Not all the news out of Israel is bad.   

In the last week of the Knesset’s summer session it adopted a law that may be the most important since the current system of judicial appointments was instituted in 1953.
For the first time, the government of the day will be able to block appointments to the Supreme Court.

 
To understand the significance of the new law one needs to know how judges are appointed in Israel.  A 1953 law established a committee of nine that appoints all judges in the country, including judges on the Supreme Court.  The committee consists of three Supreme Court justices (including, ex officio, the Chief Justice), two members elected by the governing council of the Israel Bar Association, two Knesset members elected by the Knesset and two ministers, including (ex officio) the Justice Minister.
 
This means that the committee is in the judges’ pocket.  The judges usually coordinate their position before the committee meets, and vote as a bloc (this was expressly outlawed three years ago, but hey, so what? How far are you gonna get, taking the Chief Justice to court?) The two representatives of the Bar Association are prominent attorneys, and either they or their partners are likely to depend for their livelihood on not alienating the judges.  Traditionally, by courtesy, the Knesset members divide, one for the ruling coalition and one for the opposition.  That means the government of the day never gets more than a third of the representatives on the committee and the judges appoint whomever they want.  The result is well known to readers of Arutz 7.
One can get positive change in Israel’s political system if one pursues it intelligently and consistently.

 
The new law provides that a majority of seven committee members are required to elect judges to the Supreme Court.  For the first time, the government of the day will be able to block appointments to the Supreme Court.  That’s not the same as having the power to appoint whom you want, but it means that the judges are going to have to bargain, cut deals, and trade appointments with the government.  The ideological composition of the Supreme Court is likely to change slowly, and since the Supreme Court plays so large a role in determining both doctrine and appointments to lower courts, the whole judicial system eventually will be affected.  It’s not a revolution but it’s significant.
 
It also shows that a) one can get positive change in Israel’s political system if one pursues it intelligently and consistently.  This law wasn’t drafted by the Israel Policy Center but in the past six years we have contributed mightily to the change of opinion in the Knesset that made its adoption possible.  It also shows that b) the Knesset is truly sovereign and can change the rules of the game; it just has to want to, and in order to want to it needs to be educated.  (Thus far my promo for the Israel Policy Center).
The new law will not reduce but intensify conflict over judicial appointments. Where once the judges appointed their colleagues with no-one else having the right to interfere, every round of judicial appointments will now turn into a fight.

 
The person who did draft the law and get it passed in MK Gideon Saar of the Likud.  This in itself is very significant.  Saar considers himself a true-blue right-wing Zionist, but he worked for years in the State Prosecution before going into politics.  He is very close to Supreme Court Justice Edna Arbel.  He understands that the judicial system needs ideological revamping but shares the prejudice of its members against empowering Knesset members to appoint judges or at least confirm judicial appointments. 
 
Notably, the new law aroused no opposition from the Supreme Court, as past legislation touching upon the court’s prerogatives has done.  I believe that this, too, is Saar’s doing.  Given the current public animus against the judicial system, Saar must have convinced the judges to accept this partial reform as a way to head off a more serious crises and greater curtailment of the de-facto sovereignty the court has enjoyed hitherto.
 
Saar has presented his new law as a compromise, a “third way” between the old system where judges had exclusive control of judicial appointments and a full-fledged system of judicial appointments by elected officials.  He expressed the hope that the new law will lead to a system of consultation and compromise between judges and elected officials.
 
In my view, the new law will lead to nothing of the sort.  Where once the judges appointed their colleagues with no-one else having the right to interfere, every round of judicial appointments will now turn into a fight.  The new law will lead to constant, public and embarrassing bickering between judiciary and the elected branches of government, to a murky world of deals, counterdeals and bargains, all taking place under the eagle eye of the press.
And that's all to the good. Before too long people will realize that the only way forward is a full-fledged democratic system of appointing judges.

 
And that’s all to the good.  Before too many years have passed, I hope, people will come to recognize that the new compromise isn’t working; it involves too much conflict and drags the prestige of the judiciary in the mud.  It will be impossible to go back to the old system of de facto appointments by judges; the public won’t stand for it.  The only way forward will be to go to a full-fledged democratic system, where elected officials appoint and confirm judges after public hearings.
 
Two years ago there was a scandal when the current Chief Justice, Dorrit Beinish, blocked the appointment to the court of a gifted jurist, Prof. Nili Cohen, whom Beinish dislikes.  The episode was very embarrassing and highlighted that judicial appointments in Israel are not made simply on a professional basis, but on the basis of very human failings.  To paraphrase Che Guevara, “Two, three, many Nili Cohens!”