Law for Selecting Judges in Israel Part 4: In-depth look at historical proposals for change

Beginning in 1984, coalition and opposition members of the Knesset (MKs) have been proposing changes to the way judges are selected and appointed to vacant spots on the bench. This article gives an in-depth look at these historical bills and notes which of them passed all three readings in the Knesset, to become part of the law statutes of the nation and which have made it into the bill awaiting voting in the Knesset plenum. They are divided into categories to make the trends and developments over the years easier to follow. The bill that passed the first reading in the Knesset is referred to here as the Feb version and the bill that was modified and now awaits second and third readings is referred to here as the March version.  Number of Judicial Selection Committee members In the Feb version of the bill, the number of members of the Judicial Selection Committee (henceforth, the Committee)  remained at nine while in the final March version it increased from nine to eleven. Bills concerning the composition of the often proposed changing the number of Committee members, ranging from five (Amsalem, Likud, 2021) to 21 (Magen, Likud, 1988). Most of these were focused on increasing or decreasing law society members of the Committee, a topic to be discussed below. Supreme Court versus lower court judges on the Committee Both amendment versions include three judges with the Feb amendment specifying that two of the judges would be retired justices. It does not specify in which court the retired judges served, only that they would be retired judges. The March version keeps three Supreme Court (SC) judges on the Committee when appointing new SC judges, but when appointing new judges to the lower courts, the SC president will be joined on the Committee by two presidents of the relevant lower court. In 1994, Ron Nachman (Likud) thought it wrong that most SC judges had no experience in the lower courts where they would have had experience hearing and judging on concrete evidence. He proposed, therefore, that more than three SC judges would necessarily have come through the lower courts. In 2007, Gilad Erdan (Likud) plus 35 other MKs from Likud, Kadima, Bayit Yehudi, Yisrael Beitenu, UTJ, Shas, Labor, and the Pensioners’ Party tabled a bill that would include lower court judges on the Committee. In 2008, Gabbai (Bayit Yehudi) proposed that two retired lower court judges would replace the two SC judges on the Committee in the statute. In 2016, Nurit Koren (Likud) tabled a similar bill and Miki Zohar (Likud) proposed the same amendment in 2021 and 2022. As noted, the idea of having retired judges on the Committee found its way into the March amendment regarding lower court appointments. Opposition and coalition members on the Committee Both amendment versions stipulate that MKs on the Committee will be from among the coalition parties and the opposition. This contrasts with the current situation under which it has been traditional, but not stated by law, that one of the Mks would be from the coalition and one from the opposition. In 2009, for the first time, the issue of coalition-opposition balance was raised. Seven Kadima MKs wanted the opposition representative to be from the largest opposition party. This bill made it to the first reading in the plenum but was defeated and did not go any further. In 2016, two separate bills were tabled, one by Zipi Livni (Zionist Union/Labor) and the other by Esawa Frej (ZU), Erel Margalit (ZU), Osama Saadi (Joint List), Michal Rozin (Meretz), and Zehava Galon (Meretz), seeking to make it law and not just tradition that there was one MK on the Committee from the opposition and one from coalition During the Knesset term in which they tabled their bills, the opposition member on the Committee became a second coalition member when his party joined the coalition some time into the Knesset term. Because there was no relevant law, the court could not remove him from the committee. The bill was defeated in the plenum but a few months later, Zehava Galon (Meretz) tabled a similar bill that was withdrawn when she retired from the Knesset. Interestingly, it appears that when Livni was Justice Minister -- in other words, in the coalition -- there were two opposition members on the judge selection committee and that did not seem to bother her or anyone else back then. In 2017 and 2018, opposition members tabled six separate bills requesting that it be made law that the Committee contained an opposition MK as well as a coalition MK. In 2020, Merav Michaeli (Labor), Tamar Zandberg (Meretz), and Karine Elharrar (Yesh Atid) submitted three separate bills to this effect. The bill finally made it to the plenum but was defeated. Three months later, Elharrar tabled it again. In 2021, four separate bills on this issue, three Meretz and one Labor, were submitted. David Amsalem (Likud) also wanted opposition and coalition representation in the Committee to be sealed in law, and his bill (2021) suggested a total of only five Committee members, all of whom were either ministers or MKs. In any case, the current amendment, if passed, does make it law to have both coalition and opposition MKs in the Committee. Note that this was put into the reform by the Likud coalition government but it originated from earlier bills tabled by parties that had been in the opposition for years. Of course, there are more coalition members in the Committee than opposition but, given that the coalition garnered more electoral votes, that seems fair. Furthermore, if in future elections the opposition becomes the coalition, then these same parties that are now protesting the reforms will likely cease to complain about at least this particular issue. Political representation The reform increases political representation on the committee, with both versions removing representatives from the law society. One additional minister was proposed for both the Feb and March amendments. Regarding MKs, the Feb version increased the number from two to three, and the March version from two to five.

