'Softened' judicial selection proposal tailored for coalition's needs - analysis

Coalition party leaders announced on Sunday night that it was adopting a new version of the first bill of the judicial overhaul on the makeup of the Judicial Appointments Committee.

The central change is that the coalition, which will enjoy an automatic majority of six out of 11 committee members, will only be able to appoint two High Court judges per Knesset term without the approval of the rest of the committee.

A third High Court judicial appointment in a given term will require the support of at least one of the committee’s two opposition MKs; a fourth appointment will also require approval of at least one of the committee’s three High Court judges.

Why did the coalition choose this change as the "softened" version of the law?

Why did the coalition choose this change as the “softened” version of the law? A look at the current makeup of the High Court suggests an answer.

According to law, High Court justices automatically retire at age 70. Two justices will reach this age and retire this October: Esther Hayut and Anat Baron. The next vacancy will come only a year later, in October 2024.

The new proposal gives the coalition complete control to appoint whoever it pleases to fill the upcoming two vacancies in just over six months.

Hayut is, of course, also the chief justice. Once she retires, the Judicial Appointment Committee will appoint a new chief justice.

Officially, out of the 15 justices, the committee can choose whoever it pleases to serve as the chief justice.

However, the justices themselves adopted a custom whereby the only justice to put his name forward is the one who served the longest as a High Court judge. This is known as the “seniority” custom.

Enter the two new judges chosen by the coalition. Nothing in the law prevents either of them from putting their names forward as candidates for chief justice. As mentioned, the coalition will have an automatic majority in the committee, and thus it can name one of the brand new justices the new chief justice.

Why does this matter?

The chief justice has a number of authorities that other justices do not.

First, the chief justice is an automatic member of the Judicial Appointments Committee. A chief justice who owes his or her double promotion (as High Court justice and then chief justice) to the coalition, would be more likely to add another vote – a seventh – to the coalition’s majority in the committee. The new proposal says that appointments to lower courts – magistrate and regional – require a majority of seven out of the 11 votes. If the new chief justice is beholden to the coalition, the coalition would have the power to appoint whoever it wishes to the lower courts as well.

Second, the chief justice decides how many High Court judges will sit on appeals, and who they will be. This is important, as the outcome of some cases depends on the makeup of the bench that hears them. If the new chief justice is beholden to the coalition, the coalition will be able to influence this as well.

Third, and perhaps most importantly, the chief justice appoints the Central Elections Committee chairman, who is a High Court justice, as well as the chairs of each Regional Election Committee (REC), who are also judges. The custom for many years has been that the deputy chief justice, who is second on the seniority scale, serves as the CEC chair. But this is not enshrined in law, and a chief justice who is beholden to the coalition could appoint a new CEC chair and new REC chairs who are beholden to him or her.

The CEC chair rules on many appeals during campaign seasons. These can greatly influence the campaigns, and thus, the election. For example, the CEC chair rules on whether or not politicians are using forbidden resources for their reelection campaigns and whether or not the use of party funding is used legally and in accordance with the election laws. The CEC chair, in general, is the only official in the CEC who is apolitical and is central to promising a free and fair election.

A CEC chair who is beholden to the coalition could act to tilt the election in favor of said coalition.

In conclusion, by appointing the next two justices in October, one of whom could become the next chief justice, the coalition could still gain political influence over the court system.

This is likely why the coalition proposed that it would specifically allow itself to appoint “only” two justices without the support of the opposition.