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Yedidia Stern

The promise and pitfalls of the latest judicial reform outline

The proposed changes in the selection committee for Supreme Court appointments could lead to a partisan 'race to the bottom'
Justice Minister Yariv Levin (right) poses with his predecessor Gideon Sa'ar during a meeting on January 1, 2023 (Michael Dimenstein/GPO)
Justice Minister Yariv Levin (right) poses with his predecessor Gideon Sa'ar during a meeting on January 1, 2023 (Michael Dimenstein/GPO)

The Levin-Sa’ar judicial reform outline deserves serious public and professional discussion. Unlike Levin’s original reform proposal, the compromise now on the table is cautious and measured. It calls for balance, as is appropriate.

Before we turn to the main course – the Judicial Selection Committee – it is important to note the proposed agreement regarding the principles of the “Basic Law: Legislation.” This, in my view, is significant news that could serve as a foundation for establishing a true constitution for Israel.

Unlike the existing situation, under the proposal, the subjects addressed by Basic Laws will be limited only to matters worthy of a constitution; a unique procedure will be established for their legislation, amendment, or repeal; and a non-coalitional majority will be required in all matters relating to them. Therefore, the proposal that the court will not be able to interfere with Basic Laws (except for election laws) is also appropriate, thus respecting the sovereignty of the people through its elected representatives.

As for ordinary legislation, the final word will remain with the Supreme Court, which will be able to nullify laws if they contravene basic laws. This will protect the public, especially minorities, from the tyranny of the majority, as required and necessitated by substantive democracy. The nullification of laws will occur only in cases where warranted according to the interpretation of a majority of the Supreme Court judges (8 of 15). This is a balance that respects the Knesset but does not grant the ruling majority absolute power.

Along with the praise, it is important to emphasize that the details of the proposed Basic Law are of crucial importance, and currently, they remain hidden from view.

How will the judges be chosen? This is the holy grail that has roiled Israeli society over the past decade and brought us to the brink of civil war. Two changes are proposed regarding the current composition of the committee, which is comprised of nine members: first, the replacement of two representatives from the Bar Association with two experienced lawyers, one to be chosen by the coalition and the other by the opposition. Second, the supermajority rule for choosing Supreme Court judges (7 of 9) will be changed so that only a simple majority of committee members (5 of 9) will be required.

The significance of the changes is that although the number of justices on the committee will remain the same (3 of 9), they will forfeit their veto power, and a judge can be added to the Supreme Court bench despite their opposition. This is both a symbolic and practical achievement for critics of the current situation. However, unlike previous proposals, the coalition alone will not be able to appoint Supreme Court judges, as it will not hold a direct or indirect majority in the committee (4 of 9). Consensus will be required.

The compromise proposal is not without problems. Since the coalition only needs one additional vote, it is likely that each camp will seek to entrench itself and appoint the extremists within its ranks to the committee. This rule of decision will lead to the appointment of lawyers to the committee who are not the most professional, but whose political-ideological loyalty is guaranteed. While the current rule of decision – initiated, at the time, by Minister Sa’ar – promised broad consensus appointments, and indeed the most recent appointments to the Supreme Court were reasonable, the proposed rule may create a “race to the bottom,” the possible outcome of which is the replication of political struggles in the Knesset within the Supreme Court, undermining the professional quality of the judges. It seems likely that the outline’s promise that “the professional majority in the committee will be maintained” will only be fulfilled formally, while in practice the prevailing factional ideology will be determinate.

Given Israel’s identity war and the ongoing arm wrestling for power, excessive politicization of the committee’s composition could pose a real danger. A possible amendment, which I proposed to Minister Sa’ar just last week, is to establish a six-out-of-nine decision rule so that the required consensus threshold will indeed be lower than the current one, but higher than what is proposed in the outline, thereby reducing the risk of extreme ideological appointments. Only a court not composed of numerous extreme voices will have the public legitimacy to nullify a law, as suggested in the outline.

The compromise outline also suggests that the selection of judges for the lower courts will be contingent upon the agreement of at least one representative each from the coalition, the opposition, and the judges. Granting veto power to any of the three parties over the appointment of any judge in Israel could prove to be a recipe for paralysis. There is no doubt that a change is needed here.

After all this, it is important to emphasize that the coalition is relinquishing the coercive approach that characterized its proposals thus far and is seeking balancing solutions. This is the right spirit for stabilizing Israeli democracy.

About the Author
Yedidia Stern is the president of the Jewish People Policy Institute (JPPI) and a professor of law (emeritus) at Bar-Ilan University.
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