Judicial Selection in Israel in the Aftermath of the Judicial Overhaul
With the outbreak of the war in October 2024, the Prime Minister announced that he was halting all legislation relating to the judicial overhaul, however, various government actions raise questions regarding its intentions in relation to the overhaul and whether it might be trying to advance it by other means beyond legislation.
Israeli president Isaac Herzog, Justice Minister Yariv Levin and Acting president of the Supreme Court Uzi Vogelman at a swearing in ceremony for newly appointed judges at the President's residence in Jerusalem, on June 23, 2024. Photo by Chaim Goldberg/Flash90
The question of judicial appointments and the method for doing so stood at the core of the government’s proposed judicial overhaul in 2023. With the outbreak of the war in October 2024, the Prime Minister announced that he was halting all legislation related to the overhaul. However, to this day the Justice Minister, who chairs the Judicial Selection Committee, has refused to move forward with the appointment of replacements for Supreme Court justices who have retired – including the President of the Court. This has not only created a vacuum and uncertainty in Israel’s highest court but has raised questions about the government’s intentions regarding the overhaul and if it is trying to advance it by other means beyond legislation.
Several members of the government and the coalition, including Prime Minister Netanyahu, have stated that during the war the Judicial Overhaul “is not on the agenda.” Yet there are reports that the Minister of Justice has stated that the government must go through with Judicial Overhaul. Indeed, in several ways, the government and the coalition continued to pursue similar objectives but through policy and practices rather than through legislative change. For instance, since the retirement of the President of the Supreme Court in October 2023, the position has been filled by a temporary acting president. This is an unprecedented event in the history of the Supreme Court of Israel. A permanent president has not been appointed because the Minister of Justice refuses to select a president in accordance with the seniority principle that is always applied by the Judicial Selection Committee (JSC). The positions of two justices of the Supreme Court also remain empty since October 2023. Since the start of the war, the Minister of Justice has begun to convene the JSC, unlike the period of the Judicial Overhaul, during which time the Minister of Justice did not convene the JSC, despite a dire need for judges. Reportedly, over 150 positions of judges and court registrars have been filled in recent months. However, the Minister is demanding that every selection be agreed upon with a “broad consensus” of the JSC—which in practice means with his approval. He is doing so despite the fact that by law, only a simple majority is required for the JSC to select judges to the lower courts.
The lack of an appointment of a permanent president of the Supreme Court already makes the Supreme Court more vulnerable, because the President of the Supreme Court not only has important judicial powers, but also has crucial leadership roles and powers in court governance that act as a check the Minister of Justice’s powers in this sphere and preserve judicial independence.
In a recent Supreme Court hearing, one of the justices questioned the interpretation of section 29 of the Courts Law. According to this law, the most senior justice on the Supreme Court would automatically replace the acting President in this role after the Acting President retires in October 2024, or if in fact that position would remain vacant, making it difficult for the Supreme Court and the rest of the judiciary to function. However, in that Court hearing, the legal counsel representing the Minister of Justice assured the Court that according to his interpretation of the law, the most senior justice on the Supreme Court would automatically become acting President.
In February 2024, a petitioner asked the Court to issue an injunction against the Minister of Justice requiring him to convene the JSC to select a Supreme Court president and two justices. In the Court hearing, on July 18, the justices explicitly expressed their reticence to issue an injunction due to the sensitivity of the subject matter. The justices ended the Court hearing by saying that reaching an agreement between all parties involved is preferable, and thus decided that by August 8, the Minister would inform the Court of the status of the negotiations on the matter, after which the Court would decide how to proceed with the case. On August 8 the Minister informed the Court that negotiations are taking place, and more time is needed in order to reach an agreement. The Court decided that the Minister would submit another update by August 26.
The past few months have seen the government attempting to undermine various institutions protecting the rule of law in Israel. As for the judiciary, beyond judicial appointments, the government has been attempting to infringe on judicial independence in other ways. For example, the Chairperson of the Knesset’s Constitution, Law and Justice Committee has called for the removal of a judge who decided to protect the rights of some of those arrested in protests against the government. Additionally, a bill was promoted according to which the Knesset, instead of the Judicial Selection Committee, would appoint the Ombudsman of the Judiciary, a position that has been vacant since May. The government has also acted to undermine the ability of other institutions to protect the rule of law, such as the attorney general (rhetorically attacking her for fulfilling her duties) and the police (trying to politicize it).
In Israel, judges of all the courts including Supreme Court justices are formally appointed by the President of the State of Israel, in accordance with the selection of the Judicial Selection Committee (JSC). Although rare, the JSC may also remove judges from office by a decision adopted by at least seven of its nine members.
The composition of the JSC aims to balance representation of “professional” and “political” actors, and is made up of representatives of all branches of government—two ministers, two members of Knesset, and three Supreme Court justices—as well as two representatives of the Israel Bar Association. Such a composition supports the principles of judicial independence and judicial accountability. The composition of the JSC is also suitable because the courts in Israel deal mainly with legal issues that have no constitutional ramifications. Only a small number of cases before the Supreme Court raise constitutional questions, while most of the thousands of cases it hears each year concern appeals in civil, criminal, and administrative issues, and it is in the public’s interest that the justices who hear them are the most qualified jurists who make their rulings on the basis of professional legal standards.
