https://www.lawfareblog.com/fight-over-judicial-appointments-israel
The Fight Over Judicial Appointments in Israel
Editor's note: click here for part one in this series on the sweeping legal and judicial reforms proposed by Israel's new government, and here for part two.
Since 1953, judicial appointments in Israel have been made through a Judicial Selection Committee in which legal professionals—judges and lawyers—are in the majority and politicians in the minority. The new Israeli government’s plans for legal reform turn this system on its head and allow the coalition to fully control appointments to all parts of the judiciary, thus consolidating its dominant position in all three branches of government.
The “constitutional revolution” of the 1990s, and the turn to a more robust application of Israeli administrative law in the 1980s, has resulted in a significant empowerment of the Israeli judiciary. In less than two decades, the Supreme Court did away with standing requirements in most petitions against the government, holding that every petitioner has the right to demand that the government follow the law. The Court narrowed considerably its doctrine of nonjusticiability (the political question doctrine), instead taking the position that almost any question relating to government action or inaction can be evaluated on the basis of legal criteria. It expanded the test of reasonableness—according to which governmental measures that rely on irrelevant considerations, fail to rely on relevant considerations, or assign clearly inadequate weight to competing considerations—can be struck down by the Court. And it construed the “basic laws” of 1992 (which can be found here and here) in a manner that gave it the power to strike down Knesset legislation.
These developments have all been justified by the Court as legal tools needed to improve the protection of human rights, the rule of law, and governmental accountability in Israel, mirroring parallel developments in other liberal democracies. Whether justified or not, they have clearly changed the balance of power between the judicial branch and the other two branches of government.
The increased power of the judiciary and its growing engagement with politically sensitive issues—the exemption from military service of ultra-Orthodox young men, segregation of Jews and Arabs in access to community villages, removal of West Bank settlements from Palestinian private land, and measures designed to deport African “infiltrators” (in other words, asylum-seekers who have entered Israel illegally)—has led to increased criticism of the Court’s ideological direction and composition.
The Court’s critics allege that the composition of the Supreme Court displays a tilt toward liberal values and “leftist politics” and that, as a result, its decisions can be regarded as politically motivated and out of step with the Israeli public’s tilt to the right. Such critics have sought reforms in the appointment process to render the court more ideologically diverse. As discussed below, the recent proposals by Minister of Justice Yariv Levin and Knesset Constitution, Law and Justice Committee Chair Simcha Rothman go beyond past attempts to diversify the Supreme Court. Rather, they would allow the parties in the governing coalition to control judicial appointments—a development that will likely have serious repercussions for Israel’s democratic checks and balances.
History of the Judicial Appointment Process
The origins of the Israeli judicial system lie with the judicial system founded by the British Mandate authorities that governed Palestine (in Hebrew, “Eretz Yisrael”) from 1917 until 1948. The system comprises a pyramid with a single apex. At the most basic level of the judicial system are justices of the peace or magistrates, who possess jurisdiction over civil claims of less than 2.5 million NIS (approximately $750,000) and over criminal offenses for which the maximum penalty does not exceed a seven-year prison sentence.
Currently, there are more than 500 judges of the peace in 29 courts of the peace. Appeals on decisions by these courts are submitted to six district courts, where almost 200 judges serve. Such courts also have original jurisdiction over all major civil and criminal cases. The Supreme Court, which currently consists of 15 justices, deals with appeals of decisions of the district courts.
What makes the Israeli Supreme Court unusual is that it also sits as a High Court of Justice and has in this latter capacity original jurisdiction over most administrative law issues (that is, petitions submitted against the government). Some specific administrative law issues have been delegated over the years to district courts, with the Supreme Court retaining appellate jurisdiction over them, but for most legal issues, challenges to government action go directly to the Supreme Court. The Israeli system also includes religious courts with jurisdiction over personal status and labor courts. These too are subject to judicial control by the Supreme Court.
In September 1948, just a few months after the state of Israel declared its independence and while it was still engaged in its War of Independence, Israel formed its first Supreme Court. The court’s first five judges—all Jewish male immigrants from Europe—were elected by Israel’s government and Knesset largely in accordance with their political or religious affiliation: Two members were affiliated with the ruling Mapai party (the historical antecedent of the current Labor Party), a third member represented the “General Zionist” centrist party, and the fourth was a religious scholar who was not licensed to practice law. Only the fifth member was not clearly politically and/or religiously affiliated and served as a professional judge in the district court under the British Mandate. No supporters of the right-wing and extreme-left opposition parties were appointed to the first Supreme Court; neither were any Arab citizens of the state.