• Addressing the issues concerning law society representatives

Both amendment versions remove law society representatives from the Committee. The rationale that has been discussed in the media is that lawyers involved in judge selection may not be able to make totally independent choices since there is a chance they will plead future cases in front of the judges they had a hand in selecting (or rejecting). Of course, they could ask for the particular judge to be recused from hearing the case (and pass another law to enforce that). This issue, in fact, was addressed in the very first amendment tabled in the Knesset concerning the Judge Selection Committee. In 1984, Mordechai Virshubky (Shinui) proposed that lawyers on the Committee would never argue cases before the SC panel that they had been involved in appointing. It is possible that this would impact negatively upon lawyers’ careers and perhaps prevent them from agreeing to join the Committee. It also ignored the fact that the Committee's main job is to appoint lower court judges, something that happens far more frequently than appointing SC judges and, therefore, should have been included in this bill. Virshubsky followed his unsuccessful bill with another, in 1986, in which he suggested adding a dean of a law faculty to a ten-member Committee comprised of four judges and two law society representatives, with only one government minister and two MKs. In 1988, David Magen (Likud) went even further. He proposed a 21-member Committee, achieved largely by adding nine law society representatives, to reduce Committee errors when making their choices, he wrote. He claimed that the court had lost the trust of the people because of irregularities on the parts of judges but he did not elaborate in the explanation section of the bill and was unavailable as of the writing of this article to tell me what he meant by this. This dissatisfaction dated before the Aharon Barak judicial revolution and it would be interesting to know what Magen was referring to. In addition to the nine law society representatives, Magen wanted the SC president, four sitting judges, the justice minister, two other ministers, and four MKs. In 1991, David Labai (Labor) proposed that the head of the law society must be one of the Committee law society representatives. In 2003, the Knesset passed into law a bill tabled by Ronnie Bar-On (Kadima) who noted a different potential complication with the law society representatives even though he did not state this explicitly in his rationale for the bill. The amendment states what should be obvious: that members of the Committee vote independently and not as part of any arrangement they may have with the body that put him/her on the Committee. It appears that that law was later rescinded as I cannot find it in the statute. Yuli Tamir (Labor) sought to add to the Committee: two former district court presidents who were not on the SC and two law school deans. Also believing that academic professionals would improve the functioning of the Committee was Eliahu Gabbai (Bayit Yehudi) who, in 2007, proposed to include two law school faculty members. In 2008, David Rotem (Yisrael Beitenu) and 17 other MKs from a variety of parties (Pensioners, Shas, Labor, Bayit Yehudi, UTJ) proposed that the two law society representatives would be selected by the president of the state rather than the law society because of political issues within the society, itself. In a 2013 bill seeking to correct the situation whereby the judges on the committee can veto any candidate not to their liking because “in a democracy, one branch cannot elect itself to office,” Yariv Levin (Likud) proposed adding to the judges on the committee a retired district court president and adding a legal scholar to the two law society representatives. Six months later, Levin, together with Ayelet Shaked (Bayit Yehudi) tabled a bill identical to that. In 2021, Itamar Ben Gvir (Religious Zionism) proposed that the Committee include 13 members, with six MKs and not just two. The judges on the committee would provide consultation with the MKs and would not actually vote. In 2022, Isaac Shimon Wasserlauf and four more MKs from the Religious Zionist party plus one Shas MK returned to the issue raised by Rotem et al in 2008.  This 2022 bill proposed that the two legal representatives will be recommended by the justice minister and voted on by the Knesset. In January 2023, Hanoch Dov Milwidsky (Likud) proposed having two representatives from the public on the committee instead of law society representatives, and that there would be female representation on the part of those public representatives. He proposed this idea as an amendment to the Courts Law rather than to Basic Law: Judiciary. There was no chance this would be discussed in the plenum as immediately afterward, the Constitution, Law, and Justice Committee of the Knesset tabled their bill for amending the statutes related to judge selection. Finally, against all this background, the current amendment eliminates law society representation on the Committee – without explanation as to why. That is unusual because bills tabled include an explanation section in which the recommendations for amendments are supported either by academic studies, international surveys, or attention to societal changes. This summary, however, should make it clear that the participation of law society representation on the Committee has been regarded as problematic for many years and for various reasons.

