Sa’ar: Judicial proposal designed to overcome veto on Levin’s hardline Supreme Court picks

Foreign Minister Gideon Sa’ar said on Tuesday that his joint proposal with Justice Minister Yariv Levin to change the composition and functioning of the Judicial Selection Committee was designed to overcome the stymying of Levin’s effort to have one of two hardline conservative academics appointed to the Supreme Court.

Speaking in the Knesset Constitution, Law and Justice Committee, Sa’ar contended that the inability of the justice minister to have “one judge out of 15 [who holds] his legal ideology elected to the Supreme Court” was “unreasonable and illogical.” He said that the refusal of Supreme Court judges to appoint either of Levin’s candidates necessitated the current legislation.

Critics of the new proposal have alleged it would politicize the judiciary by giving politicians excessive power over the appointments process, and thus compromise its independence and professionalism, an accusation that was repeated with greater force by opposition MKs on the committee after Sa’ar’s comments.

Separately, former Supreme Court president Esther Hayut contended in a speech that Levin’s proposal was the same program for “crushing the legal system” that he sought to advance in 2023, and would severely harm judicial independence while politicizing the judiciary.

The committee hearing on the proposed legislation was its first since the October 7, 2023, Hamas atrocities and the subsequent war, with both Sa’ar and Levin attending the debate along with numerous MKs from the coalition and the opposition, and legal experts from liberal and conservative think tanks.

The committee did not deliberate on the specific clauses and wording of the revised legislation, instead debating the general principles of the proposal and the broader claims of either side over the State of Israel’s judicial system and courts.

Unlike most of the hearings on the original legislation back in the first part of 2023, Tuesday’s committee session mostly did not witness the shouting matches and ferocious verbal exchanges that typified those debates, with only one MK, Naama Lazimi of the Democrats, ejected from the committee by deputy chairman Yitzhak Pindrus for interrupting other speakers.

Addressing the committee, Levin repeated his criticism that the Supreme Court is not representative of the full spectrum of ideological beliefs in Israel, although it was pointed out to him that former justice ministers succeeded in appointing a non-inconsiderable number of conservative judges, including staunch right-wingers, to the top court.

The justice minister insisted that he made “very significant changes” to his original judicial overhaul program, while warning he expected “this extended hand will be met by an extended hand on the other side.”

The legal adviser to the Israel Courts Administration dismissed Levin’s claims that the new proposal was now balanced, stating that the new system would politicize the judicial selection process and thereby politicize the judiciary itself, creating a judicial system where judges looking for advancement sort themselves into political camps in order to gain promotions.

According to Levin and Sa’ar’s new proposals, the two representatives of the Israel Bar Association currently on the nine-member Judicial Selection Committee would be removed, and replaced by two lawyers, one to be appointed by the coalition and one by the opposition.

Appointments to lower courts would be made a simple majority, but would need at least one vote each from committee representatives of the coalition, opposition and the Supreme Court.

Appointments to the Supreme Court would need at least one vote from the coalition and opposition, but not the Supreme Court justices.

In the event that two spots on the Supreme Court remain open for over a year, both the coalition and opposition could essentially force the appointment of a candidate of their choosing.

Levin’s original proposals sparked massive public protest and created deep rifts in Israeli society, and only came to a halt after the October 2023 Hamas invasion and the war that followed.

Levin, who is seeking to have his legislation passed into law by the end of February, has remained tight lipped on what further changes to the legal system might introduce afterwards.

The current legislation would only take effect under the next Knesset term, meaning after a new general election.

Levin and Sa’ar have also backed endowing Israel’s Basic Laws with more constitutional heft through passing the proposed Basic Law: Legislation, without yet detailing how this would be achieved, but would at the same time make the Basic Laws immune to judicial review.

The Basic Law: Legislation would also greatly constrain the Supreme Court’s power of judicial review over regular legislation, although a draft bill has yet to be submitted to the Knesset.

Diversification or politicalization?

Addressing the committee, Sa’ar insisted that the new proposal was balanced since it guaranteed that the opposition could make appointments to all courts, which has historically never been the case.

He also argued that removing the requirement that at least one Supreme Court judge vote in favor of an appointment to the Supreme Court was necessary, since it was “unreasonable and illogical” for the judiciary to be able to block an appointment sought by the justice minister.

Sa’ar argued that the reform he led in 2008, which actually instituted the de facto veto of both the Supreme Court judges and the coalition over appointments to the Supreme Court, came after the nomination of Ruth Gavison, a professor of law at Hebrew University, was blocked by the justices on the committee.

“This [current] amendment has its origins in the blocking of Bakshi and Biton to the Supreme Court,” said Sa’ar.

