Israel’s Renewed Judicial Overhaul

The “seven-front war” against Israel, which followed the atrocities of Oct. 7, 2023, and Israel’s full invasion of the Gaza Strip, has recently shown clear signs of receding. Ceasefire agreements regarding hostilities in Lebanon and the Gaza Strip have entered into force in recent weeks, and other regional developments in Syria, Iran, Iraq, Yemen, and the West Bank reduce the immediate security threat posed to Israel. Yet some members of Israel’s ruling right-wing coalition have interpreted the improvement in Israel’s geo-strategic situation as a green light for them to revive their long-held “judicial reform” agenda and to reignite some of the tensions that tore apart Israeli society in the months leading up to the Oct. 7 attack.

Led by Justice Minister Yariv Levin, with the active support of Foreign Minister Gideon Sa'ar (a former justice minister in Naftali Bennet and Yair Lapid’s centrist government) and member of the Knesset (MK) Simcha Rothman (the chair of the Knesset’s Constitution, Legislation and Justice Committee), this incarnation of the judicial overhaul seeks to strike a new balance (or, according to proponents, to restore an old balance) between the branches of government. It exploits the general public’s fatigue after 16 months of armed conflict and the domination of the public agenda by war-related issues, which render concerns about the new push for judicial reform less visible and less excitable. Furthermore, Levin and his associates appear to have learned some tactical lessons from the previous round of political infighting around the reform, and put on the table a somewhat less extreme and more focused proposal. Still, parallel developments around specific judicial appointments suggest that, at least for Levin, this represents a change of tactics—not strategy.

We survey two recent developments illustrating that the fight over the configuration of Israel’s legal system has resumed. First, there is a new push by Levin (and Sa'ar) to alter the composition of Israel’s Judicial Selection Committee, moving from a system in which there exist strong professional safeguards against appointing under-qualified Supreme Court judges to a system of political appointments. Second, the recent showdown between Levin and the current Selection Committee over the appointment of Justice Yitzhak Amit as Supreme Court president has set the stage for a full-blown constitutional crisis.

Significantly, these developments take place against the background of several other measures undertaken by the government, which are likely to erode the Israeli system of checks of balances. These include calls by government ministers to fire the attorney general; a governmental decision to limit the term of service of certain governmental legal advisers; and the refusal by Minister Levin to appoint a new judicial complaints ombudsman (the ombudsman is responsible for enforcing on judges an ethical code of conduct—the justice minister and the Supreme Court president have to agree on his or her identity). In parallel, members of the coalition have been pursuing a bill intended to dilute the power of the Supreme Court president in the ombudsman appointment process, as well as opposing the establishment of a state commission of inquiry— headed by a current or former Supreme Court judge—to investigate the events leading up to Oct. 7 and the subsequent conduct of the war.

The picture that emerges from these and other initiatives is of a constant effort by the ruling coalition to move power away from legal and professional bodies to the political branches of government, often accompanied by populist rhetoric about restoring the power to govern to elected representatives.

The Judicial Selection Committee Revisited

On Jan. 4, 2023, only a week after Benjamin Netanyahu’s sixth government was formed, Justice Minister Levin presented his plan for judicial overhaul. The plan included several components, all intended to strengthen the power of the ruling coalition at the expense of the judicial branch. One of the pillars of the plan was a reform of the Judicial Selection Committee, which is entrusted with appointing judges for all judicial instances in Israel.

The Judicial Selection Committee currently comprises nine members—two government ministers (one of whom is the justice minister, who serves as the chair of the committee), two Knesset—parliament—members (traditionally, a member from the coalition and a member from the opposition), three Supreme Court justices (typically, the three most senior judges on the court) and two representatives of the Israeli bar. This composition, which places politically independent legal professionals—judges and lawyers—in the majority, is designed to ensure that the principal consideration in judicial appointments is professional in nature, and that the dependency of judges on politicians for their appointment and promotion remains limited in scope. 

A 2008 amendment to the 1984 Courts Law provided that appointments to the Supreme Court require a supermajority of seven out of nine members, effectively giving two subgroups on the committee—the three representatives of the coalition and the three Supreme Court judges—veto power over Supreme Court appointments (provided that they vote together, which is typically the case). The 2008 change was designed to promote consensual appointments and to allow politicians to exert more influence on the identity of Supreme Court judges in the aftermath of the 1995 “constitutional revolution judgment” (Bank Hamizrachi v. Migdal), in which the court asserted that it may strike down Knesset laws that conflicted with the 1992 basic laws on human rights. At the same time, the ability of the judges on the committee to block appointments to the Supreme Court preserved the professional integrity of the institution.

