Analysis

Wrangling over nominations for judicial selection panel strains overhaul talks

Coalition faces rogue candidates, as opposition says it won’t stay at the negotiating table unless it gets its traditional seat on the committee

Carrie Keller-Lynn

Carrie Keller-Lynn is a former political and legal correspondent for The Times of Israel

Likud MK Nissim Vaturi joins supporters of former Border Police officer Orian Ben Khalifa, who was accused of assaulting a Palestinian woman in Jerusalem's Old City, in a protest outside her hearing at the Jerusalem Magistrate's Court, May 2, 2023. (Yonatan Sindel/Flash90)
Likud MK Nissim Vaturi joins supporters of former Border Police officer Orian Ben Khalifa, who was accused of assaulting a Palestinian woman in Jerusalem's Old City, in a protest outside her hearing at the Jerusalem Magistrate's Court, May 2, 2023. (Yonatan Sindel/Flash90)

Next week’s scheduled election of two lawmakers to the country’s panel for judicial appointments has put pressure on the ongoing negotiations over the government’s contentious plans to remake the judicial system, as well as straining cohesion in the opposition and now, also, in the ruling coalition.

The election of the Knesset’s two representatives on the nine-person panel is scheduled for June 14.

Sources close to Prime Minister Benjamin Netanyahu and official statements emanating from his office stress that no final decisions have been made, neither on whom the coalition will nominate to the panel nor on whether the opposition will get one of the two available seats, as has been custom.

But two rogue nominations from the premier’s own party indicate that the coalition is not immune to the tension.

On Monday, two of Likud’s junior lawmakers — MKs Nissim Vaturi and Tally Gotliv — submitted themselves as candidates to the Knesset secretary, in what sources close to Netanyahu said were uncoordinated initiatives.

Further complicating the matter, party MK Moshe Saada is also mulling joining the race before nominations close, according to a spokesperson for the lawmaker.

“Any MK from the coalition or from the opposition may submit his candidacy until this Wednesday and may withdraw his candidacy until next Wednesday,” Netanyahu’s office said pointedly in response.

Their names were submitted alongside two nominees from the far-right Otzma Yehudit party, which had been promised a representative on the nine-member Judicial Selection Committee in its coalition deal with Likud.

Prime Minister Benjamin Netanyahu leads the weekly cabinet meeting in Jerusalem on May 28, 2023. (Yonatan Sindel/Flash90)

Yet the battle over the posting itself may prove pointless, as the coalition is threatening to not convene the committee in its current form, and remains poised to rapidly pass legislation to change its composition.

The Judicial Selection Committee is central to the coalition’s plan to weaken judicial checks on political power. The current makeup of the committee, which includes representatives of the Knesset, the Supreme Court and the Israel Bar Association, means a judge has to be widely approved to be appointed.

Legislation to give politicians near-complete power to appoint judges alone was paused in late March, hours away from its planned finalization, amid burgeoning public protests, strikes and threats of civil disobedience.

Ensuring more political control over the selection of judges is Justice Minister Yariv Levin’s top priority, and is cited by both the coalition and the opposition as a key sticking point in their ongoing attempts to find a negotiated solution to the judicial reforms, amid 22 weeks of sustained protest against the plan and continued pressure within the coalition to move it forward.

With the legislation paused, elections for the two parliamentary representatives in the current makeup of the committee are moving forward. But the matter could become moot if the frozen bill is passed.

A Likud source close to Levin said Tuesday on: “Yariv doesn’t care about one versus two coalition MKs [for the current committee]. What is important to him is to pass the legislation.”

Yet, Netanyahu continues to dangle the possibility that the coalition will take both of the MK spots on the committee, leaving none for the opposition, in part to force progress at ongoing negotiations hosted by President Isaac Herzog.

On Monday evening, his office released a statement explicitly drawing a link between progress in talks and the makeup of the committee.

“Coalition representatives are working in every way possible to reach agreements at the President’s Residence. As long as agreements are reached, there will be one representative from the coalition and one representative from the opposition on the Judicial Selection Committee,” the Prime Minister’s Office statement read.

