What is going on with Israel's judicial selection process? - explainer

POLITICAL AFFAIRS: What does Wednesday’s vote mean about the judicial overhaul, the talks at the President’s Residence and the government’s stability going forward?

 MK KARINE ELHARRAR poses for a picture after voting in the Judicial Selection Committee vote earlier this week. (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
MK KARINE ELHARRAR poses for a picture after voting in the Judicial Selection Committee vote earlier this week.

Anonymous Knesset votes always draw intrigue due to the chances of unknown coalition or opposition members crossing the political divide. But the intrigue and plot twists in the Knesset hallways throughout the day on Wednesday ahead of the Knesset’s vote for its two representatives on the country’s Judicial Selection Committee exceeded expectations.

The committee, whose makeup is at the heart of the government plans to overhaul the judicial system, includes two Knesset members. Traditionally, the coalition chooses one of its own to occupy one spot, and allows the opposition to occupy the other. The coalition also has two ministers on the committee, so this gives it three votes on the committee, versus one for the opposition.

In the last government, for example, Labor MK Efrat Rayten was chosen from the coalition, and then-opposition MK Simcha Rothman was chosen from the opposition. The vote barely made headlines.

Raising the stakes in Israel's judicial reform debate

This time around, the stakes were far higher. The hawkish, pro-judicial overhaul wing of the coalition, led by Justice Minister Yariv Levin, disliked the fact that opposition leaders Yair Lapid and Benny Gantz had conditioned the continuation of talks on an opposition MK joining the committee. The “Levin wing” demanded that the coalition take both spots for itself, despite, or perhaps because of, Lapid and Gantz’s threat to end the talks if this happened.

Prime Minister Benjamin Netanyahu needed to decide. Would he bring about the end of the talks by having two coalition MKs chosen, and risk a return to the protests and upheaval of March, or would he rein in his militant partners and keep the talks alive?

 MK Simcha Rothman chairs a heated discussion in the Knesset Constitution, Law and Justice Committee on the appointment of judges on March 26. (credit: MARC ISRAEL SELLEM)
MK Simcha Rothman chairs a heated discussion in the Knesset Constitution, Law and Justice Committee on the appointment of judges on March 26. (credit: MARC ISRAEL SELLEM)

As is Netanyahu’s habit, the decision came down to the last minute. The vote was scheduled for 11:30 on Wednesday morning. As 9 a.m. and then 10 a.m. and then 11 a.m. dragged by, Netanyahu remained ensconced in his office in the Knesset. Ministers, coalition Knesset members and aides scurried in and out, as dozens of media teams and reporters waited outside the door.

The scheduled time for the vote, 11:30 a.m., came and went. Coalition members began stalling the proceedings in the plenum in order to buy time. Tension was palpable.

The beleaguered prime minister finally emerged, and minutes later the coalition heads announced their decision: Not two coalition members, nor one coalition and one opposition member, but, rather – appoint no one, and hold a repeat vote in a month, using an obscure clause in the Knesset protocol.

Classic Bibi – decide not to decide.

On second thought, however, the move made sense. The Israel Bar Association also has two members on the committee, and it is holding an election for a new chairman and executive council on June 20. The council chooses the Bar’s two members on the Judicial Selection Committee, and therefore the result of the Bar election would give the prime minister more information regarding the committee’s makeup. Why not wait a month and then decide, with more information available?

How can a Knesset vote be repeated?

In order to hold a repeat Knesset vote, two things needed to happen. First, the field of candidates needed to be narrowed down to two, so as to enable a “yes” or “no” vote for each, instead of a regular most-votes-wins format. This happened at approximately 12:30 p.m., when seven of the eight coalition MKs removed their candidacy, leaving Likud MK Tally Gotliv from the coalition and Yesh Atid MK Karine Elharrar from the opposition. Coalition whip, Likud MK Ofir Katz entered the plenum and gave the green light for the vote to begin.

The second thing that needed to happen was for all of the coalition members to vote “no” for both Elharrar and Gotliv. Neither would be chosen, and a repeat vote would be held.

After the vote, an hour passed, then two, then three, far more than necessary to count 120 votes. Turns out that the results had shocked the coalition MKs who were part of the ballot-counting team – they demanded two recounts.

Finally, at approximately 6 p.m., the results became clear. Elharrar had received 58 “yes” votes and 56 “no” votes, and had officially been appointed to the committee. Gotliv received just 15 “yes” votes and nearly 60 “no” votes. A repeat vote will be held, but only for one of the spots.

The opposition has 56 MKs. 54 participated in the vote, since two were abroad. The 58 votes for Elharrar meant that at least four coalition MKs defied the prime minister’s orders.

The day ended up becoming an embarrassing fiasco for the prime minister and an impressive win for the opposition, given its size.

