Court intervention on matters relating to politicians’ immunity from prosecution.

Legislation recently submitted by the Netanyahu-led opposition parties would go much further, however, fundamentally remaking the process by which the justices of the Supreme Court are selected in the first place, and abandoning that carefully constructed, multifaceted nine-member committee. Instead, Supreme Court justices would be chosen by the government, and confirmed by a vote in the Knesset.

MK Itamar Ben Gvir speaks in the Knesset on November 2, 2021. (Olivier Fitoussi/Flash90)

Submitted by MKs including Religious Zionism’s extremist provocateur Itamar Ben Gvir, a lawyer who has said he hopes his party will control the Justice Ministry in a future Netanyahu-led coalition, the bill might be seen as “merely” representing a shift toward a more American-style process for choosing the land’s highest judicial authorities.

But American justices are nominated by the president and confirmed by the Senate, and power in these two branches of government is often held by different parties; American justices have lifelong tenure to help underpin their independence, while Israeli ones must retire at 70; and the American system is anchored in the Constitution, while Israel has no constitution, and can continuously remake even its quasi-constitutional Basic Laws.

The revolution — and that’s what it is — proposed by the new bill’s advocates would feature no US-style checks and balances. The dominant political leadership of the day would control the entire process. The government would nominate its preferred justices, a simple Knesset majority (easily mustered by the government in most circumstances) would be sufficient to approve them, and at a stroke, as Sa’ar warned on Monday, Israel’s judicial independence would be swept aside.

Members of the US Supreme Court pose for a group photo at the Supreme Court in Washington, April 23, 2021. Seated from left are Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, Standing from left are Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett. (Erin Schaff/The New York Times via AP)

The bill, Sa’ar told his New Hope faction on Monday, is “aimed at eliminating the Supreme Court’s independence and completely politicizing the selection process for judges.” He vowed to torpedo the legislation if and when it is brought up for a vote, and warned, “If, God forbid, a Bibi-Ben Gvir government is formed, the danger to Israel’s democratic regime of government will be clear and immediate.”

There’s one more potential factor that distinguishes the proposed change from the American system. In the US, the political pendulum tends to swing fairly rapidly. Not so in Israel, where after a 30-year monopoly on power of the center-left following the founding of the state, the political right has for decades been increasingly ascendant. Gradually, a party or ideologically consistent coalition holding protracted power would be able to shape the entire Supreme Court in its ideological image.

Sa’ar said he expected the bill to come up for a preliminary vote on Wednesday. But the Likud-led opposition has chosen not to put it on the agenda yet. Why risk defeat at this stage, after all, when the coalition is hanging by a thread, and a far more convenient parliamentary environment for such revolutionary legislation may be just around the corner?

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