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The incoming president of the Supreme Court could raise the flag of compromise in the form of the victor’s outstretched hand and allow Levin’s candidate to be appointed to the court.
By YEDIDIA STERN FEBRUARY 1, 2025 15:53
JUSTICE MINISTER Yariv Levin (right) and Foreign Minister Gideon Sa’ar, a former justice minister, attend a Knesset Constitution, Law and Justice Committee meeting last week. Their proposal is significantly better than the original plan that roiled the country in 2023, but has substantial flaws
(photo credit: YONATAN SINDEL/FLASH90)
The battle for the presidency of the Supreme Court has been decided. After 16 months of struggle, the highest position in Israel’s judiciary has once again been filled.
In accordance with what has been the customary practice since the establishment of the state, the most senior judge on the Supreme Court bench – Justice Isaac Amit – was backed by five of nine committee members, and thus, seemingly, order has been restored. But is this really so?
Opposition to the appointment, obsessively led by Justice Minister Yariv Levin, did indeed fail, but it would be a mistake to frame the conflict as mere “background noise” that can be ignored now that the decision has been made.
Certainly, this was a tactical achievement for Israel’s liberal camp, but it is worth examining the situation from a strategic perspective that considers the status of the court and the notion of the rule of law in Israel in the long term.
The protracted saga, which in recent weeks hit a fever pitch of personal accusations and sharp exchanges between the justice minister and Justice Amit, has widened the cracks in the wall of public trust, which is meant to protect the judiciary from subversive forces with populist tendencies and self-serving agendas.
I would suggest that now, with the court’s directive to appoint the president of the Supreme Court implemented, the liberal forces in Israel reconsider their stance on the ongoing struggle over the Supreme Court. And this time from a non-dogmatic perspective that realistically considers the good of the system from a strategic, long-term angle.
A proposal by Levin and Foreign Minister Gideon Sa’ar to change the law determining the procedure for selecting judges in Israel is currently on the table of the Knesset’s Constitution, Law and Justice Committee. This proposal is significantly better than Levin and Rothman’s original plan that roiled the country in 2023. Nevertheless, although it does not signal the “end of democracy,” it has substantial flaws and should not be enacted in its current form.
If passed, it would politicize the judicial selection process and likely erode the professionalism of Israeli judges in the years to come. The Levin-Sa’ar framework risks altering the professional DNA and ethos of the Israeli judicial system.
A series of critical amendments to their proposal must therefore be demanded – changing the proposed decision-making rule (from five out of 9 to six out of 9), revising the process for selecting the two attorneys, creating an alternative mechanism for resolving deadlocks, and more.
On the surface, it appears that the proposed improvements to the Levin-Sa’ar outline – which were discussed at The Jewish People Policy Institute (JPPI)’s Thin Constitution conference last week and in the media – will cook up spirited debate when brought to the Knesset.
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It is not known what the final dish will look like, but there is significant concern that it will be bland. Instead, I believe it is possible and appropriate to propose a broader package deal with far better results.
Levin previously proposed appointing his associate, Dr. Aviad Bakshi, to the Supreme Court. An objection was raised: Bakshi’s professional and academic track record does not meet the usual criteria for Supreme Court appointments, and he is one of the chief architects of the judicial reform/revolution Levin originally proposed.
Levin’s insistence on Bakshi, despite the existence of excellent conservative candidates who do meet the standards, is not about merit, but is rather an expression of Levin’s need to win his confrontation with “the system.” It is unfortunate that he has chosen to “boycott” Amit.
In any case, from a strategic perspective, it seems to me that appointing Dr. Bakshi – an honest, wise, patriotic man who has the best interests of the rule of law at heart, even if his interpretation of this principle is, in my opinion, quite wrong – is not a tiebreaker move.
In order to prevent the inclusion of one voice, albeit a discordant one, in an orchestra of 15, is it worth risking the enactment of a Basic Law that undermines the process for appointing judges to the Supreme Court and all other courts?
Most legal experts in Israel believe that the existing law (which Sa’ar had a hand in drafting) is far better than the Levin-Sa’ar outline. Given the Israeli culture war and the potential consequences of the return of the judicial overhaul, which is creeping its way back onto the national agenda, what is needed now is a “ceasefire” until after the next Knesset elections. Removing “the law” from the battleground (especially during wartime) is a strategic necessity.
If my advice were followed, the incoming president of the Supreme Court – contrary to all expectations – could raise the flag of compromise in the form of the victor’s outstretched hand and allow Levin’s candidate to be appointed to the court.
But only if it is agreed in advance that the judicial selection process will not be adulterated, that the committee will work to fill all vacancies in the Supreme Court and other courts, and that the constellation of relations essential to the functioning of the justice system – led by the Supreme Court president and the justice minister – will return to normal.
To the purists, I say: “Jerusalem was destroyed only because they strictly upheld Torah law and did not go beyond the letter of the law” (Babylonian Talmud, Bava Metzia 30b).
The writer is president of the Jewish People Policy Institute (JPPI) and a professor (emeritus) of law at Bar-Ilan University.
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