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Should Israel’s top judges be ideologically aligned?

In a speech on the evening of March 23, 2023, after mass disruptions (a ‘Day of Paralysis’) were held throughout Israel, Prime Minister Bibi Netanyahu stated that his government was, “determined to responsibly advance a reform that will bring back the correct balance between the branches [courts & legislature] and provide a solution to address the concerns of all the parties involved.” He said the reform would end decades of what was the High Court of Justice “unilaterally taking on authority and ending the lack of proper representation among the judges,” as well as bolstering the rights of all citizens and minorities. Bibi’s intention is to continue only – at this time – to pass its proposal for the Judicial Appointment Committee, which would address the method of choosing new justices and eliminating the ability of the sitting justices to veto candidates with opposing political leanings. 

Critics of this change argue that the government is attempting to pack the court with conservative, right-wing judges, politicizing the Court and destroying democracy. I’m perplexed by these arguments. The system of selecting judges was never written on stone and cries out for reform. Yes, the justices would be chosen substantially by the party in power. But the current system allows, “a friend [sitting justice] to bring a friend [a new, similarly-minded justice]. Certainly that’s less democratic than the most recently elected legislators choosing justices.

Yes, the proposed changes are more political, but so what? No other country selects its justices by Israel’s current, clearly undemocratic process. The current proposal would bring Israel’s court nearer to the system of justice selection used in the US, Canada, and New Zealand. Is that so bad? In fact, many of the opponents claim they will leave Israel if this legislation passes. Ironically, many would seek to move to the US, Canada, or New Zealand. Ironically, many American Jews and others are fighting the proposed changes. Alan Dershowitz, a recognized legal expert, dislikes the idea that the proposed justice selection change would make Israel more like the US, Canada, and New Zealand. Nevertheless, he isn’t opposed to some reform. 

As a matter of fact, in Israel justices are changed much more frequently than in the US, due to the 70-year retirement age. In the US, a justice is on the highest court for life! Not only that… governments change here, on average, every two years, giving the new government its chance to make their own changes. 

I believe that most of the demonstrators haven’t an inkling of what they are protesting about. It’s a very political movement motivated by the “elite” sections of Israeli society to keep their power. Like the 1977 shift of government from the elite, Labour Party apparatus, the current proposed change by the more nationalistic and religious government is a consequence of demographic alterations in Israeli society.

Israel is in the throes of a serious challenge to the ruling coalition which won the November 1, 2022 election. Now those disgruntled voters who lost the election (they style themselves the “Resistance”) have been weaponized by the opposition parties and the mass media. Even other Western governments, where politicians choose the top court’s members, are upset by the much needed reform of Israel’s High Court. The opposition’s objective: to leave “justice” in the hands of Israel’s anointed, “morally superior” elite. The government intends to pass the justice selection law now and tackle other aspects of governance sometime after the Passover holiday.

The Knesset currently has little say in approving the High Court’s new appointees. 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. A new justice must be approved by at least seven out of nine of the appointments committee’s members. Two members of the committee can reject a candidate. Typically the three High Court justices vote for someone who is an individual who would fit in with their group. The justices can effectively blackball any candidate who doesn’t match up.

“The [government’s] amended proposal would give a governing coalition full control over the first two appointments to the Supreme Court which open up during its tenure but require the support of one opposition member for a third appointment, and the support of both an opposition member and a judicial representative for a fourth. The proposal would also change the Supreme Court presidency appointment process, to allow the coalition to appoint the chief justice, further boosting its control over the appointment of justices to the High Court and potentially giving it full control over appointments to lower courts.” (https://www.timesofisrael.com/likud-backs-new-proposal-to-assert-control-over-judicial-selection-committee/)

The leaders of the opposition parties, especially Yair Lapid and Benny Gantz, have loudly opposed ANY change and have declined to negotiate with the ruling coalition. (They were in favor of alterations to the Court until the current government raised them.) Worse, they and the media have influenced great numbers of people to demonstrate against ANY change to the existing setup, nixing negotiations while vehemently discrediting Israel’s democratic processes and Israeli society in general, causing economic panic and more.