In 1953, the Knesset passed the Judges Law. It created a nine-member Judicial Selection Committee, which still exists today. The committee includes two government ministers (one of whom is the minister of justice, who also serves as chair of the committee), two members of the Knesset (one of the two is often, but not always, a member of the opposition), three justices of the Supreme Court (one of whom is the president of the Supreme Court), and two members of the Israeli Bar Association. This composition was designed purposefully to ensure that legal professionals (judges and lawyers) would have a majority in the committee, thereby limiting the influence of the government over the composition of the judiciary. Indeed, in the discussions in the Knesset regarding the adoption of this law, Yaakov Shimshon Shapira—the then-chair of the ruling coalition in the Knesset—who played a key role in formulating the Judges Law stated:
The Government, by its free will, gave up the authority it now has … and in fact transferred it to a Committee in which the majority is not of the governmental majority or its supporters.
Three relevant changes to the committee’s working methods have been introduced in the past 20 years. Two of these amendments were made in the 1984 Courts Law and Basic Law: The Judiciary, which replaced the 1953 Judges Law. The first of these amendments, from 2004, provides that members of the committee will vote according to their own personal discretion and would not take instructions from the institutions that nominated them to the committee (the Knesset, the government, the Israel Bar Association, and the Supreme Court). This amendment was mostly targeted against the practice of the three Supreme Court members of the committee to vote en bloc on the basis of instructions received from the Court as a whole. The second amendment, from 2008, stipulates that justices of the Supreme Court will be chosen by a seven-member majority, effectively creating a two-way veto over such appointments to the coalition, which controls at least three seats on the committee, and the three Supreme Court justices. Under the current rule, any appointment needs to be acceptable to at least one member in these two voting blocs. A third change to the internal procedures of the committee, adopted in 2022, provides that interviews held by members of the committee with candidates for the Supreme Court are to be recorded and be made publicly available online to increase the transparency of the appointment process.
Assessment of the Existing System
In most legal systems, the appointment of judges involves a balancing act among judicial independence, accountability, and representativeness, all of which are essential for the rule of law, public trust, and legitimacy. The appointment system in Israel provides for a high degree of independence and professionalism of the judges and features some degree of accountability to the political branches. It is lacking, however, in terms of representativeness (as explained below). And critics allege that dominance of legal professionals on the Judicial Selection Committee results in the selection of judges from the legal mainstream and the rejection of candidates with other backgrounds and views.
The demographics of the Supreme Court arguably underscores this latter point: Of the 76 justices who have served as permanent members of the Supreme Court, 39 have been Jewish secular men, from Ashkenazi (Western) origins. This subgroup now composes less than 20 percent of the population of Israel.
Still, in recent years, these demographics have changed, so as to include justices of more diverse backgrounds. The number of religious justices on the Supreme Court has grown, and there are currently three justices of a religious Zionist background, although religious Zionists compose only around 10 percent of the Israeli population. There are also six women on the Court, including the current president of the Court, Justice Esther Hayut.
Three population sectors remain seriously under-represented however: There are only two justices of Mizrachi origin (whose families immigrated to Israel from North Africa or Asia), despite this group representing approximately 40 percent of Israel’s population. There is only one Arab justice, even though that demographic makes up 20 percent of the population. And there are no ultra-Orthodox justices, notwithstanding the fact that around 10 percent of the Israeli population belongs to that community. It may be noted, however, that the under-representation of the ultra-Orthodox on the Supreme Court stems, at least in part, from the fact that this community has traditionally opposed education in secular disciplines such as law.
Still, most of the criticism directed at the composition of the Court has been directed not at its lack of ethnic and gender diversity but, rather, at its alleged ideological homogeneity. Critics claim in this regard that the dominance of Supreme Court justices on the Judicial Selection Committee results in the blocking of any nominee who could potentially challenge the dominant activist tendencies and liberal ideology of the Supreme Court.
Historically, this argument might have some truth to it. Indeed, a number of prominent non-mainstream candidates from academia have been rejected by the justices and were not elected. But it is certainly not the case in recent years, after politicians became more interested in the composition of the Court and following the 2008 changes in the appointment system. For example, between 2015 and 2019, Minister of Justice Ayelet Shaked appointed four conservative or conservative-leaning justices to the Court (out of the six seats that became vacant during her tenure). Of the 15 current justices, four are considered conservative and two are conservative leaning. Of the remaining nine justices, eight are considered liberal or liberal leaning and one recently appointed justice has yet to reveal his ideological leanings. Moreover, the next three judges expected to retire at the mandatory retirement age of 70 are liberal or liberal-leaning justices, a development that is likely to render the Court—which is already more conservative leaning than it was a decade ago—even more conservative in its orientation. Arguably, this development illustrates that, despite the dominance of professional lawyers in the judicial appointment process, changes in the political map in Israel do manifest themselves ultimately in changes in the Court’s composition.