The current balance between the politicians and the professionals, which safeguards judicial independence, is especially important for the following reasons:
- In Israel, unlike most democracies, the judiciary serves as almost the only check on the Government’s power. Israel does not have a bicameral legislature or a president who is elected independently and wields executive authority; there is no division of power in the form of a federal system or other mechanisms that provide checks and balances.
- In Israel, again unlike most democracies, the arrangements to guarantee the independence of judges, such as tenure, retirement age, and mode of appointment and removal, are not anchored in a constitution, but rather are stipulated in a Basic Law, which can be amended by a simple majority in the Knesset.
The chairperson of the JSC is the Minister of Justice. According to the law, when the Minister sees the need for a judicial appointment, he convenes the JSC. Only the following may propose candidates for the open position: the Minister of Justice, the President of the Supreme Court, or three members of the JSC acting jointly. The JSC determines the rest of its working procedures.
The JSC also selects judges for promotion. Since 2008, decisions to select justices for the Supreme Court necessitate a seven‑member majority of the JSC, as opposed to selection to all other courts which requires a simple majority of the JSC.
The President of the Supreme Court in Israel is selected by the JSC among the justices of the Supreme Court. Customarily, the JSC has always selected the senior justice on the Supreme Court bench to serve as its President, according to the informal principle of seniority.
As noted, the Judicial Selection Committee (JSC) is composed of politicians, judges, and Bar Association members, with a balanced composition which is important for the reasons outlined above. Since 2008, the selection of Supreme Court justices has mandated the consent of the politicians on the JSC, because a majority of seven of its nine members must support a successful candidate. By the same token, the politicians cannot select justices without the agreement of the justices on the JSC. This principle has generally produced a consensus on a slate of new Supreme Court justices.
The fact that Knesset members and ministers can influence the choice of justices (especially in such a way that reflects different sectors of the population), while maintaining the judges’ independence, guarantees the continued independence of the judiciary and the appropriate balance between the three branches of government.
The current system therefore allows the elected coalition to influence the composition of the courts, and especially the Supreme Court.
The method by which judges are chosen for the lower courts in Israel is not exceptional and can be viewed as part of a worldwide trend to adopt a model of this nature, based on a committee (e.g., judicial councils or judicial appointment commissions) made up of representatives of different sectors, with great weight or a majority given to sitting judges.
The method by which Israeli Supreme Court justices are chosen is also not an outlier in a comparative perspective. In many democracies there are checks, balances, and limits on the ruling party or head of state, intended to moderate the politicization of the selection of justices—for example, in the United States, the President nominates and the senate confirms the appointment of Supreme Court justices. Several mechanisms can be identified:
- A nominating committee that includes legal professionals, or appointments made only after consultations with professionals: Great Britain, India, Greece, Israel, Canada, Australia, and elsewhere.
- Selection by each of the three branches of government or a requirement that several independent branches cooperate: The United States, France, Belgium, Austria, Mexico, Italy, Spain, and elsewhere.
- Consensus through a qualified majority in Parliament between the parliamentary coalition and opposition: Germany, Belgium, Italy, Spain, Portugal, and elsewhere.
What was proposed during the 2023 judicial overhaul regarding judicial appointments?
In short, the government attempted to change the composition of the Judicial Selection Committee (JSC) in a way that would give representatives of the coalition and the government a majority on the JSC and complete control over judicial selection and promotion.
The first version of the proposal suggested that the JSC would be composed of nine members, of which five would be from the government and the coalition (three government ministers and two members of Knesset from the coalition), along with a proposal that Supreme Court justices be appointed by a simple majority. In such a system, the government and its parliamentary coalition would be able to control the selection of judges to all courts—lower courts and the Supreme Court alike.
In light of massive resistance to this proposal from the opposition and the public, after it passed first reading in the Knesset and towards the final second and third readings (this is the final approval of a bill), the government presented a revised version of the proposal, arguing that it was less extreme. In this version too, the government and its parliamentary coalition would constitute a six-member majority of a newly proposed11-member JSC. Yet this proposal suggested a complex decision-making mechanism for the JSC. For appointing Supreme Court justices, within a term of a Knesset, the JSC would select two justices with an absolute majority (six members of the JSC), one justice with an absolute majority that includes a JSC member of Knesset from the opposition, and the rest of the justices with an absolute majority that includes a JSC member of Knesset from the opposition and a JSC member who is a Supreme Court justice. The JSC would select judges to lower courts with a seven-member majority. As for appointing the presidents of the Supreme Court, the JSC would select them with an absolute majority. Since the government knew that two justices of the Supreme Court would retire in October 2023 upon reaching the mandatory retirement age of 70, including the Supreme Court President, the bill would have allowed the government to replace them with justices of its choosing. With a president of the Supreme Court who is loyal to the government, the government would quickly gain control over the selection of judges to the lower courts under this system as well.
The bill was approved by the Constitution, Law and Justice Committee of the Knesset for a second and third reading, and so it was set and expected to be passed into law by the Knesset’s plenum in the final readings, which are usually voted upon successively in a single meeting. Yet, at the end of March 2023, faced with growing public demonstrations and a general strike, Prime Minister Benjamin Netanyahu declared a pause in this legislative process.