Reforming the Israeli Judicial System: How about the president nominating candidates for the Supreme Court?

February 22, 2023

By: Joseph Puder

Israel’s Justice Minister Yariv Levin’s judicial reform proposals generated widespread demonstrations throughout Israel warning that the reforms might jeopardize the independence of the Israeli Supreme Court, and undo the checks and balances between the executive, legislative and the judicial bodies. The Coalition and Justice Minister Levin argued that the judicial reform will strengthen Israel’s democracy and pointed out that most of the Israeli public that elected the government in a democratic election process demanded judicial reform.

The judicial reforms include an “override clause” that would enable the Israeli parliament (Knesset) to reverse Supreme Court decisions to overturn legislation with a majority of 61 votes. It would also change the way judges are appointed – giving the majority of the selection committee to select officials – as well as eliminate the legal justification of “lack of reasonableness” – by which the court can cancel Knesset decisions – which critics argue is legally vague and has been used by the court to mean whatever it likes.

President Isaac Herzog (pictured above), in a passionate special broadcast to the nation last Sunday pleaded with the coalition and the opposition in the divided Israeli Knesset to negotiate and compromise. He warned that the polarization sets Israel on a collision course. Herzog said, “I am now focused on two critical roles that I believe I bear as president at this hour: averting a historic constitutional crisis and stopping the continued rift within our nation.” He added that he hoped that his efforts would yield results but he admitted that he was not certain if his endeavor would succeed. He said that there is still a long way to go and that significant gaps remained.

Herzog offered a five-point plan to avoid collision and as a basis for dialogue. 1) The basic law of the legislation that will regulate ordinary laws and basic laws cannot be interfered with by the courts. 2) Increasing the number of justices in the Supreme Court, thus reducing the overload in the judicial system. The Government, in coordination with the President of the Supreme Court, need to create a reform that will deal with this issue. 3) Parity in the composition of the committee to elect justices that will allow a balance between the various authorities in favor of any of the parties. 4) Restoring the trust in the justice system – the government will approve a plan that will help the justice system overcome the torture of the law. 5) Achieving a broad consensus regarding the use of the so-called “standard of reasonableness.”

Herzog also urged the protesters to “hold a dialogue” on the proposed reform package. Prime Minister Benjamin Netanyahu and Justice Minister Yariv Levin and other government officials stated that they were open to negotiations. Levin pointed out that he heard positive aspects in Herzog’s speech but also elements that perpetuate the existing unsound situation. He added, nevertheless, that he was open to a dialogue.

This reporter has his own ideas on how to resolve the judicial impasse at least in terms of the selecting process of justices, by adopting parts of the American model. Being that President Herzog is a relatively neutral figure, who was elected by the Knesset, and was formerly the leader of the Labor Party, he has no executive power, and giving him the power to select and nominate candidates for the supreme Court will have full consensus in the Knesset.

The selection and nomination of candidates will not change the current sitting justices, but will begin when the current justices retire. The Knesset will vote to approve the president’s nominee by a majority of two-thirds of the 120 members. Therefore, a nominee would have to garner 90 votes, which will give the opposition parties a chance to kill the nomination. By the same token the coalition likewise could kill the nomination. The coalition has currently 64 members, which means that they alone could not approve a nomination and would be required to enlist at least 26 members of the opposition parties.

This single idea would eliminate a great deal of the current wrangling over the selection of Supreme Court justices.

The American model does not fully apply to Israel because the Israeli Knesset is unicameral, and there is no upper chamber or Senate. Moreover, proportional representation gives the party more power than the individual candidate. In recent decades Israel inaugurated the primary system. The primary sets the list of candidates to the Knesset according to the votes they garnered. The party chairman is given the prerogative to fill assigned spots on the party list. The Knesset judicial committee would deliberate over the qualifications of the candidates for the Supreme Court submitted by President Herzog. Once approved, the candidates name would go up for a vote in the Knesset plenary.

President Herzog suggested that the Supreme Court refrain from interfering in basic laws. This should be part of the reform because it is a legislative prerogative. There is also full consensus in the Knesset for Herzog’s call to increase the number of supreme Court justices. Another acceptable proposal by President Herzog is that of narrowing the claim of “reasonableness.”

Clearly, one of the problems with the current supreme Court justices is that they comprise an elitist group that does not reflect the nation’s demography, and Herzog mentioned that it should have more representation from Sephardic Jews.

The chairpersons and CEOs of major Israeli banks, including Bank Ha’poalim, Bank Leumi, Mizrahi Tefahot, Israel Discount Bank, and the First International Bank of Israel issued a joint statement in the aftermath of Herzog’s speech, stating that, “We support the president’s initiative and call for the reform in the legal system to be carried out through dialogue and broad consensus that will preserve the unity of the nation, and maintain a Jewish and democratic Israel, as well as the continued prosperity of its economy.”

While the Israeli Supreme Court has earned a reputation of a fair institution abroad, it can do even better if it focused on serving even-handedly its domestic public from all the political streams. To do that, serious attention must be given to the inadequacies of the current system as pointed out by Justice Minister Yariv Levin.