Law for Selecting Judges in Israel Part 3: Historical bill proposals
In this article, I provide a description of the bills relevant to judicial appointments that were tabled over the decades, beginning in 1984. For clarity, I will first list the differences between the current law for judge selection and the law as it will be if the amendments pass the second and third readings in the Knesset.
This article is a follow-up to Part 1, the statutes currently on the books regarding selection of judges to fill available spots on the bench, and Parts 2(a) and 2(b), amendments to the relevant sections of Basic Law: Judiciary and the Courts Law, respectively.
Those opposed to the reforms are worried that the set of incremental changes proposed by the coalition will turn Israel into a dictatorship by reducing the part that the courts play in the balance among the three branches of government: they fear that the court will no longer be able to temper actions taken in the legislative (the Knesset) and executive (the cabinet) branches.
Those in favour of the reforms believe that the court has become excessively “activist,” meaning that the court intervenes in political and government policy issues that are outside its authority and which need to remain in the hands of the elected members of the executive and legislative branches of the government. They claim the reforms constitute corrective measures to counteract the politicization of the court.
The panel of SC judges, therefore, is of vital importance both to those in favour and those opposed to the reforms. Court rulings, in a democratic society, are binding on everyone, including the government. The values held by judges who rule on policy and government actions are an important consideration, then, when appointing new members to the bench.
As described in Part 2(a), the bill was modified after it passed the first reading in February 2023 in the Knesset and after debate in the Constitution, Law, and Justice Committee. The current version was tabled on 27 March awaiting second and third readings but, for now, the bill is on-hold and we do not know if or when it will proceed. .
Major changes in judge selection recommended in the amendments
- Increase the number of members of the Judicial Selection Committee (the Committee) from nine to 11;
- The number of judges remains the same: the SC president with two other SC judges when filling vacancies on the SC and with two presidents of lower courts when filling vacancies in the lower courts;
- The number of ministers increases from two to three (with the Justice Minister who has always chaired the Committee);
- The number of MKs increases from two to five whereby three are from the coalition and two from the opposition. The existing statute does not stipulate that an opposition MK must be one of the two MKs on the committee;
- The existing statute includes two law society representatives on the Committee and the amendment removes them entirely;
- The Committee will invite candidates for the SC to appear before it and this hearing will be made public.
Relevant bills tabled over the decades
Beginning in 1984, bills have been submitted with recommendations for changing the composition and operation of the Committee. Suggestions have ranged from having five members on the Committee to having up to 21 members. All of these suggestions, naturally, involve changing the proportions of judges, representatives from the law society or academics, government ministers, MKs, and one MK wanted members of the public on the Committee and another wanted two chief rabbis. Neither members of the public nor rabbis are included in the amendment waiting for debate in the plenum.
- Supreme Court versus Lower Court Members of the Committee
Beginning in 1994, seven bills were tabled pertained to Supreme Court versus lower court judges on the committee. Four of these were proposed by opposition MKs under Labor governments and more recently under Prime Minister Bennett and the last by a Likud MK in the coalition under Prime Minister Netanyahu. This recommendation found its way into the current amendment whereby presidents of either the district or magistrate court will be on the Committee when filling relevant lower court vacancies.
- Coalition-Opposition Members of the Committee
Stipulation for an opposition MK in the Committee first arose in 2009 when seven Kadima MKs (then in the opposition) wanted a member of the largest opposition party (which Kadima was) to be on the Committee. Then in 2016, Tzipi Livni and other opposition MKs tabled two separate bills stating that one of the two MKs on the Committee had to be from the opposition. Until today, this is traditional but not legally required. That year, the opposition member on the Committee became a second coalition member when his party joined the coalition during that Knesset term. Because there was no relevant law, the court could not decide in favor of the petition to remove him from the committee, providing the impetus for such a bill. Interestingly, it appears that when Livni was Justice Minister — in other words, in the coalition — there were two opposition members on the Committee and that did not seem to bother her or anyone else back then.
In total, 19 bills to this effect were tabled, 18 by various opposition (left and center) MKs and one by Likud’s Amsalem. The amendment currently ready for debate and voting in the Knesset plenum includes the stipulation that two of the five MKs have to be from the opposition.