• Increasing political representation

Shevach Weiss (Labour), in 1991, stated that he wanted to increase the independence of the court and reduce the impact of "narrow" party interests -- his scare quotes. He thought that could be achieved, not by increasing the number of law society representatives, but by increasing the number of judges. His eleven-member Committee would include the SC president, two other SC judges, two lower court judges selected by the SC president, two law society representatives, two ministers, and two MKs. But by the mid-1990s, as the SC became more active in ruling on political issues, something the court had studiously avoided before then, politicians wanted more say on the composition of the judicial panel sitting on the SC. In 1997, and again in 2003 and 2006, Nissan Slomiansky (National Religious Party) wrote that the Committee was biased toward the judiciary and he wanted to increase membership from 9 to 12, with 3 members from each branch: 3 judges, 3 ministers, 3 MKs, and 3 representatives from law society. In 2001 and 2002, Yigal Bibi (NRP) and another three NRP, two UTJ, and one Shas MKs explained in their bill proposal that the court was too homogeneous and disconnected from the people.  They wanted to add one more minister and another MK to the Committee. Similarly, Marina Solodkin and Gennady Riger (both of Yisrael Ba’aliyah) wrote that the world view of the judges is taking precedence over the world view of the voting public and wanted four ministers in the Committee. That year, Michael Kleiner (National Union) even proposed that there be no judges at all on the selection committee, saying that it is as if the next Knesset would be determined by having 40 MKs pick their own successors and 80 picked by general elections. He suggested that the nine-member Committee be comprised of the Justice Minister and one more minister, four MKs, the Attorney General, and two representatives from the legal society. Also wanting to increase the political representation in the Committee, Michael Eitan (Likud) suggested, in 2003, adding another minister and another MK, bringing the total to 12. Marina Solodkin (Yisrael Ba’aliyah) and Gila Finkelstein (National Religious Party) tabled two separate bills with the same intent that would add two ministers to the Committee. That same year, Nissim Ze’ev (Shas) suggested a unique and unusual panel for the Committee. Two chief rabbis, the SC president and one more SC judge, the justice minister and two more ministers, three MKs, two representatives from law society, and one dean of law school would make up the 13-member Committee. From this point on, various combinations of more ministers, more MKs, fewer representations of the legal profession including judges, and increasing the number of MKs on the Committee were proposed by: Zvulun Orlev (Bayit Yehudi, 2006, 2009), Yariv Levin (Likud, 2009), A Change in Emphasis At around the same time as MKs wanted greater political representation on the Committee, two new trends arose. They wanted to increase the representation of the various sectors of the population both on the judge selection committee and on the panel of judges sitting in the SC and they wanted a more transparent process for judge selection.

• Fair Representation of Sectors of the Population

There are two aspects to the issue of fair representation: fair representation on the judge selection committee and fair representation on the bench. Both have been addressed to some extent in proposed amendments to the statutes. In 1993, Shlomo Benizri and Yosef Azran (Shas) submitted a bill requiring judge selection to take into account two aspects: knowledge of Jewish Law and fair representation of all sectors of society according to their proportion in the population: women, Mizrahi, religious. A year later, Aryeh Deeri and Rafael Pinchasi (Shas) tabled the same bill. Deeri and six other Shas MKs re-tabled this bill in 1996. This was repeated in 2000 in a bill submitted by eleven Shas MKs. The request that judges be knowledgeable in Jewish Law has not arisen again. Interestingly perhaps, while Ahmad Tibi (Ra’am Ta’al) may have been expected to table a bill requiring fair representation of the Israeli Arab sector in the Committee and/or on the bench, he instead wanted to pass a law that all candidates for SC judge must live within the Green Line. He did this first in 2012, then in 2014, 2015 (co-signed by Osama Saadi, both now of the Joint List), and in 2020 (co-signed by Saadai and Sondos Saleh, Joint List). That was the last time the bill was tabled. In 1997 and 1999, Naomi Blumenthal (Likud) submitted a bill to ensure that at least one member of the committee would be a woman. In 2013, two bills were submitted by members of various parties seeking to have female representation on the Committee by adding that stipulation to the Courts Law and not Basic Law: Judiciary. In 2014, that bill was added to the legal statutes and there are now four women in the Committee.