The original plan presented by Minister Levin in his 2023 speech, in which he criticized judicial overreach—included a change to the composition of the Judicial Selection Committee, with the aim of granting the coalition control over judicial appointments to all instances. The original bill reflecting Levin’s proposal was preliminarily adopted by the coalition-controlled Knesset Constitution, Legislation and Justice Committee. A slightly revised bill, also reflecting the Levin proposal, passed first reading in the Knesset in March 2023 but did not proceed to second and third readings in the Knesset. In fact, the entire judicial overhaul plan ran into strong public opposition, and it was subjected to a temporary freeze following unprecedented mobilization of Israeli civil society. Such opposition coincided with hesitations inside the coalition about the propriety and political viability of the package of reforms and serious doubts expressed by legal experts regarding their constitutionality.

At first blush, the current proposal, introduced by Levin and Sa'ar on Jan. 9, is more moderate than the 2023 proposal. First, the support of Sa'ar—a centrist on matters relating to judicial reform, who, as a minister of justice (2021-2022), tried to advance moderate judicial reforms by building broad political consensus around them—has been presented by some coalition supporters as an historical compromise between different approaches to judicial reform (notwithstanding the fact that Sa'ar and his small “New Hope” party has rejoined the Netanyahu coalition and is trying to find his way back to the ranks of Netanyahu’s own Likud party, from which Sa’ar withdrew in late 2020). This conciliatory messaging was further enhanced by the endorsement of the Levin-Sa'ar proposal by two bereaved parents who lost their sons in the recent war—Izhar Shai, a former government minister who is affiliated with the current opposition (he belonged at the time to Benni Ganz’s Blue and White party, now called “The National Unity” party), and Dedi Simhi, a former state official close to several Likud ministers—and who jointly called to adopt the Levin-Sa'ar proposal in order to promote national unity.

Second, the substance of the new proposal is indeed less radical and more politically balanced than previous proposals put forward by Levin and Rothman. Unlike those proposals, it does not grant the coalition full control over judicial appointments; rather, it divides such power between the coalition and opposition, at the expense of the judges, whose power is marginalized under the proposal, and the bar association, whose involvement in judicial appointments is eliminated altogether. Perhaps most significantly, the proposal will enter into force, according to its own terms, only after the next Knesset elections, whereas the original Levin proposals envisioned immediate application (and therefore constituted a real-time change in the “rules of the game”, resulting in the coalition self-empowering itself). Should the current coalition be voted out of office, as most current polls predict in the next elections, the reform could be reevaluated.

However, deeper scrutiny of the proposal reveals why, despite its moderate outlook, it is still unacceptable to the opposition and to many in the liberal camp in Israel. Under the proposal, which is now being discussed by the Constitution, Legislation and Justice Committee as an amendment to the bill that passed first reading in March 2023, the appointments committee will be only slightly reconfigured. The two members of the bar association—an independent professional association, which currently supports strong judicial review (and thus the appointment of activist judges)—will be replaced by two other lawyers, one designated by the coalition and one by the opposition. The removal of representatives of the bar association from the Judicial Selection Committee is one of several aggressive legislative measures taken by the coalition, arguably as revenge for the association’s strong opposition to the 2023 judicial overhaul plan. These other measures include a law imposing limits on the fees collected by the bar and a legislative proposal to render membership in the bar association, which is currently mandatory for those who practice law in Israel, voluntary in nature.

Under the Levin-Sa'ar proposal, the coalition will effectively control four out of the nine votes on the committee (two ministers, one coalition MK, and one coalition-designated lawyer), and the opposition will effectively control two votes (one opposition MK and one opposition-designated lawyer). This will result in a change of the balance of power on the appointments committee from professionally oriented (five politically independent judges and lawyers versus four politicians) to politically oriented (three independent judges versus six politicians and lawyers designated by politicians).

The proposal has a few additional components that are likely to increase the politicization of the appointment process. First, appointments to all judicial instances except the Supreme Court require a simple majority but must include, under the new proposal, one member representing each of the three subgroups that comprise the reconfigured committee—coalition, opposition, and judges. This gives all three subgroups a potential veto power over judicial appointments that they strongly oppose.The effective right of veto granted to both the coalition and opposition might imply that lower-instance judges who rule in ways that are unacceptable to the major coalition or opposition political parties would never be promoted—a situation that could deter judges from adopting politically unpopular decisions, undermining judicial independence and impartiality.

Second, with regard to appointments to the Supreme Court, the proposal requires that they be supported by at least one member representing the coalition and opposition (but not that they have the support of any of the judges on the committee). It also does away with the 2008 supermajority requirement of seven out of nine votes, going back to a simple majority rule of five out of nine. As a result, it would be possible for politicians to appoint Supreme Court judges without any independent professional input. The most likely scenario that would emerge from this decision-making configuration is political deals for cross-appointments—that is, simultaneous appointments of coalition- and opposition-supported candidates. In fact, the proposal explicitly provides that in the event of a deadlock—defined as a period of one year in which there were at least two vacant seats on the Supreme Court—cross-appointments will be made (under the proposal, the coalition will present to the opposition a list of three nominations from which it will pick one nominee, and vice versa).

