Don't change judicial selection process without opposition consensus - editorial

Following last week’s passage of the Law to Cancel the Reasonableness Standard in the Knesset, the next stop in the judicial reform train will be changing the process for appointing Israel’s judges, Prime Minister Benjamin Netanyahu said on Sunday.

After that, he declared in a Bloomberg interview, the train will stop.

Except that maybe it won’t because other passengers on the train – specifically the haredi (ultra-Orthodox) parties, which Netanyahu needs for his government’s survival – are unlikely to let it stop before the third stop, by far the most important for them: a law granting the Knesset authority to override Supreme Court decisions.

Even though Netanyahu told Bloomberg he does not think this is something that should be legislated and that the Knesset should not have the power to “just knock out any decision the court makes,” the political reality of his reliance on the haredi parties could compel him to change this stance.

Postpone Judicial Selection Committee changes until the opposition is on board

While we agree with the prime minister that the override law should be shelved, we would go even one step further and encourage him to postpone plans to restructure the Judicial Selection Committee – unless consensus with the opposition parties can be reached.

Following the national trauma caused by the passage of the reasonableness clause, a relatively minor component of the broader judicial overhaul plan, can this country truly afford an even greater upheaval – larger protests, more reservists refusing to show up for duty, greater damage to the economy – sure to follow if the judicial selection process is changed without agreement by the opposition?

We think not.

Netanyahu told Bloomberg what he told US President Joe Biden last month: he would try to reach a consensus with the opposition parties on the matter. But he did not say he would abandon the idea if no agreement could be reached.

“If we can’t get buy-in from the opposition in the parliament, then there is always buy-in from the public,” Netanyahu said. “I think we should choose something that has broad acceptance.”

Netanyahu did not elaborate on how to get public “buy-in” or what plan he could devise that would win broad public acceptance. However, should the opposition parties remain uncooperative, any unilateral coalition action in the Knesset when the parliament reconvenes in October is sure to make the resistance the country has seen up until now pale by comparison. Because while the reasonableness standard was not a central component of the judicial overhaul, how judges are selected is very much the heart of the matter.

Currently, judges are selected by a nine-member committee of three Supreme Court justices, two cabinet ministers, two representatives of the Israel Bar Association, and two Knesset members. A minimum of seven votes is requisite to appoint a Supreme Court justice, thereby granting both the justices and politicians veto power, ensuring a compromise.

A new proposal that has already passed its first reading in the Knesset and triggered massive demonstrations gives the coalition the final say on appointments. Another proposal under discussion excludes judges and bar association representatives from the committee entirely and instead would have the committee composed of half coalition representatives and half members of the opposition parties. As Netanyahu’s cabinet secretary Yossi Fuchs said last week, how could the opposition protest if they will get half the members on this committee?

However, this leads to other questions bound to stir passionate debate – for instance, should the selection process be entirely in the hands of politicians, without judges or legal community representatives? Moreover, some will argue that if the judges are appointed strictly along political lines – with the coalition and opposition appointing judges aligned with their respective worldviews – then the country is simply moving debates that should happen in the Knesset over to the Supreme Court.

At this charged moment, the country needs a break from judicial reform so that it can regain its balance. Part of the reform has passed, and the issue is squarely on the national agenda. Now is the time to stop the train and deal with other pressing issues until the government is better positioned to build a consensus.