- Law Society Representation on the Committee
Beginning in 1984, coalition and opposition MKs tabled 12 bills concerning law society representation on the Committee. Some wanted law school faculty on the Committee and others wanted to take selection of the law society representatives away from the society itself, given political intrigues within the organization. Another issue was raised, that of possible conflict of interest on the part of the law society representatives as they will likely stand before judges they approved or voted against while members of the Committee. Only one MK suggested replacing the law society representatives with members of the public. The current amendment removes all lawyers from the Committee.
- Political Representation on the Committee
The current amendment, both with its expanded Committee membership and with the elimination of law society representation, has increased the political representation on the Committee. Beginning in 1991, the balance between legal and political representation on the Committee became an issue. Initially, opposition MK Shevah Weiss (Labour) wanted to change the balance in favor of the legal representatives. However, beginning in the mid-1990s, MKs began talking about the need to increase political influence on the selection of judges because of the way the courts had begun to rule in issues concerning political policy and government actions.
In 2002, 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. In all, 14 bills were tabled by MK from various parties seeking to increase political representation on the Committee.
Bills seeking to increase political membership on the Committee continued until about 2009, and the current amendment, if passed, will accomplish that goal.
After 2009, two new trends emerged: requesting fair representation of the population and increasing transparency and public involvement.
- Fair Representation of the Population
There are two aspects to this issue: fair representation on the Judicial Selection Committee and fair representation on the bench. Both have been addressed to some extent in the 12 bills tabled over the years.
In 1993, 1994, 1996, and 2000, Shas MKs submitted bills requiring judicial 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, mizrahim, religious. The request that judges be knowledgeable in Jewish Law has not arisen again.
What has been repeated is the request that women be included in the Committee. 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 a number of parties seeking to have female representation on the Committee. In 2014, that bill was passed and there are now four women in the Committee, one from each category of membership (judge, lawyer, minister, MK) and not merely the one originally requested.
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 proposed a law that all candidates for SC judge must live within the Green Line (in 2012, 2014, 2015, and 2020).
- Transparency and Public Involvement
In 1994, because of criticism toward the court, opposition MK David Magen (Likud) suggested making the process of selecting judges to the SC more democratic and transparent by having the President of the State appoint judges upon recommendation of the Justice Minister and the SC President after the Knesset will have expressed their opinions.
First in 1996, but then increasing in intensity after 2001, MKs proposed that public hearings be initiated for judicial candidates, that the Knesset votes on the candidates, or that the electorate does so in general elections at the same time as they vote for the Knesset. In all, 33 bills can be classified as calling for transparency and public involvement in the appointment of judges.
The MKs tabling these bills belonged to Shas, UTJ, Bayit Yehudi, Kadima, Labor, Likud, Ichud Leumi, Religious Zionism, and Noam. What made it into the amendment awaiting second and third readings is that SC candidates’ hearings before the Committee will be public.
There were a few bills that do not fit into any category but the only one worth mentioning is that tabled by Gideon Sa’ar (Likud) in 2004. He suggested that deeper Committee discussions about the candidates would ensue if a judge would be appointed only if he or she got seven out of the possible nine votes. This amendment was passed and became part of the statute. If the current bill will pass, then 9/11 ayes will be required to appoint a judge.
The historical background shows that parties on both sides of the aisle have raised issues with judicial selection. In the past two decades, these have been mostly been parties on the right, with the left and center apparently not dissatisfied with Committee composition aside from ensuring that an opposition MK be on it. And the current amendment does stipulate that.
It is quite a dramatic move to go from two politicians to eight on the Judicial Selection Committee, only two of whom will be from the opposition. While, if passed in this term, it will lead to right-wing judicial appointments by the current coalition, there is no guarantee that the next election will bring another right-wing government. Each coalition will have the opportunity to appoint judges it deems most suited to the task and most in alignment with its ideology. Over time, this will balance out and the bench will see a heterogeneous panel of judges, something that is seriously needed in a heterogeneous population such as Israel’s.
A much more detailed look at the history of proposals for modification of judicial selection in Israel can be found in Part 4 of this series..
Special thanks to Knesset insider Jeremy Saltan, my consultant on all matters regarding Israel’s legislature.