The upshot of the new modality proposed for judicial appointments is a move from a system in which there exist relatively strong professional safeguards against appointment of underqualified Supreme Court judges, to a system of political appointments in which judges would be labeled as coalition or opposition nominees. While such a system involving the explicit or implicit political identification of judges already exists in courts in some countries (e.g., U.S. federal courts and the German Constitutional Court), it runs contrary to notions of judicial independence, impartiality, and professionalism long accepted in the Israeli legal system, as well as to the tendency to appoint by consensus or broad agreement judges who are widely recognized as suitable for office. In an age of deep polarization, this development is unlikely to increase trust in the judiciary’s independence and impartiality.

In fact, under the proposed mechanism, there may be a structural incentive for deadlock, allowing the politicians on the Judicial Selection Committee to nominate the most hardline or least independent candidates, who will fight hardest to express their political positions and interests. In other words, against the background of a highly polarized political system, the proposed system of judicial appointments would likely result in polarization of the judicial bench as well (as appears to have happened in the U.S. Supreme Court in recent years).

Criticism of the new proposals by former judges, leaders of the bar association, academics, and think tanks (including the Israel Democracy Institute, for which both of us work) may result in some changes in the final version of the bill, which will be put to a vote in second and third reading in the Knesset soon. Some critics do consider the proposal to contain positive elements that can serve as a basis for political negotiations, but other experts question the legitimacy of current government efforts to push for a legal reform given its responsibility for the Oct. 7 failure. In any event, at the time of writing, the prospects of some version of the bill being passed into law appear to be quite high. Furthermore, Levin and Sa'ar have already indicated that they plan to move thereafter to regulate the power of the court to strike down laws and basic laws, reflecting their intention to continue to advance in general contours—even if not in precise details—the 2023 judicial overhaul proposals.

The Battle Over the Presidency of the Court

The new proposal for judicial reform has coincided with a related development: a sharp escalation in the battle for judicial appointments under the existing appointment system. Since the government took office in late 2022, the Judicial Selection Committee, chaired by Minister Levin, has appointed 168 judges to all judicial instances except the Supreme Court. No appointments have been made to the Supreme Court, since the supermajority of seven out of nine committee members could not be reached. This is largely attributable to Levin’s insistence on pushing the candidacy of two ultraconservative candidates (Aviad Bakshi and Raphael Bitton—two of the chief architects of the 2023 judicial overhaul plan), both unacceptable to the six members of the committee, who do not represent the coalition. The upshot is a deadlock in Supreme Court appointment, despite the availability of three vacant seats on the court (due to three judges reaching the mandatory retirement age of 70). Since all three judges who retired in the past two years have been members of the liberal camp, the policy of non-appointment has resulted, in and of itself, in a conservative shift in the court’s orientation. At the same time, with a truncated bench, the court—which sits in most cases in panels of three judges—is struggling to handle its significant caseload.

Still, even more serious than the situation of appointments to the Supreme Court is the situation regarding the presidency of the court. Unlike other Supreme Court appointments, the appointment of the president is not subject to the supermajority rule, and requires only a simple majority on the Judicial Selection Committee. Furthermore, the unbroken tradition since the establishment of the court in 1948 has been to appoint as president the longest-serving judge on the day that the outgoing president steps down (this is referred to as the rule of seniority—a norm designed to entrench the judicial independence of the Supreme Court). Levin opposes the seniority rule and has advocated instead for the appointment of Yosef Elron as president, one of the more conservative judges on the Supreme Court—notwithstanding the fact that there are other, longer-serving judges in line before him.

Since Levin controls only three votes out of the nine on the Judicial Selection Committee, he does not have the ability to deviate from the unwritten seniority rule. He chose instead to frustrate the appointment, pursuant to the seniority rule, of Judge Yitzhak Amit (who is part of the “liberal camp” on the bench) as Supreme Court president. Following the retirement of President Esther Hayut in October 2023, Levin refused to put the appointment of a new president on the agenda of the Judicial Selection Committee or to convene the committee until all members agree on the next president. As a result, for 15 months the court has been managed by acting presidents—Judge Uzi Vogelman followed by Amit (the Courts Law provides that the longest-serving judge should serve as acting president until one is formally appointed by the Judicial Selection Committee). While acting presidents have the same legal authority as formally appointed presidents, the lack of formal appointment has been viewed as an attempt to downgrade the status of the judicial branch in Israel and to put in question the authority and term of service of its head of branch—the Supreme Court president.

