The new proposal to change the makeup of the committee responsible for appointing judges will result in the politicization of the appointment process and “change the country’s character,” former justice minister and Likud MK Dan Meridor said in the Knesset Constitution Committee in Jerusalem on Tuesday.
Part of the proposal is that representatives of the coalition and opposition on the committee, known as the Judicial Selection Committee, have mutual power to veto High Court appointments, but the judges on the committee lose their veto power.
According to Meridor, “The balance since the committee was established has been that there is a majority of professionals. This is a central issue – who should decide on the identity of the judges? Politicians have always been the minority. I come from a previous world, from a movement that aimed to strengthen the judicial system.”
The remarks were notable, as Meridor’s party, the Likud, led by Justice Minister Yariv Levin, has spearheaded the attempt to tilt the existing checks and balances in favor of the government in what became known as the “judicial reforms.”
Meridor quoted Menachem Begin, former prime minister and leader of the Likud, who said in the Knesset in 1953, “We come to ensure the independence of judges, and therefore we must ensure the independence of their appointments.”
He argued that once High Court judges are appointed as part of political negotiations, these judges will themselves become members of the Judicial Selection Committee. Then, instead of having both politicians and judges on the committee, there will simply be politicians and politically affiliated judges.
Meridor added that he had been a member of the Judicial Selection Committee for eight years and said he did not remember ever discussing whether a candidate was conservative or liberal. The only benchmark was their “excellence,” he said.
What does Israel's Judicial Selection Committee look like?
The Judicial Selection Committee’s makeup since 1953 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).
All judicial appointments require a simple 5-4 majority, save for appointments to the High Court, which requires a 7-2 supermajority.
The new proposal was put forward jointly by Levin and Foreign Minister MK Gideon Sa’ar in early January alongside two former senior officials whose sons died in battle during the war – former minister Yizhar Shai and former Fire and Rescue chief Dedi Simchi.
According to the proposal, the two IBA members will be replaced by two lawyers, one appointed by the coalition and the other by the opposition. In addition, the majority necessary for High Court appointments will revert 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 the approval of one member of the coalition, one from the opposition, and one of the judges.
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 coalition in early 2023 attempted to pass a different amendment, whereby the governing coalition would enjoy a majority on the committee and thus de facto control all appointments to all levels of the court system.
The law was approved for its second and third reading in March 2023 but was frozen after mass protests broke out in the wake of former defense minister Yoav Gallant’s warning that the reform’s passage would harm national security.
Rather than begin the legislative process anew, the coalition decided to resume legislation of the proposal where the previous bill left off. The legislative process is thus expected to be relatively quick.
Members of the opposition at the meeting made a number of arguments against the bill. Democrat MK Gilad Kariv questioned the removal of the judge’s veto power in High Court appointments.
According to Kariv, there is no reason why judges should not have veto power if, in any case, there was a mechanism in place to solve “deadlocks.” National Unity MK Orit Farkash-Hacohen argued that the “deadlock” mechanism itself was unacceptable and would not pass constitutional review.
According to Farkash-Hacohen, the mechanism does not include sufficient criteria for judicial candidates, and the coalition, for example, could propose three unworthy candidates, out of which the opposition would be forced to choose one.