Levin has sought to have either Raphael Bitton, a senior lecturer at Sapir College School of Law, or Aviad Bakshi, head of the legal department at the conservative Kohelet Policy Forum, elected to the Supreme Court, but the justices on the committee have strongly objected to their nominations, reportedly on the grounds that the two academics are unqualified for the post.

“The justice minister… represents the parliamentary majority and it is not reasonable that he cannot choose one of 15 judges of the Supreme Court” insisted Sa’ar.

The justice minister cited both Bitton and Bakshi as sources of inspiration for his original judicial overhaul agenda, which would have given the government almost complete control over judicial appointments and almost entirely eliminated the Supreme Court’s power of judicial review.

Responding to Sa’ar’s comments, Democrats MK Efrat Rayten accused both Levin and Sa’ar of seeking to change the whole system of judicial appointments simply to get either Bitton or Bakshi on the court.

“This whole proposal was born to appoint your two candidates, everything that is happening here today is designed to solve your appointment which you haven’t managed [to make],” charged Rayten.

Levin in his address to the panel asserted that the current makeup of the Judicial Selection Committee that makes all judicial appointments meant that Israel’s right-wing parties could never obtain a majority on the panel, even when they win an election.

His claim assumed that the Israel Bar Association representatives never vote with the right, and that Supreme Court judges on the committee have never voted to appoint conservative judges to the court, both of which are historically inaccurate.

Levin argued that the mutual veto of the coalition and opposition over all appointments would mean that no political camp could take control of the judiciary, but at the same time would also guarantee a more diverse court.

The justice minister insisted that this mutual veto would ensure that compromise appointments would be made, although somewhat contradictorily pointed to the large number of judicial appointments to Israel’s lower courts made during his tenure as justice minister, despite the fact that neither the coalition, opposition, or judiciary has a veto over appointments in the current system.

Levin said that removing the current veto which Supreme Court judges have over appointments to the Supreme Court — a veto also enjoyed by the coalition — was necessary because the court has the power to strike down legislation.“It cannot be that with one hand it provides a check on the Knesset with intervention over legislation and with the other hand it holds the ability to determine who can sit in the Supreme Court itself,” he said.

He also argued that the mechanism for breaking deadlocks on the committee for Supreme Court appointments would pressure the coalition and opposition members to compromise so that it would not ultimately be needed.

Democrats MK Gilad Kariv rejected Levin’s assertion that he was seeking compromise and consensus, pointing out that the justice minister wanted his proposal passed into law within a short time frame, implying that the legislation could be rammed through the Knesset if the opposition does not agree to it.

“You’re not committing to anything, you’re not even saying you bring other regime overhaul legislation. Everything is under the same attack you have carried out against the judicial branch,” said Kariv.

‘Same lady in a different robe’

Barak Laser, the legal adviser to the Israel Courts Administration, rejected most of Levin’s arguments, insisting that the legislation would politicize the judiciary and compromise its independence.

“Processes are being advanced which would harm the independence of the judicial authority, strengthen its dependence on the political echelon, lead to an increase in lack of public trust in judges and the results of [legal] processes,” averred Laser.

He said the removal of the Israel Bar Association representatives from the committee in favor of lawyers chosen by politicians would politicize the judicial selection processes, and create a “politically slanted legal system” with judges chosen “due to the interests which motivated the members of the Judicial Selection Committee at that time.”

The fact that appointments to the Supreme Court would not require even one vote of an independent legal professional meant that judges on Israel’s top court could be made “without examining at all” whether a candidate was actually fitting for the job, he continued.

“The impact will be that judges in the different courts who want to be promoted… will know that the way to get an appointment and advancement is by associating with a political camp,” said Laser, adding that such judges would therefore be worried about ruling against the government.

Laser also argued that the deadlock breaking mechanism would simply encourage the coalition and opposition not to compromise, as the other side would be forced to agree to one of their appointments at the end of the process.

In her first comments on Levin’s new proposal, Hayut, the former chief justice, like Laser asserted that the new proposal by Levin would politicize the judiciary and severely harm its independence as well as Israel’s democratic identity.

“Unfortunately, despite the difficult days we are going through… there is someone who thinks this is an opportune moment to advance a program, which I labeled in January 2023 as a program for the crushing of the legal system,” said Hayut at a special conference in her honor at Tel Aviv University.

“Make no mistake, the attempt to present the proposal currently being advanced as a ‘compromise’ and as a ‘broad agreement’ is a sleight of hand, she said.

“This is the same lady in a different robe. The same politicization, the same mortal blow to the independence [and] impartiality, of the judicial branch, and by extension to the democratic identity of the state.”