Who chooses judges: The evolution and planned radical overhaul of judicial selection
The coalition argues that Israel’s judges should reflect the will of the elected majority; critics counter that the courts must serve as a check on executive power, not a mirror
Last week, the coalition passed one of the central pillars of its hugely controversial overhaul of the judicial and legal system in its first Knesset reading, generating uproar in the Knesset plenum and deepening Israel’s current political crisis.
If it clears its second and third readings, the bill, which is being legislated as a Basic Law, will radically alter the balance of power on the Judicial Selection Committee, which is responsible for electing judges to all courts in the country, including the Supreme Court, and will in effect give the serving government and coalition total control over all judicial appointments.
The bill also bars the High Court of Justice from striking down Basic Laws or ordering them to be amended, meaning that the change to the judicial selection committee would itself be immune to High Court review.
The bill will now be brought back to committee for further review and could in theory be brought for its final Knesset readings in a matter of days, although the expectation is that this will not happen for another two weeks or so.
Proponents of the bill argue that it would give elected representatives the power they need to appoint judges who reflect the will of the people and who will less quickly strike down Knesset legislation in defiance of the elected majority’s wishes.
Critics on the other hand argue that the government is attempting to pack the court with conservative, right-wing judges and, together with the other planned reforms which would essentially eradicate judicial review, give the government and Knesset unrestrained power which would endanger civil rights in Israel.
So how exactly does the Judicial Selection Committee work today, how were judges selected in the past, what changes has the committee undergone since it was first inaugurated, and how would the plans to alter its composition affect the High Court’s functioning?
Judges today are technically appointed by the president of Israel, in accordance with the choices made by the Judicial Selection Committee. The committee selects judges for all courts in Israel, including the labor, magistrates and district courts, as well as the Supreme Court.
The committee is comprised of nine members, and the appointment of a judge to all courts other than the Supreme Court requires a simple majority of the committee members present, as long as no less than seven members participate in the vote.
An appointment to the Supreme Court requires the support of seven out of the nine committee members.
The nine members include the Supreme Court president; two other Supreme Court justices selected by the justices of the Supreme Court; the justice minister, who chairs the committee, and another cabinet minister; two members of the Knesset chosen by the Knesset in a secret vote (usually, but not always, one MK from the coalition and one from the opposition); and two members of the Israel Bar Association chosen by the association’s national council.
Under this system, the government and the coalition together usually have three members on the committee (the two ministers and one MK), the judiciary has three members, the Israel Bar Association has two members, and the opposition has one.
One of the key complaints raised by advocates of the government’s sweeping reforms is that, when choosing judges for the lower courts, the elected officials can easily be ignored by the unelected members of the committee — that is the judges and lawyers.
This is not the case for appointments to the Supreme Court, which require a majority of seven votes, and therefore a much higher level of consensus. In effect, the judges and the government representatives both have a veto over appointments to the Supreme Court.
Nevertheless, Justice Minister Yariv Levin, Knesset Constitution, Law and Justice Committee chairman Simcha Rothman and other advocates of the government’s overhaul have insisted that even this power of mutual veto between the government and the judiciary gives too much influence to the latter, to the detriment of the will of the people.
The requirement for a higher majority for a Supreme Court nomination was enacted by legislation passed by then-Likud MK and current National Unity MK Gideon Sa’ar in 2008, in order to give the elected officials greater power over the process.
The results of this change were highlighted in the selection process which took place in 2016 and 2017 for four spots on the Supreme Court, when a pitched battle opened up between the president of the Supreme Court at the time, Miriam Naor, and then-justice minister and right-wing MK Ayelet Shaked, who had long sought to make the court more conservative.
Shaked emerged victorious from that encounter, with three of the four appointees coming from her list of preferred candidates, and she said as much not long afterward.
“In the past, there were sectors [of the public] who did not feel that the Supreme Court represented them. Today, it represents everyone. It is more diverse, it is more conservative,” she said in an interview with Yediot Aharonot.
The future (according to the government’s judicial overhaul plan)
The government’s plans to restructure the committee would see both the Israel Bar Association representatives removed from the panel.
The committee would then be comprised of three cabinet ministers, including the justice minister who will serve as committee chair; three MKs — two from the coalition and one from the opposition; the Supreme Court president; and two retired lower court judges to be appointed by the justice minister in agreement with the Supreme Court president.
A simple majority of five votes would be required for all appointments, including to the Supreme Court.
This would give the government and coalition an inbuilt, automatic majority of five members on the committee, along with heavy influence over the choice of the two retired lower court judges.
Levin and Religious Zionism MK Rothman, the two architects of the judicial overhaul package, have also said they wish to enact a further reform at a later stage whereby the president of the Supreme Court would be chosen by the Judicial Selection Committee, not by seniority in the court as is currently the case.
Should that change pass as well, the government would have effective control of eight of the nine members on the committee and thereby total control over the appointment of all judges in Israel.
Lessons of the past
From the establishment of the state in 1948 and until 1953, the process of selecting judges for all courts was entirely in the hands of politicians.
During that time, to appoint a judge to the Supreme Court, the justice minister would nominate a candidate to the cabinet, the cabinet would approve the nomination and the Knesset would affirm that decision.
For judges to the lower courts, the justice minister would nominate a candidate to the cabinet, which would approve or deny the nomination.
But in 1953, that system was radically changed by the Judges Law, which established the Judicial Selection Committee.
The new law — which was eventually subsumed into the 1984 Basic Law: the Judiciary — set out the composition of the committee, as well as regulations for proper procedure of the committee, criteria and qualifications for candidates to the courts, disciplinary procedures and other matters connected to the appointment of judges.
The 1953 law swung the balance of power on the selection committee significantly towards the judiciary and legal professionals, since they now had a majority over the elected representatives. While the composition of the committee has not changed since, the procedure for choosing Supreme Court judges has.
