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The Levin-Sa’ar Proposal: A Necessary Step for Rebalance

In recent years, the judiciary has expanded the constitutional revolution and assumed unprecedented powers. Supreme Court justices unilaterally determined they could invalidate Basic Laws, struck down legislation aimed at denying benefits to the parents of terrorist minors, and annulled all legislation enacted by the Knesset in its attempt to address the issue of illegal immigration. They restricted government appointments, while repeatedly deliberating on whether or not someone who won elections could form a government and whether or not to declare a sitting prime minister incapacitated. They invalidated measures intended to put pressure on Hamas, such as a ban on the medical treatment of terrorist leaders’ close relatives in Israel until the release of the bodies of hostages. They also forced the Education Minister to award the Israel Prize to a BDS supporter who called for a boycott of the state.

The Supreme Court abandoned its traditional judicial approach, in which judges express themselves solely through court rulings, opting instead to become key speakers at protests and conferences against the government and its policies. A new precedent was recently set when the Court ruled it had the authority to force the Minister of Justice to convene the Judicial Selection Committee against his will.

Despite all this, when the Sa’ar-Levin plan to reform the composition of the Judicial Selection Committee was put forward, opponents of the plan argued that it would politicize the court. The exact opposite is true : the Justices have already politicized the court, thus generating the need to increase the influence of public representatives in the committee. The Israeli judiciary is unequivocally political and adjudicates political issues based on the Justices’ personal views. One might consider this to be an anti-democratic state of affairs, and view the proposed plan as the bare minimum with which to address the issue; one could alternatively embrace the notion that “everything is justiciable” and believe that our novel “substantive democracy” requires the status quo be maintained. Either way, the debate over judicial appointments should be based on facts. The court has already made itself political, justifying the call to increase the influence of elected officials in the committee at the expense of so-called “professional” elements.

Sometimes, history repeats itself as a farce. In 2008, the Israel Democracy Institute’s Prof. Mordechai Kremnitzer appeared before the Constitution, Law and Justice Committee to oppose an amendment proposed by Sa’ar, which required a supermajority of seven out of the nine committee members for the approval of Supreme Court appointments, effectively granting mutual veto power to both judges and elected officials. This amendment was promoted after the appointment of Prof. Ruth Gavison to the bench was blocked by the judges’ opposition.

Kremnitzer opposed the change, arguing that strengthening the role of politicians would undermine judicial independence:
“I am concerned about this proposal because it strengthens the power of the political majority. It harms one of the judiciary’s most fundamental values—its independence and impartiality. The last thing we would want is for a judge, when writing a ruling, to ask himself whether his decisions please the government.”

Kremnitzer further claimed that requiring a consensus would lead to the appointment of mediocre or even unqualified judges:
“The resultant compromises that may be bad compromises because appointing unfit judges is an even greater danger than appointing mediocre judges.”

Prof. Kremnitzer explained that elected officials lack the ability to assess judges’ professional qualifications and that changing the balance between professional figures and elected officials in the committee would be inappropriate without a comprehensive constitutional framework. At the same time, he paradoxically argued that judges do not have excessive power in the committee because the Minister of Justice has the authority to avoid convening it:
“The political majority has more power because the committee chairman is the Minister of Justice, and the minister has significant power—he decides whether the committee convenes or not.”

However, then, as now, representatives of the Israel Democracy Institute oppose the Sa’ar-Levin plan, using the exact same arguments (except for the claim that the minister may refuse to convene the committee, naturally). They now fiercely defend the existing legal status quo, despite Kremnitzer opposing it years ago with the very same arguments. A contemporary review of the protocols from past discussions that shaped the current legal framework opponents of the reform now seek to protect reveals that we should not make mountains out of molehills.

Once the judiciary became political, it became necessary to enhance the role of elected officials in the Judicial Selection Committee, while still ensuring judicial quality and independence. The Sa’ar-Levin proposal is an improvement of the existing situation. It is neither perfect nor ideal, but under the current circumstances, it has merit. Their plan will see judges with diverse legal and ideological worldviews join the Supreme Court, resulting in rulings that align more closely with prevailing public sentiment.

First appeared in Hebrew on N12

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Adv. Aharon Garber

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