Who judges Israel? How judges are selected has become a flashpoint

LEGAL AFFAIRS: The judicial selection committee and the future of democracy in Israel.

 ONLY JUDGES who are in line with the political agenda of the Supreme Court are chosen to be judges and move up the ladder, argues one democracy researcher. (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
ONLY JUDGES who are in line with the political agenda of the Supreme Court are chosen to be judges and move up the ladder, argues one democracy researcher.

Judges have always been important figures for the Jewish people. Moses set judges for the Jewish people when they were brought out from the land of Egypt. Judges were political and military leaders restoring justice and faith to the Israelites in ancient times. The rules for who should or shouldn’t be a judge have been detailed in the Torah and Talmud. The role continues to be important today, but while in the past they may have been chosen by God or prophets, how judges are selected has become a flashpoint in Israel.

The old Israeli order for how to choose who judges Israel has been brought into question. Drama unfolded on Wednesday night when Supreme Court Justice Yosef Elron defied tradition and submitted his candidacy to be the next court president after Esther Hayut’s retirement in mid-October. By convention, Supreme Court presidents are chosen by seniority, making Justice Isaac Amit heir apparent.

Elron’s challenge to the order has made him ineligible to preside over the September 7 hearing on Justice Minister Yariv Levin’s refusal to convene the Judicial Selection Committee. The panel has been at the core of the current debate and campaign to change who can preside over the State of Israel. Next Thursday’s hearing will be another chapter in the drawn-out struggle.

What is the Judicial Selection Committee?

The Judicial Selection Committee is a panel of politicians and professionals that determines the promotion and appointment of judges and justices from the highest to lowest courts in the land. Currently, the panel is staffed by the Supreme Court president, two other justices, two Israel Bar Association representatives, two Knesset members, the justice minister, and another cabinet minister. While those supporting the old system say the balance of professional and elected officials ensures the best judges are chosen, reformists argue that the Bar members and justices have formed a self-interested majority voting bloc that allows the judges to select who joins their ranks.

Only judges who are in line with the political agenda of the Supreme Court are chosen to be judges and move up the ladder, argued attorney Iska Bina, head of The Movement for Governability and Democracy, a nongovernmental organization that has long championed judicial reform. Those who did not conform did not become judges, creating conditions in which the law is only interpreted in one way.

Israel's High Court of Justice (credit: ISRAELTOURISM / WIKIMEDIA COMMONS)
Israel's High Court of Justice (credit: ISRAELTOURISM / WIKIMEDIA COMMONS)

“You have an authority that is not answerable to citizens,” said Bina.

She contended that the judges took on the power to decide on fundamental issues in Israeli society, make decisions in the cases of individual Israelis, and were self-selected, insulated from democratic recourse. Democracy is about the citizenry being able to choose their destiny, and if citizens could not vote out judges, “this is not a democratic arrangement.” For all the talk of checks and balances, without electoral control over who becomes a judge, there are few on the courts.

The Supreme Court has powers that have expanded over the years, using tools like the reasonableness standard to review legislation, and wide interpretation to read down and neutralize the effectiveness of a law, Bina argued. If new bills were passed to limit the powers of the court, it could simply create new tools.

Who interprets law is just as important as who drafts the bills, and, consequently, since the judicial reform was announced on January 4 by Levin, the alteration of the Judicial Selection Committee has been perhaps the most important and contentious provision. The first legal overhaul bill the coalition sought to pass would have changed the composition and rules of the panel. While almost all other reform provisions have been discarded by Prime Minister Benjamin Netanyahu, the Judicial Selection Committee remains on the agenda.

Religious Zionist Party MK Simcha Rothman, who founded The Movement for Governability and Democracy, sought to create a system in which more elected officials sat on the Judicial Selection Committee, with a natural majority given to ruling coalition members. While reformists argued that this would create a more democratic judicial system, critics argued that this would politicize the system, and would see the appointment of judges based on their political orientation rather than professional merit.

As the bill approached its final readings in March, the protests against the change grew too great, and Netanyahu froze the legislation. The coalition and opposition turned to negotiations at the President’s Residence. While progress was reportedly made on most of the reform issues, the status of the Judicial Selection Committee was one matter on which consensus could not be reached by negotiators.

Talks collapsed in June when it came time to elect new members of the committee. The coalition failed to scuttle the vote for Knesset representatives in what critics said was a stalling tactic, and in the end the body elected one representative, Yesh Atid MK Karine Elharrar. With the committee failing to convene, the opposition pulled out of negotiations. It took about a month before the next Knesset representative, Otzma Yehudit MK Yitzhak Kreuzer, would be elected. With the Bar elections on June 25 seeing the anti-judicial reform Bar chairman Amit Becher and his camp sweep, it became certain that the organization would seek to bolster the status quo and appoint Judicial Selection Committee representatives against the coalition’s agenda.

In July, Levin said that the Judicial Selection Committee would not be convened until it had been reformed. The panel had not been assembled since April 2022, and the Knesset is currently in recess, unable to begin the legislative process for a reform bill until mid-October.

