The Knesset Constitution Committee began on Tuesday morning to prepare a new version of a bill to change the makeup of the Judicial Selection Committee, which is responsible for electing Israel’s judges. The committee was chaired by United Torah Judaism MK Yitzhak Pindrus, since the permanent chairman, Religious Zionist Party MK Simcha Rothman, traveled to the US for the inauguration of President Donald Trump.
The new bill is based on a joint proposal by Justice Minister Yariv Levin and Foreign Minister Gideon Sa’ar that was first presented on January 9 and is expected to pass into law by the end of February.
A previous version of the bill was a centerpiece of the controversial judicial reforms that led to social unrest in 2023.
The Judicial Selection Committee’s makeup since Israel’s foundation has included nine members – three High Court judges, two ministers, two members of Knesset (traditionally one coalition and one opposition), and two representatives of the Israel Bar Association (IBA).
The initial proposal would have given the governing coalition a majority in the committee, thus giving it the power to appoint judges on all levels as it saw fit. According to the new proposal, the two IBA members will be replaced by two lawyers, one appointed by the coalition and the other by the opposition.
According to the Levin-Sa’ar proposal, the majority necessary for high court appointments will revert back to 5-4 instead of the current 7-2. However, every High Court appointment will require the agreement of at least one representative from the opposition and one from the coalition. Appointments to all other judicial brackets will require approval of one member of the coalition, one from the opposition, and one of the judges.
Preventing a stalemate
The proposal also includes a mechanism to prevent a stalemate in High Court appointments. If a year passes with at least two vacancies, the coalition and opposition will each propose three candidates, out of which the other side must choose one (along with the judges). Finally, the law will only apply beginning with the next Knesset.
The initial bill was approved for its second and third readings in March 2023, but was frozen after mass protests broke out in the wake of former defense minister Yoav Gallant’s warning that passage of the reform would harm national security.
Rather than begin the legislative process anew, the coalition decided to resume where the previous bill left off. The process is thus expected to be relatively quick.
The Movement for Quality Government (MQG) in Israel published a position paper last week against the expedited process.
“Such a change is in complete contrast to the customary and accepted procedures for advancing bills, and should be carried out in an orderly legislative process and not fast-tracked using the legislative progress of an existing bill,” the MQG wrote. “Beyond that, regime changes of this magnitude should only be made within the framework of establishing a constitution for the State of Israel, with broad agreement and with adequate representation for all.”
Sa’ar and Levin attended the meeting in order to present the bill.
Levin presented the bill, and argued that the reality was that the judges sided ideologically with the current opposition “on nearly every issue.” He said this was “undemocratic,” and that “enormous populaces” were “excluded” from the judicial system.
Levin explained the proposal’s rationale. He argued that the Israel Bar Association should not have representatives in the committee, since “most of the issues of integrity” happened because of the lawyers’ “conflict of interest.”
The justice minister explained that the Supreme Court representatives on the committee should not have veto power over appointments, because when “it is in a position of intervening in legislation, it is not correct that it balances the Knesset in this place and on the other hand determines who will enter the court.”
Sa'ar revealed in his comments that he had held four secret meetings with Levin during September 2023 that were approved by Prime Minister Benjamin Netanyahu, National Unity leaders MKs Benny Gantz and Gadi Eizenkot, and Shas chairman MK Arye Deri. He said that he and Levin had “nearly reached agreements” during those meetings, and that over 70 MKs had expressed support for the proposal and criticized those who he claimed called every proposal a “threat to democracy.”
In his comments, the foreign minister argued that “it was not reasonable” for a democratically elected justice minister to not have even one judge on the High Court bench who “shared his worldview.” Sa’ar admitted the catalyst for the proposal was the blocking of Levin’s candidates for the High Court, Adv. Aviad Bakshi and Adv. Rafi Biton. Bakshi was the head of the legal department in the Kohelet Forum, which supported the judicial reforms.
Former Science & Technology minister Yizhar Shai and Brig.-Gen. (res.) Dedi Simchi, both parents of soldiers who died in the war and who took part in formulating the compromise, also attended the meeting. The two called on the coalition and opposition to come to an agreement on the basis of the proposal, in order to prevent further social strife over the issue.
A number of members of the opposition, along with Israel Democracy Institute expert Dr. Guy Luria and court system legal adviser Barak Lazer criticized the bill. Arguments included criticism of the expedited legislative process; that the bill needed to be part of a larger constitutional agreement; that the proposal will politicize all High Court appointments; that it creates an incentive for the coalition and opposition to avoid appointing High Court appointments for a year; and more.