Ministers Levin and Saar's Proposed Changes to the Judicial Selection Committee

Justice Minister Yariv Levin and Foreign Minister Gideon Sa’ar presented their proposed changes to the composition of the Judicial Selection Committee (JSC) as a compromise aimed at achieving a gradual change in the judicial selection process, but many constitutional experts worry that the plan will have dire consequences resulting in the politicization of Israel’s judicial selection process.

Photo by Yonatan Sindel/Flash90

Justice Minister Yariv Levin and Foreign Minister Gideon Sa’ar have presented their proposed changes to the composition of the Judicial Selection Committee (JSC) as a compromise aimed at achieving a gradual change in the judicial selection process.

But many constitutional experts – including at IDI – worry that the plan will have dire consequences in terms of the principles underlying the judiciary, resulting in the politicization of Israel’s judicial selection process. They also note that the plan endangers the protection of basic rights and contains no guarantee that the rest of the overhaul will be shelved.

What is the current makeup of the Judicial Selection Committee?

The composition of the Judicial Selection Committee (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:

1. 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.
2. In Israel, again unlike most democracies, the arrangements that 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.

What changes did Justice Minister Yariv Levin and Foreign Minister Gideon Sa'ar propose to the Judicial Selection Committee?

Ministers Levin and Sa’ar propose replacing the two representatives of the Israeli Bar Association on the Judicial Selection Committee with one representative from the coalition and one from the opposition, both of whom must be attorneys. Judicial selection across all courts would require a simple majority in the committee, as opposed to the current supermajority of seven members for appointments to the Supreme Court. For Supreme Court appointments, at least one member from the coalition and one from the opposition must agree (effectively granting veto power to the coalition and the opposition). For other courts, approval would also require the consent of one judge. If no agreement is reached on Supreme Court selection within a year, Levin and Sa’ar suggest that the coalition and opposition representatives each present three candidates, from which the opposing side, together with the judicial representatives, would select one (currently, candidates may be proposed by the Minister of Justice, the President of the Supreme Court, or three members of the committee).

Why do Ministers Sa'ar and Levin claim such changes are necessary?

The Ministers claim that these changes are a compromise necessary for increasing the “diversity’ of the judiciary and preventing the ability of the Supreme Court justices to block a candidate that they oppose. In presenting their plan, they contended that the current system has not worked in the past two years in terms of reaching agreements on candidates. They also presented their plan as a means of preventing a constitutional crisis due to the disagreements on the issue of selection of judges, and particularly due to the Supreme Court’s deadline of selecting a permanent chief justice. 

What would be the implications of these changes?

Rather than a compromise containing a gradual adjustment as it has been portrayed, the unilateral framework formulated by the two ministers represents a revolutionary shift. The current committee structure, which gives a majority to independent professionals rather than elected officials, would be replaced under the Levin-Sa’ar plan by a majority of political representatives—even if two have a legal background. Furthermore, the entire mechanism would rely on mutual vetoes between coalition and opposition representatives, and in cases of "deadlock," only they could propose candidates. This shift would mean that anyone aspiring to a judicial appointment at any level in Israel would know that their path to selection and promotion depends solely on political alignment. Even more problematic is what is referred to as the “deadlock scenarios.” In this case, each political camp would be incentivized to nominate the most ideologically extreme candidates to further their agenda. Professional qualifications would be sidelined entirely.

This would seriously damage the foundational principles underlying the current judicial appointment system. Should this plan proceed, judicial selection—from magistrates to district courts and the Supreme Court—would be determined by political affiliation or partisan loyalty rather than professional merit or adherence to the law. Supreme Court justices selected based on their political affiliation, rather than their professional expertise, would lack the competence and independence necessary to guide complex legal doctrine in civil and criminal matters or to rule against the government when it exceeds its authority or violates human rights. A magistrate judge might fear angering their political patron when ruling on arrests in protests, and a criminal judge might hesitate to convict a government minister for corruption, fearing a veto on their promotion. Ultimately, every judicial promotion decision would hinge on the political stance and loyalty of the candidates, rather than on their professionalism or on social diversity. In short, this plan would have dire consequences in terms of the principles underlying the judiciary, bringing about the politicization of judicial appointments, downgrading the importance of professional considerations in appointments and promotions, and infringing on the independence of judges.

How does this fit in to the "judicial overhaul" proposal from 2023?

While not as extreme in the concentration of powers at the hands of the parliamentary majority as the previous “judicial overhaul” proposals, the current proposal severely undermines the principles underlying the judiciary, as it aims to curtail the ability of the courts to fulfill their duties in preserving the rule of law. It does so by politicizing the selection and promotion of judges, thus infringing on judicial independence.

What else is in the Levin-Saar Proposal? What do we know about these initiatives?

Other parts of the proposal include an incomplete and vague proposal for a Basic Law: Legislation, as well as a proposal for adding a basic law protecting the right to due process of law in criminal proceedings. It is difficult to address these proposals due to their vague nature (e.g., they mention that the legislative process would be different for basic laws than from regular legislation, which would set a higher bar on basic law legislation and protect it from being used for “coalitionary demands,” but they did not detail the specifics of the legislative process).

This otherwise vague proposal does include very specific curtailment of the Supreme Court’s powers of judicial review, prohibiting its review of basic laws (except basic laws infringing on equal elections, and even then, only with a three quarters majority of the justices), which means that any legislation designated as a “basic law” would be essentially immune from judicial review. Furthermore, the proposal also suggests requiring that judicial review of regular legislation can only be possible through a decision supported by a majority among all the justices of the Supreme Court’s bench (which usually stands at 15 justices), sitting in a panel of 9 or more. Due to the current workings of the Supreme Court, this stipulation means that it will be almost impossible for the Supreme Court to strike down legislation, and that its ability to protect basic rights will be significantly diminished.