WHAT DOES all this mean for the judicial overhaul, the talks at the President’s Residence, and the coalition and government’s stability going forward?

First, the approximately 80 judges waiting to be appointed will have to wait. The committee needs a minimum of seven members to convene, and now it has that number – three Supreme Court justices, two outgoing IBA members, one minister (Levin) and one Knesset member (Elharrar). Another minister and Knesset member have yet to be appointed. However, it is almost certain that Levin will not convene the committee at least until the second Knesset representative is elected. This means that these approximately 80 vacancies will remain open for another month.

Second, the talks at the President’s Residence were officially frozen by Lapid and Gantz, at least until the second Knesset representative is elected. This is not as dramatic as it may sound. The sides stopped meeting at least two weeks before Wednesday’s vote in order to see what happens. Rather than a new freeze in the talks, the vote’s implication is just the extension of a de facto freeze for another month.

Third, a number of pro-reform hardliners in the coalition are blaming the opposition for the failure to reach agreements, and are calling on Netanyahu to advance some parts of the reform one-sidedly. The parts that could advance are two issues that the sides reportedly agreed on – enabling ministers to use their own representation in court in challenges against their policies, when the attorney-general sides with the challengers; and defining the court’s use of the “reasonableness factor” when evaluating government policies.

The opposition denies that it reached agreements on these issues, but it seems that the sides were not far apart. The coalition may attempt in the coming month to pass these two laws, at the risk of aggravating the protest movements and deepening the crisis with the opposition.

Fourth, and perhaps most interesting, are the political ramifications of Wednesday’s events.

Two major occurrences are worth focusing on: First, Netanyahu’s decision on Wednesday morning to change his mind and direct the coalition to vote “no” against both committee candidates, instead of voting in favor of Elharrar and Otzma Yehudit candidate MK Yitzhak Kreuzer; second, Elharrar winning the vote despite Netanyahu’s directives.

The first incident is a stark example of the levels of distrust between Netanyahu and his coalition partners, on one hand, and his fear of losing power, on the other.

National Unity MK Ze’ev Elkin pointed out on KAN Radio on Thursday that had three candidates remained on the ballot – Elharrar, Kreuzer and Gotliv – a majority of the opposition and a significant part of the coalition would have voted for Elharrar and Kreuzer, and the issue would have been settled, which is what Netanyahu wanted in the first place.

But Netanyahu did not see it that way. His distrust of his partners was so deep that he could not count on a large group in his coalition to vote for Elharrar. The small chance that two coalition representatives could have been chosen, followed by the breakup of the talks and an outburst of protests, was enough for the prime minister to make a U-turn and launch a haphazard move at the last minute, which failed.

Netanyahu also could not afford even the slightest chance of another possible outcome – Elharrar and Gotliv making the committee. Why? Because he promised Otzma Yehudit a spot on the committee, and failing to follow through on this promise would anger Ben-Gvir and perhaps destabilize the government.

In other words, despite the high likelihood of Netanyahu still getting what he wanted – Elharrar and Kreuzer on the committee – the risk of protests and of coalition problems were enough to push him toward an alternate solution, which ended up a fiasco.

The second incident, whereby a handful of coalition MKs defied his orders and in the end led to a result that no one expected, essentially proved that the prime minister was correct in not trusting his partners. The coalition members who voted for Elharrar likely did so because they were not willing to see the talks at the President’s Residence completely over, and were fed up with the protests, and perhaps even with the reform in general.

This does not mean that these coalition MKs will vote against a coalition attempt to pass parts of the reform one-sidedly, since voting on laws is not anonymous and therefore they would pay a political price. But their vote behind the ballot screen was a show of power against the prime minister, and against the hawkish elements in the coalition that are trying to get the prime minister to go through with the reforms.

In addition, Netanyahu’s display of weakness could have serious repercussions elsewhere. The haredi parties received a significant blow on Wednesday in the Rabbinical Judges Selection Committee vote. Respecting Netanyahu’s orders, they removed their candidates ahead of the vote, with the intention that no one would be elected and that a repeat vote would be held.

Here, the coalition did not have qualms about occupying both spots reserved for the Knesset, and the opposition did not seem to care as much. But here, too, a handful of coalition MKs defied Netanyahu’s orders, and National Unity MK Pnina Tamano-Shata was elected to the committee. The haredi parties were not happy.

This is important because a significant piece of legislation involving the haredim is fast approaching: the haredi conscription law, which is set to expire at the end of June, after which the state will be required by law to begin conscription processes for all eligible haredim.

The issue of haredi service in the IDF has brought down governments and was a central reason for the cycle of five elections between 2019 and 2022. Wednesday’s vote likely left the haredi parties wondering whether Netanyahu has enough political will or power to pass a new law, which also could prove controversial. It remains to be seen how this will play out in the coming weeks.