Dr. Shuki Friedman
Dr. Shuki FriedmanArutz Shev

The new framework floated last Monday by Simcha Rothman, the chair of the Knesset Constitution Committee, does not remedy the flaw of previous frameworks that he and Justice Minister Levin have proposed: politicization of the judicial system. At the price of what the two see as a quick fix for right-wing representation on the Supreme Court, an effort is underway that may be expected to completely eradicate what little trust the public currently has in the judiciary. Casting the court in the mold of our polarized and highly contentious political system could paralyze its work and reflect negatively on the lower courts as well, and on the justice system writ large. The final legislation was fast approaching, but due to the Prime Minister’s decision to postpone the vote, it is still possible to strike a compromise that includes all the elements of the proposed constitutional change, including the appointment of judges.

Levin and Rothman had originally proclaimed that the appointment of all Israeli judges would be handed over to the coalition majority, but last Monday the Constitution Committee chair (Rothman) proposed a more “moderate” judicial appointment framework. According to the new proposal, the Judicial Selection Committee would include three government ministers, three coalition members, two opposition members, and three Supreme Court judges. While most judges would be appointed by the committee on a majority basis, the coalition alone would be able to appoint the first two Supreme Court judges as well as its chief justice. In other words, in every Knesset term the chief justice of the Supreme Court and two of its judges would be purely political appointments [1]. Only afterward would the consent of the committee’s judges and its opposition members be required. As Israeli coalitions tend not to last long, the result would be that every government from now on would appoint its judges according to their political views. This would be a terrible outcome for the Israeli justice system.

The political system in Israel is factious and divided. So is Israeli society. Politicization of the Supreme Court is always bad, but at this particular time it could be disastrous for the court, and therefore for all Israelis. Until now, judges’ political orientations were a matter of speculation (the Religious Zionist, haredi and other rightwing Israelis would disagree, ed.) but from now on every judge will have an asterisk above his head, indicating who appointed him on the basis of what political affiliation. Imagine the haredim facing a panel of judges, most of whom were appointed by center-left governments, or an LGBT couple facing a right-wing panel. Is there any chance they would feel that justice was done on their behalf?

The Supreme Court’s decision-making ability could also be mortally damaged. If the court becomes a functionary of the political system and acts in lock step with its policies, achieving consensus or a judicial majority on any given issue would be impossible. There is a real concern that the justices, like the politicians who appointed them, will quarrel among themselves, even if in highly legal language, rendering the court far less effective. If we add to this a chief justice with a political interest in rulings aligned with the views of the politicians who appointed him, both public trust in the court and its ability to function will suffer an even greater degree of damage.

Another, no less significant danger is the distortion of justice by judges at the lower levels. Knowing that those who appoint them are right- or left-wing politicians, these judges might tailor their rulings to satisfy this or that side of the political map, thereby becoming “political” not only after being named to the Supreme Court, but all along the way up. If this happens, heaven forbid, the Israeli justice system will become a travesty.

Added to all this is the fact that the planned politicization of the Supreme Court is only the first stage of the judicial revolution. Additional steps are planned to follow, such as an override clause and stringent rules designed for the same purpose. Once this happens, the flood of legislation promoted by the coalition, including a bill aimed at exerting control over the Central Elections Committee, reported intentions to defer elections by a year (so far …), and a variety of laws of personal interest to the prime minister and to MK Deri, appear even more disturbing.

Calling for change in the legal system is legitimate. Israel’s method of selecting judges was not handed down at Sinai either. However, all such changes should be made on the basis of consensus and through a logical and measured process, not by running amok. Politicizing the judicial system now might have severely harmed both the system, and the chances for dialogue later on. As Passover and Israel’s national holidays approach, the prime minister decided to halt the process for a while, allow us to celebrate 75 years of independence over the remaining embers of Israeli unity, and use the timeout to hammer out a compromise framework that will benefit the justice system, the state, and Israeli society.

Dr. Shuki Friedman is Vice President of the Jewish People Policy Institute and a lecturer in law at the Peres Academic Center. His 2023 novel We Didn’t Love Too Much was published by Yedioth Books and his just-released non-fiction work, Being a Nation State in the Twenty-First Century: Between State and Synagogue in Modern Israel, was published by Academic Studies Press+

Ed. Notes:

[1] as in the USA.