The most substantive change since 1953 was Sa’ar’s reform in 2008, which increased the majority needed on the committee to elect a Supreme Court judge from five to seven.
This gave the elected officials greater ability to block candidates preferred by the judicial branch and more leverage to get the judges they liked elected to the court. At the same time, it created a balance of power on the committee for Supreme Court appointments.
Constitutional scholar Dr. Guy Lurie of the Israel Democracy Institute says that politicians at the time of the 1953 legislation felt that political and party considerations weighed too heavily in the selection of judges, and there was a sense that the judges were not sufficiently independent from political control.
“There was a wide consensus for the need to protect the judges from influence of the government,” said Lurie, noting that Menachem Begin, the leader of the Herut party, the forerunner of the Likud, who was in the opposition, wanted an even greater number of legal professionals on the committee than was eventually decided.
“Since the 2008 change in the rules,” however, Lurie noted, “we have a more diversified Supreme Court: As Shaked said, she managed to create a conservative revolution on the Supreme Court.”
“She did so with the current selection committee, and this type of balance on the committee allows the government and the coalition to have a say in the process, and ensure democratic legitimacy without giving up on professional considerations.”
The reform proposals, for and against
Dr. Adam Shinar of Reichman University, another expert on constitutional law, said that giving politicians a greater influence over the selection committee, as now proposed by the government, could in theory be reasonable. But he pointed out that under the terms of the current planned legislation the government and coalition would control almost every committee member, with just one going to the opposition.
Courts are not meant to be a mirror of power, they are meant to be a check and balance to executive power
In such a situation, a lower court judge seeking promotion might plausibly think that the way to career advancement is to rule more in accordance with the ideological slant of the selection committee, noted Shinar, compromising the independence of the judiciary.
As other critics have argued, it would also give the serving government the ability to pack the High Court in particular with judges who share its ideology without any input from the opposition or the judiciary, thereby politicizing the court to a degree that has not been seen since the infancy of the country.
“Politicization can be fine, but giving it all to the political majority is a problem since it simply mirrors the existing power relations,” said Shinar. “Courts are not meant to be a mirror of power, they are meant to be a check and balance to executive power.”
But Rothman has rejected this critique, insisting that many democratic countries use a system for selecting judges to constitutional or supreme courts which is dominated by the government or parliament.
“This is the situation in almost every democratic country,” insisted Rothman in a recent interview with The Times of Israel, arguing that the judicial selection method as it stands allows judges too much power over the composition of the judiciary.
“The system today gives the entirety of the public in Israel a minority in the committee, which is unheard of. It’s really unheard of for unelected officials to have this kind of power, to have a self-perpetuating court. In almost every other democratic country, the system gives the power to the ruling majority to appoint judges,” said Rothman.
“If you talk about Canada, the prime minister appoints judges. [Politicians appoint the judges, too,] if you talk about Ireland, if you talk about Sweden, if you talk about Norway, Australia and New Zealand… I can go on like that all day,” Rothman continued, and referenced the US as another similar example.
Critics, including MKs in the Knesset Constitution, Law and Justice Committee such as Labor MK Gilad Kariv, have pointed out, however, that the countries cited by Rothman have several layers of checks and balances against executive and legislative power, which serve as a counterweight to the more politicized court that would result from a Judicial Selection Committee dominated by government appointees.
All the countries Rothman mentioned in his Times of Israel interview either have a written constitution or a bill of rights which explicitly detail the fundamental rights of citizens in the country.
In addition, supreme or high courts in all the countries cited by Rothman have the power of judicial review to strike down legislation deemed incompatible with fundamental rights enlisted in the constitution, apart from Australia, where there is no judicial review over legislation, and New Zealand, where the courts can make declarations of inconsistency against legislation.
Along with the changes to the Judicial Selection Committee, the government plans to radically restrict the High Court’s powers of judicial review and at the same time refuses to provide constitutional protections for fundamental civil rights such as the right to vote, the right to equality, freedom of expression and others.
Attorney Ze’ev Lev, the legal adviser to the conservative Movement for Governability and Democracy organization founded by Rothman, argues, however, that the reforms to the judicial selection committee are less radical than they seem.
Lev says that simply because the coalition has a majority on the judicial selection committee does not mean it votes as a bloc, and noted that the coalition representatives on several recent judicial selection committees have come from differing places on the political spectrum and have not necessarily been in agreement.
“Former justice minister Avi Nissenkoren had arguments among the coalition members of his committee,” noted Lev, in reference to the committee formed during the short-lived 2020-2021 national unity government of the Likud and Blue and White.
In the subsequent Bennett-Lapid government, “the committee headed by former justice minister Gideon Sa’ar had a coalition member from the Labor party,” continued Lev, noting Sa’ar’s strongly right-wing credentials. “And former justice minister Ayelet Shaked had a Kulanu MK on her committee,” he added, noting Shaked’s right-wing stance and the now defunct Kulanu party’s more centrist positions.
“On the other hand, the judges on the committee have almost always voted as a bloc,” he said. “So you can’t look at the coalition as one entity. You will always have arguments on every committee.”
Lev conceded that, should the committee be restructured as the coalition’s legislation proposes, the judges who sit on the committee will likely reflect the ideological outlook of the justice minister who appoints them. But he asserted that, unlike the coalition MKs on the panel, they would be more independent since they could not be removed from the committee once appointed.
The arrangements put in place by the Knesset in 1953 for selecting judges have lasted for seven decades but now appear on the brink of radical overhaul.
Rothman’s legislation has already passed its first reading, and barring a sea-change in the government’s willingness to hear compromise proposals, the way judges are chosen in Israel will very soon look extremely different.
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