The refusal of Minister Levin to put to a vote the appointment of a Supreme Court president has been challenged in the Supreme Court itself by a public interest nongovernmental organization, the Movement for Quality Government in Israel (MQG). On Sept. 8, 2024, the court issued a judgment holding that Levin’s conduct violates the terms of judicial appointments under the Courts Law (which require a simple majority for appointing a president). It instructed Levin to start the process for appointing a president within 14 days after the date of judgment. Levin continued to stall, however. In an unprecedented move, he invited politicians and activists who opposed the two candidates for president—Amit and Elron—to appear physically before the Judicial Selection Committee, resulting in the prolongation of the appointment process (he also sought to televise the proceedings, a proposal that the committee rejected).

On Dec. 12, 2024, the Supreme Court heard another petition against Levin brought by MQG that alleged Levin’s failure to implement the court’s judgment from September constituted contempt of court. In response, the Supreme Court ordered Levin to call for a vote on the appointment of a Supreme Court president by Jan. 16. A few days before that date, a number of news stories broke out in several national media outlets alleging that Amit had violated, in his personal capacity, Israeli planning and zoning laws, as well as judicial ethics. While these publications dealt with trivial matters (technical violations of property safe use and planning and zoning codes, of which Amit was unaware at the time of commission, and minor involvement in a court case indirectly affecting his brother) and had all the hallmarks of a political hit job, Levin seized on them to request that the Supreme Court extend the deadline for the appointment of Supreme Court president and called on Amit to suspend his candidacy until examination of the allegations concludes (which Amit refused to do, insisting that he had done nothing wrong or improper).

The Supreme Court afforded Levin 10 more days to explore the allegations but instructed him to bring them before the Judicial Selection Committee at the expiration of this period so that it could decide whether another extension was needed or whether it was ready for a vote on the presidential appointment. (The Israeli Police, which received several public complaints against Amit, announced that there were no grounds for a criminal investigation, as did the attorney general.) It should also be recalled that Levin has prevented the appointment of a judicial complaints ombudsman—the one state authority that would typically be most suitable to examine allegations of this kind. In a last ditch effort, on Jan. 24 Levin submitted a request to the Supreme Court for more time to review the allegations. The court denied Levin’s request.

On Jan. 26, the Judicial Selection Committee met without Levin and the two other coalition representatives, who boycotted the meeting. It reviewed the allegations against Amit, heard his explanation, and decided by a 5-0 vote to elect him as president of the court (Amit did not participate in the vote). The next longest-serving judge—Judge Noam Sohlberg—was elected in the same meeting as vice president of the court (again by a 5-0 vote, with Sohlberg—who unlike Amit belongs to the conservative camp on the bench—excluded from the vote). In response, Minister Levin announced that he did not recognize the legality of the vote and did not consider Amit a legitimate Supreme Court president. On Feb. 13, Amit was sworn in as Supreme Court president by Isaac Herzog, the President of Israel. Government ministers including Levin and Prime Minister Netanyahu boycotted the ceremony, as did the Knesset speaker, Amir Ohana (also a member of the Likud party).

The implications of the refusal by the coalition to recognize Amit as president are not fully clear, since Levin was not inclined to work with Amit even as an acting president. It may mean that decision-making and other administrative measures dependent on cooperation with the minister of justice, including appointing an ombudsman, discussions on further judicial appointments, budgetary questions, and the like are all now thrown into doubt. Furthermore, Levin’s radical non-recognition move is setting the stage for a full-blown constitutional crisis, which may take place if politicians or state officials reject the validity of decisions issued by the “illegitimate” president of the court (compare, for example, the Polish saga surrounding the status of illegitimate constitutional court judges).

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The ruling coalition in Israel still appears to be determined to effectuate a radical change in the allocation of power between the different branches of government, intended to subject the judicial branch to greater political control and to restore absolute parliamentary supremacy. The renewed battle over the composition of the Judicial Selection Committee and the hardball tactics played by Minister Levin regarding the appointment of the Supreme Court’s president are pushing Israeli society toward a resumption of the internal tensions and populist rhetoric that characterized the pre-Oct. 7 period. It appears that part of the coalition has calculated that the public is too exhausted from the events of the war to mount effective resistance to the new plan. It may also signal that time is running out for the coalition before new elections are called—inviting one last push on this front. Unfortunately, it appears that proponents of such a radical move, at this highly delicate time—in which Israel confronts deep trauma and a momentous decision about the future of the Middle East—have, paraphrasing Talleyrand quip about the French Bourbons, learned something about tactics but forgotten nothing about their long-term strategic goals.