Israel's judicial reform is happening without Netanyahu lifting a finger - analysis

The judicial reform did not emerge in a vacuum but had a bedrock goal of remaking the Supreme Court into a more conservative court, more deferential to the executive and legislative branches.

 Israelis are seen demonstrating near the Supreme Court in Jerusalem ahead of a vote in the Knesset on judicial reform, on February 20, 2023. (photo credit: NOEMI SZAKACS)
Israelis are seen demonstrating near the Supreme Court in Jerusalem ahead of a vote in the Knesset on judicial reform, on February 20, 2023.
(photo credit: NOEMI SZAKACS)

Slowly but surely, the judicial reform is happening without Prime Minister Benjamin Netanyahu even raising an objection.

On Tuesday, when the Supreme Court announced that Justice Noam Sohlberg would replace Justice Yitzhak Amit on the Judicial Selection Committee, to the uninitiated, this might sound like just swapping one Supreme Court justice for another.

It would not seem to mean much of a change, especially since the judicial reform tried to lessen the influence and power of the current court on its future picks.

The reform did not emerge in a vacuum but rather had a bedrock goal of restructuring the Supreme Court to be more conservative and more deferential to the executive and legislative branches.

In fact, Sohlberg replacing Amit is quite a radical change.

Noam Sohlberg (credit: Courts Administration)
Noam Sohlberg (credit: Courts Administration)

Sohlberg is one of the court’s most conservative justices, while Amit is seen as part of the court’s liberal wing, especially in recent years.

Until now, the Supreme Court justices on the Judicial Selection Committee operated as an automatic three-vote liberal bloc, both in voting and in framing the debates on candidates who had legitimate qualifications and who did not, were underqualified and pushed forward by political interests.

The conservatives' assumption was that the Supreme Court justices' voting power had to be reduced if the court were remade. But with Sohlberg joining, that bloc is broken.

He has added another potential vote to the three conservative votes on the committee, which is already effectively controlled by the government. While this does not give the government a majority, if either of the two Israel Bar Association members can be convinced to flip on a specific justice to the conservative side (something which is rare but has happened), the conservative side would wield a majority.

Meaning, that either way, the three votes of the Supreme Court justices are not eternally liberal. In fact, while there exists a mix of considerations about which justices get put on the committee, a primary one is seniority, and after Sohlberg, conservative justices David Mintz and Yosef Elron could be next, and another conservative Yael Wilner is not far behind them.

That means that the Supreme Court justices on the committee could, in not very long, vote as a conservative bloc.

This move will disrupt the liberal-conservative balance of the Supreme Court

Without waiting any time at all, the two remaining liberal justices on the committee may find it harder to dismiss as unqualified certain candidates, if Sohlberg says they are qualified.

In other words, when such candidates were defended only by political officials, the liberal wing could not only beat such candidates by vote but could also undermine them as the “true experts” for qualifications on the committee.

Sohlberg has now taken away that moral high ground from the liberal side. He is conservative, but after around 12 years on the court, no one would question his qualifications or his grasp of what it takes to be on the top court.

Plus, other changes have already taken effect.

Amit is actually a moderate liberal; there is a wide list of issues where he votes with the conservative wing. He has endorsed Shin Bet enhanced interrogation tactics that many Western countries would consider torture, allowed Idit Silman to run for the Knesset despite legal disputes about her eligibility, and ruled in favor of security considerations over human rights arguments in several cases.

That means that on a range of issues, as soon as two liberal justices, Esther Hayut and Anat Baron, retired in October, the court already flipped from an 8-7 liberal court to a 7-6 conservative one.

That trend will only continue if no new appointments are made to the High Court.

In October 2024, around eight months from now, Uzi Vogelman will retire from the court. That will move the court to 6-6 on some issues and decisively to 7-5 in a conservative direction on other issues.

The bottom line is that the court has been being remade in a moderate conservative direction over time, dating back to when Ayelet Shaked was justice minister (2015-2019), followed by Gideon Sa’ar (2021-2022) – both well before the judicial reform legislation push.

Time and retirements have taken their toll, and the conservative wing of the court is on the rise in both numbers and seniority.

In another move on Tuesday, reportedly Justice Minister Yariv Levin and other conservative court members blocked the promotion of Judge Tal Tadmor from the magistrate’s court level to the district court level due to issuing what they viewed as lenient sentences against Israeli-Arabs who committed nationalistic crimes during the May 2021 Gaza conflict.

This was a rare entry of conservative politics even into lower levels of judicial appointments. Once the court swings conservative, what reason would Netanyahu have to pass an override for the Knesset? That might even be a dangerous move, as changing control of the court takes time, and the court could remain conservative, outlasting his government being replaced by a more liberal one. Why give an override weapon to a potentially more liberal government?

And with that, the judicial reform becomes unnecessary because the underlying goal for which conservatives wanted it passed – transforming the court to be more conservative – is already being accomplished or is on the horizon.