Change to the High Court is not unprecedented. The original High Court framework had hardly changed since Israel’s independence until the 1990s. Its transformation began in the decade when Justice Aharon Barak joined the Supreme Court, becoming its president in 1995. Until then, Israel appropriately had an independent judiciary that served as a check on government power while avoiding judging the substance of administrative actions, intervening only when a government agency exceeded its legal authority. 

But by 2005, Aharon Barak had created an entirely new world of jurisprudence for Israel that empowered a judicial-bureaucratic complex to veto government policies based on the justices’ progressive worldview. Barak’s changes to the court’s selection of justices and much more were made the law after a few minuscule votes in the Knesset of less than 40 Knesset members (far from a majority of 61) approving the changes. No one at the time realized the judicial earthquake that Barak had initiated. 

The ongoing refusal of the opposition to negotiate is not how representative, democratic governments expect to work. Members of Knesset propose legislation, which is then subject to three hearings and votes before a law is passed. Contentious bills are thus subjected to rigorous examination and debate before being accepted or rejected. Often there are changes made before the third and final vote. But not this time, because the opposition is “sitting it out.”

The current debacle is like a championship game where only one team shows up. Of course that team expected to be contested on the field. In this case, the opposition parties are contesting the proposed legislation outside of the Knesset and on the streets. But, much worse, the leaders of the opposition have made this into a life or death struggle, supposedly (but not factually) for Israel’s democratic system of government. Their strident comments are broadcast throughout Israel and around the world, inviting other governments to weigh in on Israel’s internal affairs. The Biden administration in particular has become a most significant opponent of Supreme Court alterations, putting its considerable weight against Prime Minister Netanyahu’s government.

One of the major organizations behind the protests is Israel’s Movement for Quality Government (MQG). Public Israeli records show that this organization has received over $38,000 in funding from the US State Department. (Meddling anyone?) MQG is primarily funded by the New Israel Fund, a US NGO that financially supports many anti-Israel organizations which promote a narrative portraying Israel as an apartheid state. In addition, American government leaders have spoken out against the proposed changes here. What’s the most ironic aspect of this affair? That other Western democracies, especially the US, object to the partial politicization of Israel’s High Court, a change which pales in comparison to the utterly political US court. 

The Israeli bar opposes the reforms, saying, “They can’t fool us. Any attempt to touch the judicial selection committee has only one aim: to choose judges who will be puppets of the government.” Unfortunately, governments change with rapidity in Israel.

Opposition leader Yair Lapid called the new proposal “a framework for a hostile political takeover of the judicial system,” while Labor party chief Merav Michaeli said that “controlling the Judicial Selection Committee is bringing destruction to democracy … [the government is] trying to topple the foundation of democracy. We cannot stop the protests. We cannot allow this hostile takeover.” So, stop pontificating and start the process of negotiations!

The so-called “nonpartisan” Israel Democracy Institute think tank rejected the coalition’s new initiative, calling it “a blatant attempt by the Netanyahu government to control the Judicial Selection Committee and turn the Supreme Court into another political branch of the government — the exact opposite of the principle of separation of powers.”

In contrast, the government is mandating change from the current system which selects people for their loyalty to the establishment, which has run or influenced the most important institutions of the government ever since before Israel’s independence. That establishment is still in charge of many of Israel’s most important institutions, despite the vast changes in Israel’s very diverse demography. Having a High Court mostly influenced by a three-generation, European-descended group no longer fits Israel’s demography. There is only one Arab and one Sephardic judge on the Court. 20% of Israel’s population are Arabs and Israel’s majority is now of non-European descent. 

The government intends to pass this singular part of their plan, justice selection, before the upcoming Passover holiday, leaving the remainder for the future. We will soon know the result. Ironically, the proposed changes can easily be rolled back by the next government, just like the judicial changes of the 1990s are subject to change. Does the opposition really think that it will never again have the ability to effect change? Past election results cast doubt on that outcome. If the passage of the selection committee changes alone doesn’t cause the sky to fall in, one hopes that reason will be restored and a spirit of compromise will emerge.

About the Author
Steve Kramer grew up in Atlantic City, graduated from Johns Hopkins in 1967, adopted the hippie lifestyle until 1973, then joined the family business for 15 years. Steve moved to Israel from Margate, NJ in 1991 with his family. He has written more than 1100 articles about Israel and Jews since making Aliyah. Steve and his wife Michal live in Kfar Saba.
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