High Court to Levin – convene judicial appointments committee

The High Court of Justice ruled on Tuesday that it expected Justice Minister Yariv Levin to convene the Judicial Selection Committee in “the coming days” in order to elect a permanent chief justice and fill three vacancies on the 15-member bench.

The ruling marked a new stage in the crisis between the justice minister and the High Court over the appointments, which began during the government’s attempted controversial judicial reforms in 2023.

It was issued in response to a petition by the Movement for Quality Government in Israel (MQG) to force Levin to convene the committee in order to make the appointments, which the justice minister has refused to do since taking office in late December 2022.

The committee appointed dozens of judges to lower-level courts but refrained from assigning new judges and chief justice to the nation’s highest court – due to Levin’s insistence on appointing conservative candidates who a majority of the committee’s members find unacceptable.

The High Court bench that issued the ruling, including Justices Yael Wilner, Ofer Grosskopf, and Alex Stein, said that if Levin did not convene the committee in the coming days, they would issue a ruling likely forcing him to do so at “the start of the legal season,” which begins on September 1 at the end of the court’s summer recess.

The ruling came after the period that the court designated for Levin and interim chief Justice Uzi Fogelman to arrive at a compromise expired.

For decades, Israel’s chief justice was elected based on their “seniority,” meaning the longest-standing justice on the bench received this title. Fogelman is the current longest-standing member on the bench, but he declined the position when it was offered to him when the former chief justice Esther Hayut retired in October last year.

Fogelman refused since he is set to reach the age-70 limit and retire this coming October. Next in line is Yitzhak Amit, who is part of the court’s liberal wing. Another judge, Anat Baron, also retired last October, and therefore, alongside a permanent chief justice, the three vacancies that need to be filled are Hayut’s, Baron’s, and soon Fogelman’s.

The nine-member Judicial Selection Committee includes Levin, National Missions Minister Orit Strok (Religious Zionist Party), Otzma Yehudit MK Yizhak Kreuzer, and Yesh Atid MK Karin Elharrar, three High Court justices, and two members of the Israel Bar Association. The judges, Bar members, and Elharrar, who support appointing liberal justices, enjoy a 6-3 majority in the committee.ppointing a chief justice requires a simple 5-4 majority, and the committee is therefore likely to appoint Amit as chief justice. However, appointing new justices to the High Court requires a 7-2 majority, and ergo requires the approval of at least one of the three representatives of the coalition.

A central tenet in the government’s 2023 judicial reform was to alter the makeup of the committee in order to give the governing coalition a majority. Levin and the reform’s proponents argued that elected officials should have the power to appoint judges – not the judges themselves. Opponents countered that this would completely politicize the judicial process and curtail the independence of the court system, which is Israel’s only effective check on government power.

Levin’s team said in response to the ruling that “the decision was expected [and was given] in a conflict of interest and without authority. They are ruling about themselves. They are completely taking over the committee, refusing to accept anyone who isn’t one of them, and just proving how justified the [judicial] reform was.”

Opposition leader MK Yair Lapid retorted: “Justice Minister Levin announced today that from his perspective, the war is over and he is returning to the coup d’état and the attempt to erase Israeli democracy. The Judicial Selection Committee will convene – with or without Levin.”

Israel Bar Association responds

Amit Becher, the head of the Israel Bar Association, responded by saying, “The justice minister is leading the State of Israel to an unprecedented constitutional and social crisis. If it is not stopped, the consequences and responsibility for the destructive results will be his for generations.

“The Bar’s representatives on the Judicial Selection Committee will not surrender to threats. I am sure that the High Court justices [on the committee], whom Levin intentionally put into a nearly impossible pressure cooker, will do the same. The law and the High Court’s rulings (and common sense) require that the committee convene and elect a chief justice, and this is what will happen.”

The MQG said in a statement regarding the ruling, “We see this as a direct continuation of the responsible and balanced policy of the Supreme Court. Unlike Levin, who seeks to impose the appointment of the judge he wants, the court gives the power to the committee and seeks real and substantive compromise while maintaining the basic principles of the Israeli justice system.”

Strok wrote on X, “The High Court’s decision to trample democracy and threaten the justice minister (‘honorably’) to rob him of his authorities if he refuses to relinquish them himself is a new record of being drunk on power...  All because of the judge’s refusal to continue appointing via consensus, like what we did successfully until now.”

Levin made a last-ditch compromise proposal on Monday, which Fogelman immediately rejected. The proposal suggested that conservative Judge Yosef Elron would serve as chief justice for one year until his expected retirement in September 2025, after which Amit would take over.

Regarding the three vacancies, Levin proposed that the first be filled by the representatives from the judicial system who serve on the committee. These representatives would offer two candidates, of which the elected representatives (MKs and ministers) would then choose one. As for the second vacancy, it would be filled in the opposite manner: the elected officials who serve on the committee would offer two candidates, and the judicial representatives would choose one of them. Finally, a current regional court judge, who would need to be approved unanimously, would be appointed for the last available spot on the bench.

Fogelman responded to Levin’s proposal on Monday by first stating that the justice minister’s conduct was “harming the proper functioning of the judiciary, the services provided to the citizens, and the separation of powers.”

He accused Levin of “systematically preventing the exercise of various powers required for the proper functioning of the judiciary” and argued that the judiciary’s essential work was being systematically obstructed at a time when the nation faced unprecedented challenges.

Regarding the proposal itself, Fogelman wrote that the suggestion was in essence to abolish the seniority system by appointing Elron. He explained that this system, which has been in place since the founding of the state, was designed to “protect judicial independence and prevent the politicization of the Supreme Court judges and its president.” Fogelman stressed that there was “no justification” for deviating from this tradition, a stance supported by most members of the Judges Selection Committee.