Why is changing Israeli judge appointment system dangerous? - opinion

The politicization of the Supreme Cour could damage the entire legal system and Israel’s ability to continue functioning as a vital democracy.

 PRIME MINISTER Benjamin Netanyahu addresses the Likud’s faction in the Knesset, last week. Threats from the Likud Central Committee may be inserted into the selection procedure for the most important judicial institution in Israel, says the writer. (photo credit: OLIVIER FITOUSSI/FLASH90)
PRIME MINISTER Benjamin Netanyahu addresses the Likud’s faction in the Knesset, last week. Threats from the Likud Central Committee may be inserted into the selection procedure for the most important judicial institution in Israel, says the writer.
(photo credit: OLIVIER FITOUSSI/FLASH90)

Two weeks ago, Justice Minister Yariv Levin declared a “constitutional revolution” in Israel. As part of this revolution, he aims to fundamentally alter the balance of governmental powers and thus “restore governance,” “return power to the people,” and “strengthen democracy.”

A central component of the reform is the way in which judges are appointed in Israel. Levin proposes to politicize the appointment of judges and have absolute government control over these appointments. If the appointment procedure is altered in this way, especially in conjunction with the other elements of the reform, our legal system will change beyond recognition, and for the worse.

Throughout its 75 years in existence, Israel has employed a unique method of selecting judges. According to this method, judges are chosen by a nine-member Judicial Selection Committee representing the three branches of government: two members of the Cabinet; two Knesset members; two members of the Israel Bar Association; and three Supreme Court justices.

Since 2008, a seven-member committee majority has been required to elect Supreme Court justices. What this means, is that without a broad consensus reflecting compromise and checks and balances, justices cannot accede to the highest level of Israel’s judicial system.

The method is not perfect, and its flaws became evident a few years ago when the Bar Association was led by someone of suspect integrity. Nevertheless, over the decades of Israeli statehood, this judge selection procedure has resulted in the appointment of good, highly professional judges, at all levels of the judiciary and certainly on the Supreme Court.

Justice Minister Yariv Levin holds a press conference at the Knesset, the Israeli parliament, in Jerusalem on January 4, 2023. (credit: OLIVIER FITOUSSI/FLASH90)Justice Minister Yariv Levin holds a press conference at the Knesset, the Israeli parliament, in Jerusalem on January 4, 2023. (credit: OLIVIER FITOUSSI/FLASH90)

Debunking myths about Israel's system to elect judges

It is worth debunking some myths about the existing system. Because the justices no longer constitute a majority of the committee and do not have unilateral control over appointments, they reach agreement with the committee’s government representatives. The result is more balanced appointments.

This is clearly in the character of the court, which is changing before our eyes. Its formerly monolithic character, which drew justified criticism, is giving way to social and ideological diversity. Today’s Supreme Court has more religious justices, more conservative justices, more Mizrahi justices, and more women justices than ever before.

How are Yariv Levin's proposed Israeli judicial reforms dangerous?

BUT THAT isn’t enough for the new government. Levin is proposing a radical change that will essentially lead to complete politicization of Israel’s judicial appointment process. According to his proposal, the Judicial Selection Committee will have eleven members, seven of them appointed by the government. This means that the ruling coalition will be appointing Israel’s judges.

Thus, we will go from a balanced appointment procedure involving compromise and consensus to an entirely political process, subject to the control of self-interested politicians. It is easy to see how such a process could degrade the Supreme Court’s status and its ability to function.

From now on, justices will be selected, not on the basis of professional parameters and personal/ethical quality, but rather on the basis of their political views. Populist threats from the Likud Central Committee may be cut and pasted into the selection procedure for the most important judicial institution in Israel.

The danger of such a development is threefold. First, it should be remembered that of the 9000 cases heard by the Supreme Court each year, fewer than 20% are High Court of Justice cases, and of these, only a very small percentage are cases with major ethical implications in which ideological outlooks find expression. Appointing non-professional judges would harm the ability to do justice in the simplest sense of the term.

Second, even in the current situation, which is balanced and intentionally non-political, allegations of political bias are leveled against judges. Who will trust rulings handed down by justices whose main virtue is belonging to a certain political camp? 

And finally, we must remember that this proposal is one of a number of measures meant to weaken the Supreme Court. All of these measures together, if implemented as currently proposed, will significantly undermine Israel’s democratic foundations.

Democracy is not just majority rule, but rather a complex system of democratic values and checks and balances between the branches of government. The core of democracy is effective governance according to the will of the people, alongside constraints on power. The politicization of the Supreme Court, an institution of such centrality in any democracy and certainly in Israel’s, could damage the entire legal system and Israel’s ability to continue functioning as a vital democracy.

The writer is vice president of the Jewish People Policy Institute and a lecturer in law at Peres Academic Center. His novel We Didn’t Love Too Much was published in 2023 by Yedioth Books.