It is not a reform and not even a start thereof. It is a superficial maneuver.
(Jan. 14, 2025 / JNS)
While receiving much coverage in the Hebrew press, Israeli Justice Minister Yariv Levin and Foreign Minister Gideon Sa’ar’s judicial reform proposal, presented on Jan. 10, does little in the way of real reform, analysts told JNS.
The proposal involves two issues: the selection of judges, and Israel’s Basic Laws.
First, it proposes changes to the makeup of the committee that selects judges. Critics of the current system argue that sitting judges have veto power over it, allowing them to pick their successors. This, they say, leads to political homogeneity, which in Israel’s case means progressive, activist and left-wing judges.
Second, the reform offers adjustments to Basic Laws. Quasi-constitutional in nature, Basic Laws are considered to have more force than regular laws.
Analysts JNS spoke with were unimpressed with the reform’s proposals in either case.
“It is not a reform and not even a start thereof. It is a superficial maneuver,” said Justice Haran Fainstein, a retired Israeli judge who teaches at Bar-Ilan University’s Department of Criminology.
“There are no substantive changes. It’s a poor compromise,” he said.
While Fainstein acknowledged that the focus of the Sa’ar-Levin reform—the selection of judges—is important, he said the major issue it seeks to solve is limiting the Supreme Court’s jurisdiction, referring to the court’s attitude that it has the right to weigh in on every issue.
Sa’ar and Levin hope to end the Supreme Court’s control of the Judicial Selection Committee by removing two committee positions held by Israel Bar Association members and replacing them with attorneys appointed by the Knesset—one chosen by the coalition and one by the opposition.
That reform has been billed as stripping the Supreme Court of its de facto veto over judicial appointments.
The committee’s new setup: three members of the coalition, one Knesset member from the opposition, three Supreme Court judges and the two aforementioned attorneys.
While this alters the composition of the Judicial Selection Committee, it still maintains “the overall balance of power in favor of the activist progressives who currently dominate the courts and the bureaucracy,” said Avi Bell, a law professor at the University of San Diego and Bar-Ilan University.
“During left-wing governments, the left will hold a 7-2 majority, enabling continued court-packing. During periods of right-wing ascendancy, the left will hold a 5-4 majority—not enough to appoint more progressive activist judges, but enough to veto the appointment of any moderate, conservative or traditionalist judges,” Bell told JNS.
However, he conceded that the proposal is on target in its focus on the Judicial Selection Committee. “By far, the best method for reversing the judicial power grab is different decisions by the judiciary itself. Those decisions will only be made by a judiciary that is more ideologically diverse and more conscious of the necessity of deference to democratic politics and policymaking. Thus, the process by which judges are appointed is very much the crux of the problem,” he agreed.
Unfortunately, the Sa’ar-Levin deal, by preserving “almost all of the excessive powers of current judges in the appointment process” ensures the continuation of “judicial overreach and political bias for many years to come,” he added.
The compromise is equally disappointing in its adjustments to Basic Laws. In changing some rules around Basic Laws (restricting the topics those laws can cover and the circumstances under which the court can repeal them), Sa’ar and Levin end up “retroactively legitimizing the Supreme Court’s power grab of 30 years ago, when it bestowed upon itself the authority to nullify legislation enacted by the Knesset, with unclear effects on the future of judicial overrides of democratic lawmaking,” said Bell.
Supporters of judicial reform have argued that Israel’s High Court of Justice doesn’t have the right to strike down any laws as no such right has ever been granted to it by the Knesset, Israel’s lawmaking body. The right to strike down laws was granted to the court by none other than the court itself, in a 1995 ruling.
In that decision, the court declared that Basic Laws were a kind of constitution. However, in elevating Basic Laws to the level of a constitution, it made them presumably immune to repeal. Yet, at the start of last year, the High Court gave itself the power to strike down Basic Laws as well.
The Sa’ar-Levin proposal is only a small fraction of what Levin set forward when he announced an ambitious set of reforms in January 2023. Large-scale protests engulfed the country, involving roadblocks and some violence, creating a social rift that threatened the country’s cohesion. Ultimately, the protests were successful in derailing the reform push.
“Certainly, the compromise is much more limited than the reforms proposed by Justice Minister Levin two years ago or [Former Justice Minister Daniel] Friedmann two decades ago,” said Bell. “But if the compromise ends the scorched earth tactics of the judicial maximalists and reform opponents, it should be hailed as a positive step forward.”
Even though the reform covers only a tiny portion of the original legislative package, the opposition has come out in near unanimity against it. When the Knesset Constitution, Law and Justice Committee convened on Wednesday to discuss the bill, MK Gilad Kariv of The Democrats Party said the opposition “will stand as a formidable wall in the committee.”
National Unity Party leader Benny Gantz on Saturday said he would be open to discussing the reform but then set forward a list of demands in exchange for doing so that the coalition government would be unlikely to meet.
At the height of the battle over judicial reform in 2023, opposition leaders acknowledged the need for reform, but opposed the dramatic legislation package proposed by the government. They said they would be prepared to discuss something reasonable, making their determined stand now against a watered-down version of reform difficult to understand.
According to Bell, the motivation of the anti-reformists has two components. “One part is focused on issues of substance. There are opponents to reform who are deeply suspicious of democracy and want to create and preserve aristocratic rule by a progressive lawyer elite,” he said.
“The other part is social-political and focuses on the efforts of a dwindling socialist, secular, Ashkenazi, Israel-born minority to maintain its grip on power despite having lost the power to win elections,” he said.
“Neither of these are positions that can convince a majority of the public,” he noted.
During the protests, reform opponents focused instead on undermining key institutions like the Israel Defense Forces, calling for reservists to refuse to serve and then “gaslighting the public about responsibility for the damage caused by the sabotage campaign,” he said.