The Justice Minister’s Decision to Convene the Judicial Selection Committee
On November 5, 2023, Minister of Justice Yariv Levin notified the High Court of Justice that he will convene the Judicial Selection Committee within 15 days. Selecting judges is not possible in such a short time frame, so we will have to wait and see whether this decision leads to the completion of judge appointments to the vacant positions.
Minister of Justice Yariv Levin. Photo by Chaim Goldberg/Flash90
On November 5, 2023, Minister of Justice Yariv Levin notified the High Court of Justice, ahead of a hearing scheduled for November 12, 2023, that “during wartime, there is no room for addressing controversial issues, including the issue of the procedures for appointing judges,” and thus, in order to avoid controversy, he will convene the Judicial Selection Committee within 15 days, and will bring before the Committee “decisions about which there is broad consensus.”
As will be explained below, it will not be possible to select judges within such a short period of time, and we will therefore have to wait and see whether this decision leads to the completion of the process of appointing judges to vacant court positions.
Ever since taking office, the minister of justice has refused to convene the Judicial Selection Committee. Since the last time the Committee met—more than a year ago, in April 2022—numerous positions of judges and senior court recorders have become vacant, the president of the Supreme Court has retired, and the ombudsman of the judiciary is due to retire shortly, all of these requiring new appointments to be made. Despite this, the minister has not convened the Judicial Selection Committee, because he wishes to change its composition in order to give the governing coalition greater control. Moreover, according to the Courts Administration, judges in Israel were already overworked, relative to the European average. Data published by the European Commission for the Efficiency of Justice shows that Israel has 7.8 judges per 100,000 residents, compared to a European average of 22.2, while the number of incoming civil cases in Israel is 4.5 per 100 residents, compared to the European average of 2.2.
It should further be noted that currently, Israeli courts are operating on a restricted basis under the terms of a declared special state of emergency (see here).
Following the justice minister’s refusal to convene the Judicial Selection Committee, the Movement for Quality Government in Israel, as well as Yesh Atid and various individuals, submitted petitions to the High Court of Justice asking that the minister be required to convene the Committee, arguing that the minister is obligated to do so within an appropriate time frame when judicial positions become vacant. The date for this hearing was set for November 12, 2023, and November 5 was the final date for the minister of justice and the government to submit their response to the petition to the Court. Thus Minister Levine’s decision is clearly linked to the hearing. According to the Court, the minister’s new announcement would appear to render the petition irrelevant. The petitioners have been given two days to notify the Court of whether they still intend to pursue their case.
By law, the Judicial Selection Committee comprises two ministers (the minister of justice, who also chairs the Committee, and another minister chosen by the government), two members of Knesset (customarily, one from the governing coalition and one from the opposition), three judges (the president of the Supreme Court and two other Supreme Court justices), and two representatives of the Israel Bar Association. In practice, however, the government is yet to appoint the second minister to serve on the Committee (this will have to be a female minister, as the law requires that at least one of the government’s representatives is a woman), and thus it currently contains only eight of its nine members.
The minister of justice has announced that he will only bring before the Committee “decisions about which there is broad consensus.” It is not entirely clear what this means. However, it should be noted that in any case, according to the law, the selection of justices to the Supreme Court requires the agreement of at least seven of the nine members of the Committee.
- Sub-committees: Since the composition of the Committee has changed since it was last convened, the Committee needs to select some of its members to its various sub-committees. Much of the work of the Judicial Selection Committee is actually carried out by these sub-committees.
- President of the Supreme Court: A new president needs to be appointed to the Supreme Court. Since the retirement of the former president, Justice Esther Hayut, on October 16, 2023, and because the justice minister has not convened the Committee to appoint a new president, the post is being filled by the deputy president, Justice Uzi Vogelman.
- New judges for the Supreme Court and other courts: There are a number of vacant positions in Israel’s court system, most notably for two Supreme Court justices (out of 15 justices who are supposed to serve in the Supreme Court). In the rest of the courts, as of July 2023 there were 21 vacant positions for judges and court recorders that were awaiting appointments (according to data from the Judicial Branch). Since then, further positions have become vacant, and according to data from the Judicial Branch, a further 22 judges and senior court recorders are scheduled to retire before the end of 2023, while an additional 11 new positions will need to be filled. Thus, a total of 54 positions will be vacant by the end of next month, out of a total of 799 judges and 73 court recorders who were serving at the end of 2022.
- Ombudsman of the Israeli Judiciary: The current ombudsman’s term of office will conclude on November 12, and by law, it cannot be extended. The power to appoint a new ombudsman lies with the Judicial Selection Committee, with candidates needing to be jointly recommended by the minister of justice and the president of the Supreme Court. It is worth noting that a government bill currently being discussed in the Knesset seeks to amend this law, using a temporary law that will be valid for a year, in order to enable an extension of the term of office of the serving ombudsman without having to convene the Judicial Selection Committee .
- Judges emeritus: Recently, the justice minister and the acting president of the Supreme Court, Justice Uzi Vogelman, announced their intention to appoint judges emeritus (judges who have already retired) to positions in magistrate courts, district courts, and labor courts. They have the power to do so, but if a member of the Judicial Selection Committee lodges a complaint within 45 days from the date on which this announcement was made, then the Committee will have to hold a discussion and decide whether to approve the appointment in question.
According to the Judiciary Rules (Procedures of the Judicial Selection Committee), discussions of specific candidates can only be held by the Committee if notification of their candidacy was published in Reshumot (the gazette of record for the State of Israel) at least 45 days beforehand. Therefore, if the upcoming meeting is indeed held within 15 days, it will not be possible to discuss judicial candidacies. These Rules do not apply to the appointment of the president of the Supreme Court.