Justice Minister Yariv Levin and Foreign Minister Gideon Sa’ar announced a breakthrough agreement on judicial reform on Thursday, potentially marking a significant improvement in Israel’s governance. Dubbed a “historic amendment” by its architects, the compromise reshapes the flawed structure of the Judicial Selection Committee and addresses the status of Basic Laws, promising a more balanced and democratic process for appointing judges and passing major laws.
A New Judicial Selection Framework
The compromise fundamentally changes the makeup of the Judicial Selection Committee, which currently favors a judicial bloc with de facto veto power over appointments. Under the new plan, the nine-member panel will consist of:
- Three Supreme Court justices,
- Two lawyers (one selected by the coalition, the other by the opposition, each with at least ten years of litigation experience),
- Two Knesset members (one from the coalition and one from the opposition), and
- Two government ministers.
This arrangement eliminates the undue influence of the Israel Bar Association, which critics argue has historically aligned with the judiciary, perpetuating a homogenous judicial culture.
A judge’s appointment will require a majority of five committee members, with the stipulation that at least one vote comes from both the coalition and the opposition. This ensures bipartisan agreement and fosters compromise, preventing any single political faction from dominating the judiciary.
The assumption is that the coalition and the opposition will usually be sized relatively close to one another, therefore deserving relatively equal say, though one can clearly envision situations where the coalition is very wide and the opposition very small and extreme, which would create an unfair situation where an extremist, minority opposition has full veto rights over a large unity government.
Furthermore, it’s yet unclear if this compromise will typically produce consensus judges, or instead push for pareve and more mediocre candidates that won’t rock the apple cart.
Avoiding Deadlocks and Promoting Balance
To address potential deadlocks, the agreement introduces a fallback mechanism. If two vacancies remain unfilled for over a year, the coalition and opposition will each present three candidates. The other side, along with the judges on the committee, will select one candidate from the opposing list. This approach incentivizes cooperation while avoiding prolonged paralysis.
Basic Laws: A Framework for Stability
In addition to the judicial selection reforms, the compromise strengthens the integrity of Israel’s Basic Laws against an activist Supreme Court, such as we have right now that has repeatedly shot down laws passed in the Knesset, including Basic Laws.
The reforms restrict judicial review of Basic Laws while mandating that such laws only address fundamental issues like state identity and human rights. Exceptions will allow judicial review only for laws undermining equality in elections, requiring a three-quarters majority of the court’s judges for invalidation.
This provision ensures that Basic Laws cannot be hastily enacted or exploited for political convenience, safeguarding their intended role as enduring quasi-constitutional principles, while at the same time, protecting a democratically passed law from an activist court.
A Coalition of Agreement
Gideon Sa’ar’s decision to join the coalition was pivotal in achieving this compromise, broadening the government’s majority from 64 to 68 seats in the 120-member Knesset. His support also helped bridge divides within the political spectrum, drawing cautious optimism from members of the opposition. Sa’ar has been an advocate of judicial reform for years.
For example, MK Matan Kahana of Benny Gantz’s National Unity Party expressed approval, noting that the proposal could garner broad support if implemented in good faith.
As expected, the far-left panned the compromise agreement, as it would upend the left’s near absolute control over the makeup of the Supreme Court.
One downside was that in order reach this agreement, Levin had to agree to withdraw his opposition to the appointment of the left-leaning activist Justice Yitzchak Amit as the next court’s president.
Implications for Israel’s Future
While the reforms represent a scaled-back version of the sweeping changes initially proposed by Levin in early 2023, they signify a meaningful step toward restoring balance in Israel’s judicial system and restoring power to the elected officials. By granting both coalition and opposition members veto power, the agreement ensures that new judicial appointments will either reflect consensus or, in cases where multiple appointments are made, embody diverse perspectives.