Notwithstanding criticisms that the Supreme Court lacks sufficient ethnic, religious, and ideological diversity and that the role of the justices in the appointment process is tantamount to “judges appointing themselves,” the Supreme Court has enjoyed over the years a high degree of public trust (reaching a peak of almost 80 percent of Israelis professing trust in the institution in 2004), especially when compared to the political branches of government. Yet public trust in the Supreme Court has declined in recent years. In 2022, public trust in the Court was only at 41 percent. (It is important to note, though, that trust in political institutions is considerably lower than that.)
One should probably attribute some of this decline to the growing attacks on the Supreme Court by mostly right-wing politicians. Indeed, the decline in trust is especially evident among Israeli right-wing voters (only 26 percent of whom profess to trust the court). A number of high-profile scandals involving senior officials in the Israel Bar Association—who have influence on the representatives of the Bar in the Judicial Selection Committee—might have also contributed to a perception that the judiciary is in need of reform.
Ultimately, however, it is the deep dissatisfaction of conservative politicians with liberal tendencies on the bench and the judicial activism of the court itself that are the main drivers for the proposals for reforming the Judicial Selection Committee. And while some reform may be appropriate, the radical nature of the proposed changes and their adverse impact on judicial independence renders the proposed fix much worse than the problem it purports to solve. Indeed, the proposed reforms relating to the judicial appointment system are, in our view, the most dangerous of all of the proposals for reforming the Israeli judicial system that are currently on the legislative table.
The New Proposals
Two sets of proposals to change the composition of the Judicial Selection Committee have been put forward so far. The first set of proposals was published by Minister of Justice Levin on Jan. 11, and the second by Knesset member Simcha Rothman, chair of the Constitution, Law and Justice Committee, on Jan. 18. The two proposals have a common principle: They both seek to change the composition of the Judicial Selection Committee from one in which the majority of members are legal professionals (judges and lawyers) to a committee controlled by the ruling government coalition.
According to Levin’s proposal, the committee would include two “public representatives” selected by the minister of justice, instead of the two members of the Israel Bar Association (over whose identity the government currently has no influence). In addition, the committee would be enlarged to include two additional members—another government minister and another member of the Knesset. The new committee would therefore consist of 11 members—three Supreme Court justices, three government ministers, three members of the Knesset (two from the coalition and one from the opposition), and two public representatives. Seven members out of the 11 would therefore be controlled directly or indirectly by the ruling coalition—a majority large enough to appoint justices to any court, including the Supreme Court. Once the coalition is able to appoint Supreme Court justices and the president of the Court (see below), they might even be able to secure the nine votes required for the dismissal of serving justices.
Rothman’s proposal seems at first to be less radical, but, in effect, it would achieve the same result. He suggests replacing the two members of the Bar on the committee with an additional government minister and an additional member of the Knesset. According to his proposal, the three members of the Knesset on the committee would be the chair of the Constitution, Law and Justice Committee, who is a coalition member, and another member of the coalition and the opposition. Rothman also suggests changing the representation of the judiciary on the committee. Whereas currently there are three justices of the Supreme Court—the president of the Supreme Court and two justices elected by all the justices of the Court—the new proposal envisions that the three representatives would include the president of the Supreme Court and two retired judges appointed by the minister of justice with the consent of the president of the Supreme Court. To the extent that the coalition is able to secure the appointment, under the new appointment process, of a Supreme Court president sympathetic to its ideological positions, they may control directly or indirectly eight out of the nine seats on the committee.
Levin also proposes discarding the current informal “seniority rule,” according to which the president of the Supreme Court is the longest-serving justice on the Court at the time of his or her predecessor’s retirement. Levin proposes instead that all presidents will be elected by the committee (with the support of seven votes out of 11) for a nonrenewable period of six years. Candidates for president need not have served before on the court over which they will be appointed to preside. This matter is not addressed in Rothman’s proposal, but it is likely that he will support Levin’s position, which creates another avenue through which politicians can reward or punish judges.
Proponents of the change in the appointment procedure rely on a comparative study conducted in 2019 by researchers of the conservative think tank Kohelet Forum. According to this study (which surveyed all Organization for Economic Cooperation and Development member-states), courts with the authority for judicial review of legislation—supreme courts or constitutional courts—are almost always selected solely or mostly by politicians. They claim that when Israeli politicians gave up their authority to nominate judges in 1953, the judges were not heavily involved in adjudicating ideological issues and certainly had no power of judicial review of legislation. They maintain that if the judges now have this authority, then politicians should have the authority to nominate such judges.