Dr. Guy Lurie, a research fellow at the Israel Democracy Institute, said that Levin was using “the understaffing of the court system due to the open positions as a political card in a sort of game that he’s playing, trying to have his political will actualized.”

The consequence of not convening the panel has been the overloading of the court system.

“The judiciary needs to provide court services in a timely manner, and according to the judiciary itself, the workload is, as it is, very heavy,” said Lurie. “The judges are not making judgments quick enough in comparative terms to European standards.”

The average time it takes for criminal cases to be processed by the judicial system is 16 months, a joint Justice Ministry, Israel Police, and court administrative service study found on Tuesday. In a July Supreme Court ruling, Amit noted that the number of civil cases opened in Israel per 100,000 inhabitants was almost twice the average number in European states, and Israel has a third of the average number of judges per 100,000 inhabitants in European states. Lurie said that as of July there were about 21 open judge positions.

The court is “understaffed in terms of the number of professional judges per capita and the number of incoming civil court cases per capita,” said Lurie. “Once there is even further understaffing, because there are positions that are not fulfilled or not filled, that puts the system in even greater pressure.”

This understaffing extends to the Supreme Court as well. Hayut is not the only justice to retire in October, with Justice Anat Baron set to reach retirement age on October 12.

“According to Knesset decisions, there need to be 15 justices on the Supreme Court, and if their positions are not filled, there will be two open positions out of 15. That means more workload on the remaining justices and slower output of verdicts,” said Lurie. “If the position of the president of the Supreme Court is left open, this means that we’ll have an interim acting president. And that’s always not the healthiest of outcomes.”

If there is no president, Lurie said, the ability to make long-term decisions for the court is jeopardized.

In response to Levin’s refusal to convene the Judicial Selection Committee, the Yesh Atid Party and Movement for Quality Government in Israel NGO filed petitions to the High Court of Justice. The hearing next Thursday will see the opposition argue that the government must begin appointing judges.

“The petitioners say that he has a duty to convene the selection committee and that he has a mandatory authority and he needs to fulfill it in an appropriate, speedy manner, and that by not doing so, he’s really acting, in a manner of speaking, without authority,” said Lurie.

By the Knesset’s own legislation, there must be 15 justices on the Supreme Court, so Lurie said that when a position opens up, the committee needs to be assembled as a matter of law. The justice minister’s discretion on the matter is not wide, he said.

Lurie said that petitioners may also argue that Levin “is also infringing on various duties that he has as a justice minister, considering matters that are not of material to the decision at hand, infringing on rights of citizens to access to courts.”

The crux of the matter for the court to decide, Lurie said, will be “how wide is the discretion of the justice minister? Is this really a discretionary decision? Can he decide when and whether or not to convene the selection committee, or is it a mandatory type of authority?”

The petitions held that not convening the committee to appoint new judges was doing significant damage to citizens seeking the judgment of the courts.

Bina said that the issue at hand is not about the impact of the decisions of the courts. It is about whether the justice minister has the authority to make decisions in accordance with the power afforded to him by the citizenry.

“Of course more judges are needed, but at the end of the day, the issue is the authority of the minister, and if his actions displease the public, the electorate should be able to act at the ballot box,” she said. The courts should not be the place in which recourse for governance is decided.

Levin may argue this point through the attorney-general’s representative on Thursday, but according to him, they may not be expressed properly. Levin issued a letter attacking Attorney-General Gali Baharav-Miara on Wednesday, saying that she was trampling on his right to legal representation, because as his lawyer in court her representatives would not be defending his position, but her own opinion on the matter.

Bina said that the attorney-general’s ability “to write whatever she wants” makes the respondent irrelevant. If somebody is supposed to be a representative, they should actually represent you, she said. Like the judges, the attorney-general can decide where the public interest lies.

“Who decides the public interest?” asked Bina. “The public.”

Bina was not optimistic about the outcome of the ruling on Thursday, but said that she hopes that the court “would respect the minister and not take his place, as if it does this it decides that the public doesn’t matter” and would demonstrate that the court is already a political body.

Lurie said that it would be difficult to foresee the decision of the court, but thought it important to note how the judicial reform’s reasonableness standard law could impact the ruling. The reasonableness standard allows the court to engage in judicial review of government administrative decisions deemed far beyond what a reasonable and responsible authority would decide. The new law not only canceled the court’s ability to review administrative decisions by the government, prime minister, and ministers, but the language of the text also prevents it from reviewing administrative inaction.

“I think it seems like that amendment was tailored for this specific issue of the decision of the justice minister not to convene the selection committee, meaning that I think he feared judicial intervention due to seeing this decision as being unreasonable. Now the court doesn’t have that cause of inaction as a possible cause of intervention,” said Lurie. 

The reasonableness standard law itself will have a hearing on September 12. Another important hearing on the incapacitation law delay is set for September 28.

This September is also when the Jewish people will celebrate the High Holy Days, a time of divine judgment for the Jewish people. Bina advised all citizens to review the issues with the judicial system for themselves, and come to their own conclusions. This September is a period in which judgment will need to be carefully considered by all, and how it’s decided who judges.