Justice Minister Yariv Levin, the chief architect of the government’s judicial overhaul push, warned the High Court of Justice on Monday against intervening to strike down a new coalition proposal that will cement political control over the selection of judges, including to the top court.
Speaking with the pro-Netanyahu Channel 14, Levin asserted the changes — introduced late Sunday night by MK Simcha Rothman and further slightly updated on Monday morning — address critics’ concerns that the proposal will lead to a constitutional crisis and remove doubts that the coalition’s true aim was give itself power to determine the makeup of the courts.
The intervention of the court, should it step in to strike down the legislation once it passes, “would be a red line that we won’t accept,” warned Levin, the chief architect of the coalition’s push to dramatically overhaul the judicial system. The plans, unveiled as part of a legislative package of bills, would neuter the High Court’s ability to strike down legislation in the future and enable the Knesset to re-legislate laws the court does manage to annul with a bare majority of just 61 MKs.
The bill currently being pushed through the legislative process at breakneck speed would effectively grant the government total control over the appointment of judges, even with the changes introduced by Rothman Sunday.
The Religious Zionism lawmaker’s amended proposal would give a governing coalition full control over the first two appointments to the Supreme Court which open up during its tenure but require the support of one opposition member for a third appointment, and the support of both an opposition member and a judicial representative for a fourth. The proposal would also change the Supreme Court presidency appointment process, to allow the coalition to appoint the chief justice, further boosting its control over the appointment of justices to the High Court and potentially giving it full control over appointments to lower courts.
This has been presented by Rothman and some members of the coalition as a compromise deal, though it was reached without any negotiations with the opposition.
Chairman of the Knesset Constitution, Law and Justice Committee MK Simcha Rothman at a committee hearing, March 20, 2023. (Yonatan Sindel/Flash90)
The changes, presented as a “softening” amid intense public opposition and criticism, are ostensibly meant to address widespread concerns that the bill as initially formulated — and passed in a first Knesset reading — would have given the coalition carte blanche to pack the courts with amenable ideologues.
But opposition parties and national protest organizers swiftly rejected the new proposal, saying it is an attempt to mislead the public into thinking the judicial overhaul plan has been moderated, while ensuring the politicization of the court and causing grievous harm to Israel’s democratic system.
And the deputy attorney general warned that the revised proposal failed to address the concern that the coalition’s legislation will “politicize the justice system and severely harm its independence and public trust in it.”
Forging ahead
The updated proposal will be brought before Rothman’s Constitution, Law and Justice Committee on Tuesday to be readied for its second and third (final) readings in the plenum.
The coalition gave the opposition until 10:00 a.m. Tuesday to submit objections to the legislation, a notice of less than 12 hours since the meeting in the committee was set.
MK Gilad Kariv of the Labor party, a member of the opposition, turned to Knesset’s legal advisers to delay the convention of the committee by another day to allow appropriate time for the opposition to formulate its objections.
Opposition leader Yair Lapid, head of Yesh Atid, warned that Rothman’s move was an underhanded steal.
“Now he [Rothman] has informed us of a discussion and votes tomorrow in the constitution committee on changes to the committee for the selection of judges. They don’t execute a regime coup – they steal it in the night,” Lapid wrote in a tweet.
Head of the Yesh Atid party MK Yair Lapid speaks during a faction meeting at the Knesset, on March 20, 2023. (Erik Marmor/Flash90)
In his interview with Channel 14, Levin argued the High Court would have “no justification” for overturning the bill, which is set to become law before the Knesset breaks for the Passover holiday.
“Our goal is to diversify the judicial system, to balance it. The goal is not to take over and not try to politicize the judicial system. Most of these scare tactics are really completely baseless,” he told the channel.
“I very much hope that once the law is passed and it becomes clear that we acted attentively to real comments, [and] we enacted and implemented the mandate we received from the public without fear… this democratic decision will be respected and we will have a fair and just method of electing judges that has its place for everyone.”
“This reform is a good thing for all citizens of Israel,” Levin insisted.
Political control
While the coalition intends to pass the law on selecting judges by the end of next week, Rothman urged the opposition to use next month’s Knesset recess to debate other elements of the overhaul package — an invitation the opposition has rejected. He said it was still possible to heal the internal Israeli rifts over the legislation and achieve “an agreement that the whole people can unite behind.”
In the newest version of the legislation Monday morning, any new governing coalition would have complete control over the first two appointments to the Supreme Court that open up during its tenure, but require the support of at least one opposition MK for a third nomination as well at least one judge on the committee for a fourth nomination.
Currently, Israel’s nine-member Judicial Selection Committee is split between four politicians and five professional representatives — three judges and two members of the Israel Bar Association. According to Rothman’s newly proposed changes, the committee would be expanded from nine to 11 members, six of them from the governing majority. It would comprise three government ministers from three different parties; three coalition MKs from three different parties; two opposition MKs from two different parties; and three Supreme Court justices, including the court president.
Rothman would not state on Monday whether the coalition would automatically select the Supreme Court president, a move that would further strengthen its control of the committee. The current coalition framework would indeed enable the coalition to select the court president.
Illustrative: The High Court of Justice convenes in Jerusalem to discuss the potential evacuation of the West Bank outpost of Homesh, January 2, 2023. (Yonatan Sindel/Flash90)
Appointments would be made through a simple majority of six out of 11 members for the first two appointments to the Supreme Court in a Knesset’s term. After those appointments, the majority needed would remain six out of 11 but among those six at least one member of the opposition would be required. A fourth appointment during the same term would require backing from both a member of the opposition and a judge in order for it to be approved.
In effect, this would mean that two coalition-backed justices could be appointed with ease, and any remaining appointments could be consensus candidates. But critics have pointed out that once those two appointments are in place, those judges could serve on the committee.
In addition, placing two ideologically aligned judges on the Supreme Court bench would mean that if the government succeeds in passing legislation setting a requirement for a unanimous court ruling to overturn Knesset laws, the court would likely be unable to do so.
Members of the opposition resoundingly rejected Rothman’s new proposal, mocking the coalition for “negotiating with itself” and seeking to mislead the public.