Opposition to the proposals is based on several grounds. First, researchers from the Israel Democracy Institute (IDI) disputed the methodology and conclusions of the Kohelet study. Comparing the Israeli Supreme Court, which is first and foremost an appeals court, to the constitutional courts included in the Kohelet study is a mistake, the IDI researchers argued. Second, the Kohelet study asked whether politicians control the judicial appointment process. But the crucial question is which politicians control the process—specifically, whether the ruling party or coalition controls the judicial appointment process. Assessing judicial appointments from this perspective reveals that in most countries there are some limitations on the power of the party in power in the executive branch to appoint judges. In Germany, for example, the Bundestag and Bundesrat appoint judges to the Constitutional Court by a two-thirds majority, which requires some support from opposition parties (and thus results in an ideologically diverse court). In the United States, the executive branch nominates federal judges, but they must be approved by the Senate, which is often in different political hands. Moreover, many countries that allow the executive to nominate judges rely heavily on professional advisory committees that suggest suitable candidates for consideration of the politicians (see, for example, Japan and Canada). In the United Kingdom, a professional committee composed of judges, lawyers, and laypeople vets the candidates appointed by political decision-makers, giving professionals on the committee effective veto power on judicial appointments.
Still, the main criticism directed at the Levin and Rothman proposals focuses on the severe implications for Israeli democracy, as it is currently institutionally configured, of a change of the judicial appointment system to one that provides the ruling coalition with absolute control over appointments to the Supreme Court and influence on proceedings for removal of judges. Bear in mind that, even before the proposed changes were suggested, Israel possessed no strong constitution and no robust legal guarantees for judicial independence (the ruling coalition can, under existing law, amend the Basic Law: The Judiciary by a simple majority, and will have the power—according to other pending proposals—to override it). Under these conditions, affording the government such a level of control over judicial appointments is extremely problematic, as it significantly weakens the one meaningful check on governmental power currently available. Moreover, other suggested reforms would weaken the authority of the Court to review legislation and government decisions—a change that incidentally undermines the government’s justification for changing the judicial appointment system (that is, that judges have too much power and exercise broad discretion in ideological matters). These reforms only add to the conclusion that the coalition aims to change the Court’s composition in a way that will, in effect, shield its powers from any form of effective judicial review.
The new suggestions are focused on the role of the Court in public law. Out of the 9,000 cases that are opened in the Supreme Court annually, approximately 80 percent are appeals of judgments of the district courts in civil and criminal matters. Among the cases dealing with public law, most are simple administrative law petitions directed against specific decisions of government officials. Only a handful of cases deal with important constitutional issues. The attempt to change appointments to the Supreme Court from a system based on professional capabilities to one based on ideological positions is also out of step with what the Court is expected to do. Moreover, even if there is some justification for taking into account a judge’s ideological position when considering appointments to the Supreme Court, the proposals do not differentiate between the Supreme Court and the lower courts, in which ideological issues are even more marginal. Political appointment of judges to the lower courts by a politically dominated committee runs counter to the current trend in democracies, which now tend to appoint judges to lower courts by professional committees.
Given that existing judicial appointment procedures might enable the government to secure a conservative majority on the Court, it is less than clear why such a radical reform is required. One possible answer is that the government simply wishes to quickly establish its control over the appointment process, perhaps with a view to limiting the ability of the Supreme Court to intervene in its short-term legal and policy initiatives. Another possible reason is that some members of the coalition believe that conservative justices who were appointed until now were not conservative enough and might not support a complete overhaul of judicial review in Israel.
Conclusion
If passed, the changes envisioned in the procedure for appointing judges, especially Supreme Court justices, would give the coalition complete control over all judicial appointments in Israel and undermine a central component of its existing system of checks and balances. The Israeli political system is a highly centralized one, and a very small number of politicians are able to steer government policy, have legislation passed, and even generate a change in Israel’s basic laws. Should these politicians also succeed in establishing their control over the judicial branch, as we believe that the Levin and Rothman proposals enable, the coalition would effectively face no limits on its political powers. Coupled with the other suggested reforms, that balance between the branches of government in Israel will be seriously disrupted. This may in turn lead the Supreme Court to consider whether the planned legal reforms constitute “unconstitutional constitutional amendments” that run contrary to Israel’s democratic foundations—a point on which we will elaborate in the final article in this series.
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