With negotiations over new High Court president stuck, Levin gets 2-week extension
Justice minister seeking to either get a conservative Supreme Court chief justice by overriding seniority system, or parachute a judicial overhaul architect into the top court
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
The High Court of Justice on Sunday gave Justice Minister Yariv Levin another two weeks to seek a compromise over the appointment of a new Supreme Court president between himself and the rest of the Judicial Selection Committee, after Levin said discussions were “ongoing” but needed more time to bear fruit.
Sources have said, however, that the negotiations are at an impasseת with Supreme Court Acting President Uzi Vogelman, the head of the judiciary and the leading voice of the liberal bloc on the committee, unwilling to jettison the seniority system by which the most senior justice on the court becomes president, or countenance Levin’s arch-conservative candidates for one of the two empty seats on the court bench.
Last month, the High Court ordered Levin and the Judicial Selection Committee to work out a compromise, in the wake of the justice minister’s refusal to bring the appointment of a new president to a vote in the Judicial Selection Committee.
Levin does not want to see liberal Justice Isaac Amit assume the presidency of the court through the seniority system, which has been in use since the establishment of the state, and would like to have conservative Justice Yosef Elron appointed instead.
Since there is a majority on the committee for Amit, Levin has refused to call a vote, claiming that at a time of war, such a decision needs “broad agreement.”
In July during a hearing for a petition asking the High Court to order Levin to call a vote, the three justices presiding over the case expressed skepticism that Levin’s insistence on unanimity was still justified 10 months into the war, in light of the unprecedented length of time the Supreme Court has been without a president.
Previous court president Esther Hayut retired in October, at the same time as former justice Anat Baron. The court has been without a president and down two justices ever since.
At the end of the July hearing, the High Court told Levin to find a compromise with the rest of the Judicial Selection Committee over the issue and requested an update by last Thursday.
At the same time, the justices indicated that they may be inclined to issue an order to fill the presidency if a compromise is not reached.
Levin filed his update to the court on Thursday without asking for a specific amount of time in which to conclude negotiations. The court told Levin to file another update by August 26.
A well-placed source told The Times of Israel that Levin has made two proposals, neither of which Vogelman, who is negotiating through the head of the court’s administration, has been willing to accept.
One proposal is for Elron to get the presidency for one year, followed by Amit until he retires in three years.
Since the president of the court automatically sits on the Judicial Selection Committee this would give Levin another vote on that critical panel. The president of the court must also approve the appointment of district court and magistrate court presidents, meaning Levin would have much freer rein to appoint conservative judges to those positions as well.
Vogelman is reportedly insisting that Amit be made president per the seniority system.
As an alternative, Levin has proposed that Amit be given the presidency and in return, a candidate of his choosing be appointed to one of the two empty spots on the High Court bench.
Levin would like to see one of two hardline conservative academic legal scholars appointed to the Supreme Court — Dr. Rafi Biton or Dr. Aviad Bakshi.
Biton is a senior lecturer at Sapir College School of Law, while Bakshi is a lecturer in constitutional law at the Ono Academic College and head of the conservative Kohelet Forum think tank’s legal department. Kohelet and Bakshi laid the ideological foundations for the controversial judicial overhaul agenda to reduce the power of the judiciary that Levin pursued last year, and Levin cited both Biton and Bakshi as figures who helped him draw up that agenda.
Neither figure has ever served as a judge.
Vogelman has reportedly rejected this idea as well, saying the two lack relevant experience and are not candidates of sufficient quality for the country’s top court.
Complicating the matter further is that Vogelman himself will reach the age of retirement and be required to step down on October 6.
The candidacy of a new president must be submitted to the court 45 days before a vote can be scheduled.
Due to the somewhat vague wording of the 1984 Courts Law governing how judicial appointments, including of the Supreme Court’s president and vice president, are made, there is something of a doubt as to whether Amit would automatically assume the role of acting president.
Vogelman’s installation as acting president after Hayut retired was never in doubt since he was the designated vice president who the law explicitly stipulates automatically becomes acting president if no permanent president has been appointed.
But Amit has never been designated vice president.
Levin’s attorney said during the July 18 hearing that the justice minister is of the opinion that Amit would become acting president when Vogelman steps down.
Levin has not himself voiced such a position publicly, though, and an organization or other party could in theory file a petition to the High Court challenging Amit’s assumption of the role of acting president under these circumstances.