• Transparency and Public Involvement in Judge Selection

In 1994, because of criticism toward the court, David Magen (Likud) suggested making the process of selecting judges for the SC more democratic and transparent by having the President of the State appoint judges upon recommendation by the Justice Minister and the SC President after the Knesset will have expressed their opinions. In 1996 and 1999, Shmuel Halpert (UTJ) proposed that judges be selected in general elections by all those with voting rights because of the view that the SC viewed itself, not just as a judicial body but also as a legislative body. In 2000, Yakov Litzman (UTJ) proposed the same law with the claim that it would render the court accountable to the people. In 2001, two separate Shas bills sought to have judge selection committee discussions in the public record because the committee is selecting individuals who will have untold influence on the population. This bill was resubmitted in 2003 by David Azoulay (Shas), Yisrael Eichler (UTJ), and Amnon Cohen (Shas). Similar bills were later tabled by Moshe Gafni (UTJ) and Yitzhak Levy (Bayit Yehudi) in 2008, and Uri Orbach (Bayit Yehudi) in 2009. In 2003, David Tal (Kadima) suggested that the selection committee provide two or three candidates for each open position, and then the Knesset votes for which of these will be appointed. This bill was defeated in the preliminary vote in the plenum. Tal retabled it in 2006, to no avail. That year, Yuli Tamir (Labor), addressed the sense that the court is too removed from the lives of the population by proposing public interviews with candidates for the SC to familiarize the public with the issues with which the SC and High Court of Justice contend, the values and approaches to basic laws of the candidates and what they have accomplished professionally until that time. The Committee vote, however, was to be held in secret. In 2005, Tamir re-tabled this bill, co-signed by Gideon Sa’ar (Likud). Other MKs also proposed public candidate interviews: Nissim Ze’ev (Shas) in 2003, Gideon Sa’ar (Likud), Avishai Braverman (Labor), and Menachem Ben-Sasson (Kadima) in 2007,  Yariv Levin (Likud) and Zeev Elkin (Likud) in 2011, and Nissim Vaturi (Likud) this year. Then a request for even greater citizen involvement in the appointment of judges arose. In 2011, Yaakov Katz (Ichud Leumi) and Nissim Ze’ev (Shas) plus 5 MKs from Shas and UTJ proposed that voters elect the judges at the same time as general elections for the Knesset are held. However, this was dialed back and nine years later, in 2020, Amit Halevi (Likud) with four other Likud MKs and one from UTJ proposed that a Knesset committee selects candidates for the SC and the Knesset votes on them after hearings in the plenum. The next year, Micky Zohar (Likud), Karhi (Likud), and May Golan together with 14 additional MKs (4-Likud, 4-Shas, 3-Religious Zionism, 2-UTJ, and 1-Noam) tabled three separate bills to that effect. In Itamar Ben Gvir’s (Religious Zionism) bill, candidates would be heard in the Law Committee that would provide recommendations to the Knesset following which the plenum would elect the judges. Then in 2022, four separate bills will tabled by Likud MKs: Karhi, Zohar, Milwidsky, and Halevi (Likud). At the beginning of 2023, Halevi (Likud) with Amsalem (Likud), and Simcha Rothman (Religious Zionism) also proposed the Knesset voting for the judges seeking to fill available slots on the bench. This year, Ohad Tal (Religious Zionism) suggested a Knesset vote for selecting, not the judges, but the MKs who will sit on the Committee. The vote should be open, Tal explained, ensuring that the public knows there are no “back-room deals.” Miscellaneous bills tabled In 1994 and 2008, Avraham Hirchson (Likud) and Eliyahu Gabbai (Bayit Yehudi) tabled separate and different bills concerning limitations to terms members of the Committee could serve consecutively. In 1998, Yona Yahav (Labor) wanted to add a stability clause to prevent the selection committee from appointing judges that satisfy party interests. Toward this end, he proposed that a Knesset majority be required to change the composition of the Committee. In 2002, Ophir Pines-Paz (Labor): proposed that a judge could be “de-selected” by a simple majority of those who attend the vote in the Judge Selection Committee In 2004, Gideon Sa’ar (Likud) proposed a bill that he suggested would encourage deeper Committee discussions about the candidates if a judge would be appointed only if he or she got 7 out of the possible 9 votes. This amendment was passed and became part of the statute. In 2020, Osnat Hila Mark (Likud) tabled a bill that would enable a potential candidate for the SC to meet with three members of the selection Committee to discuss his/her qualifications for the position. Currently, potential candidates only meet with the president of the SC. Special thanks to Knesset insider Jeremy Saltan, my consultant on all matters regarding Israel’s legislature. Feature Image Credit: israeltourism, CC BY 2.0, via Wikimedia Commons