Likud MK Tally Gotliv speaking at a hearing of the Knesset Constitution, Law and Justice Committee, February 20, 2023. (Yonatan Sindel/Flash90)

Over the past two weeks, coalition negotiators and Hebrew media have reported ostensibly imminent preliminary agreements, either on delineating the principles guiding the talks or to tackle two less contentious issues — limiting the judicial test of “reasonableness” against government decisions and allowing ministers to choose their own legal representatives.

But the opposition has been adamant that it would not agree to a partial deal, especially one that does not put the judicial appointments issue and the rest of the coalition’s broad judicial plan to bed.

Opposition leader Yair Lapid said Monday that there is a lack of trust between the camps, and on Tuesday renewed his call to convene the Judicial Selection Committee in its current format, in an interview with Army Radio.

Fellow opposition party chief Benny Gantz last week implied he would withdraw from the talks if the coalition staffed the committee exclusively with its own members.

National Unity party leader Benny Gantz speaks during a faction meeting at the Knesset in Jerusalem, May 15, 2023. (Yonatan SIndel/Flash90)

With less than two months to the end of the Knesset’s summer session, seen as a potential deadline for tangible progress either on compromise reform talks or the coalition moving forward with legislating the shakeup on its own, the naming of those two MKs who will serve on the committee has become an issue that might force a resolution or enable the parties to disengage from compromise talks with plausible excuses.

Next week, coalition party heads are expected to meet to make a decision on the number of candidates to run – one or two — according to a Likud source close to the issue.

How can rogue candidates affect coalition strategy?

Usually, the coalition and opposition agree in advance on the identity of candidates, and only the two agreed-upon individuals remain on the ballot by voting time in order to guarantee the results in the anonymous contest.

Vaturi and Gotliv unilaterally submitted their candidacies on Monday, and as Netanyahu’s office made clear shortly thereafter, can pull their nominations before the June 14 vote.

Vaturi, however, said on Tuesday that he believed himself to be a “serious contender” and would not easily back down.

“They need to convince me that there is another worthy candidate,” he said to Army Radio.

Otzma Yehudit MK Limor Son Har-Melech attends a debate in the Knesset plenum, November 22, 2022. (Olivier Fitoussi/Flash90)

Otzma Yehudit submitted two candidates: MKs Yitzhak Kreuzer and Limor Son Har Melech. Likud sources close to the issue said they expected one of party leader Itamar Ben Gvir’s picks to be chosen by the coalition, in line with political promises made in December. Kreuzer is Otzma Yehudit’s frontrunner, but given the requirement to choose at least one female MK to the panel, the party also put forward Son Har Melech as the other candidates are still up in the air.

“We believe that the judicial system has to work according to the values of Judaism and Zionism,” Kreuzer said to Army Radio on Tuesday morning.

If Vaturi and Gotliv stay in the race, they may draw votes away from either one of the far-right picks or an opposition candidate, potentially skewing the math in an anonymous vote.

The opposition had been similarly poised until Wednesday to potentially bungle its own chances to secure a seat on the panel. For the past two weeks, the camp has squabbled over which candidate to field for the seat. On Wednesday Gantz’s National Unity and Labor both announced they would pull their candidates, making way for Yesh Atid’s Karine Elharrar.

How might the issue become moot?

Levin, as justice minister, oversees the panel, and he has threatened that he may not convene it at all so long as it remains in its current pre-reform state.

This would mean costly delays to the roughly 80 appointments that must be made — including two upcoming Supreme Court vacancies.

In the Judicial Selection Committee’s current construction, four seats are held by politicians and five seats are held by professional representatives from the judiciary and Israel Bar Association. Among the politicians sit the justice minister, another cabinet member and two lawmakers.

A supermajority of seven of the nine panel members is required to approve a Supreme Court pick, and a simple majority of five for lower court judges, meaning that the coalition cannot force through selections even if it took both of the seats reserved for MKs (although such a construction would deny the opposition any ability to influence the discussion).

According to the legislation that was close to passing in late March before Netanyahu froze it to allow for talks, the Judicial Selection Committee would be expanded from nine to 11 members. The coalition would have control over the first two Supreme Court appointments to open up in any Knesset term. Lower court appointments would require seven out of eleven votes, with the coalition holding six of those seats directly.

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