Understanding the Supreme Court's Ruling: Selection of the Supreme Court President

The Israeli Supreme Court recently issued a pivotal ruling, instructing the Minister of Justice to convene the Judicial Selection Committee and select a new President of the Supreme Court. This decision come after nearly a year in which this permanent position has remained vacant. The dispute raises critical questions about the independence of the judiciary and the potential for a constitutional crisis if the Minister refuses to comply.

Justice Isaac Amit, the leading candidates for the position of President of the Supreme Court.

What was the Supreme Court ruling?

The Supreme Court, sitting as the High Court of Justice (HCJ) with a panel of three justices (Yael Willner, Ofer Grosskopf, and Alex Stein), ruled unanimously that the minister of justice must publish in Reshumot (the official gazette) the list of candidates for the position of president of the Supreme Court within 14 days, and must convene the Judicial Selection Committee to choose a new president closely after the 45-day waiting period following this publication, as per the rules of the Committee.

The background to the ruling

On October 16, 2023, the then president of the Supreme Court, Justice Esther Hayut, stepped down, having reached the mandatory retirement age of 70. In addition, Justice Anat Baron also retired from the Supreme Court in October 2023, and Justice Uzi Vogelman is due to retire next month (October 2024). Consequently, there is a need to appoint a new Supreme Court president from among the current serving justices, and to appoint three new justices, as the Court currently has 13 serving justices out of the 15 it is supposed to have, as per the decision of the Knesset.

The president of the Supreme Court is formally appointed by the president of Israel after being chosen by the Judicial Selection Committee from among the serving justices on the Supreme Court. While the law states that the selection of Supreme Court justices by the Judicial Selection Committee requires a majority of seven Committee members out of the nine members on the Committee (while the appointment of judges to other courts requires merely a simple majority), the law does not explicitly state that a special majority is required for choosing a Supreme Court president. The accepted practice is that the president is selected based on seniority, that is, the Committee selects the justice who has served on the Supreme Court the longest. This practice, of automatically selecting the longest-serving justice as Supreme Court president, is designed to ensure the independence and stability of the Court and to prevent politicization of the appointment process.

The minister of justice decided that he would not bring contentious issues to the Judicial Selection Committee for discussion, such as the appointment of a new Supreme Court president, unless there is broad consensus among the Committee members. Thus, no president has been appointed, and two Supreme Court justices have not been selected.

Due to the fact that no new president has been appointed to replace former Justice Hayut, the acting president is currently Justice Uzi Vogelman, who was the deputy president under Hayut. This is in accordance with section 29(a) of the Courts Law, which states that if the position of Supreme Court president is vacated and the new president has yet to assume the role, then the deputy president will perform the duties of the president. The current situation is unprecedented in the history of the Supreme Court. Since 1948, the longest-serving justice on the Supreme Court has always replaced the outgoing president within a short time (up to a month) after the latter’s retirement.

The reasoning given by the justices in the ruling

First, the three justices ruled that the law should be interpreted as meaning that the selection of a new Supreme Court president requires the agreement of a simple majority of the members of the Judicial Selection Committee who participate in the vote, and not a seven-member majority as is required for selecting a new justice to the Court. In this regard, the justices rejected the position put forward by the minister of justice.

Second, the justices recognized that the minister of justice has some discretion on the question of when to convene the Committee in order to choose a Supreme Court president, and is entitled to take into consideration the issue of reaching a broad agreement. Thus, the justices also respected the minister’s judgement, and delayed their ruling so as to allow him to complete the necessary discussions and achieve broad agreement among the Committee members regarding the appointment of a president of the Supreme Court.

However, they ruled that at the current time, the justice minister’s policy of achieving broad agreement means to negate the main purpose of the law, which is “the prevention of a situation in which there is no permanent president of the Supreme Court; and of the harms and damages caused to the Supreme Court, the judiciary, and the law enforcement system due to the aforementioned non-appointment of a president.” This was stated in the context of the fact that the justice minister’s policy has been preventing the appointment of a Supreme Court president “for over a year” (in the words of Justice Willner), “as we reach a point of systemic paralysis” (in the words of Justice Stein), and when “there is an acute systemic need for the appointment of a president” (Justice Grosskopf). In this situation, the justice minister’s policy “is changing the mechanism prescribed in law for selecting a Supreme Court president, and thus diverges from the requirements of the law” (Justice Willner). Therefore, the Court ruled that the minister must fulfill his obligation and convene the Committee in order to select a president.

Third, the Court rejected the justice minister’s arguments of a conflict of interests on the part of the Supreme Court justices themselves. As Justice Willner explained, the appointment of a permanent president to the Supreme Court is not a personal interest of the justices, but rather is in the interest of the entire public, as appointing a president is essential to the proper functioning of the judiciary.

What about the necessary appointments of new Supreme Court justices?

On this matter, the Court rejected the petition demanding that the minister of justice be required to convene the Judicial Selection Committee in order to select the justices currently lacking from the Supreme Court. The Court ruled that there is no grounds to intervene in the minister’s decision at this stage, because the minister’s policy—of securing broad agreement over the selection of justices, and not convening the Committee until such agreement is in place—does not ignore the aims of the law, which requires a seven-member majority out of nine Committee members.

Separate representation

The minister of justice was represented in this Supreme Court case by separate private legal counsel, for which the attorney general had given her permission. Regarding the obligation to convene the Judicial Selection Committee in order to choose a new president for the Supreme Court, the Court rejected the justice minister’s position and accepted the position of the attorney general.

Are we drawing closer to a constitutional crisis?

It is to be hoped that the basic principles of every democratic state committed to the rule of law will be upheld, and that the minister of justice will respect the ruling of the Supreme Court. If the minister does so, there is no prospect of such a crisis. However, if the minister of justice refuses to abide by the Court’s ruling and does not convene the Judicial Selection Committee, then we will indeed be entering the realms of a constitutional crisis.

In the ruling, Justice Willner clearly stated that even when the current acting president, Justice Vogelman, retires, “there will not be a vacuum in the management of the judiciary.” That is, until the appointment of a new president, Justice Yitzhak Amit will serve as acting president in accordance with section 29(b) of the Courts Law, according to which, during such a period, “the longest-serving justice on the Supreme Court will serve as acting president.”

At the same time, in light of the response of the justice minister to the ruling, it is not clear whether he will cooperate with the president of the Supreme Court chosen by the Judicial Selection Committee, when it is convened. If he does indeed carry out his threat, this will damage the functioning of the judiciary, given the powers over the courts that the minister and the president must wield cooperatively and consensually, such as various appointments within the court system.