Significant Constitutional Legislation Appears Ensured of Passage

Amendment Giving Government Veto Over Supreme Court Appointments Passes First Reading

A private bill sponsored by MK Gideon Saar, chairman of the Likud faction in the Knesset and one of the house’s most skilled parliamentarians, passed its first reading on Tuesday, June 24^th. The bill provides that appointments to the Supreme Court require a majority of seven out of nine members of the Judicial Appointments Committee. If the bill becomes law, it will give the government a veto over appointments to Israel’s highest court, the most significant change in the balance of power between the branches of Israel’s government since the current system of judicial appointments was put in place in 1953.

According to Israel’s Basic Law: The Judiciary, judges in Israel are appointed by the Judicial Appointments Committee. The committee consists of the Chief Justice of the Supreme Court, two other Supreme Court justices, two members of the governing council of the Israel Bar Association, two government ministers and two Knesset members. Changing the composition of the committee or vesting the power of appointment in some other body (for example, the Justice Minister and/or the Knesset) would require a majority of 61 Knesset members and is widely regarded as impossible under the current government.

Traditionally (and, it should be noted, illegally) the judges on the committee coordinate their positions and vote as a bloc. The representatives of the Bar usually vote with the judges; they or their partners, after all, regularly have to appear before the Supreme Court. In this manner the current appointment system allows the Supreme Court to dominate the entire judiciary, as well as choose their own colleagues. This has tended in the past to produce a judiciary uniform in its judicial views as well as its political bias. Since this bias tends toward the left, the Labor Party is committed to preventing the emendation of the Basic Law. The coalition agreement gives Labor a veto over amendments to Basic Laws.

Of the two Knesset members on the committee, one is traditionally a representative of the ruling coalition and one of the opposition. When the Left is in power, this means the Right gets only one member (out of nine) on the Committee. Even a government not in sympathy with the Supreme Court gets only three out of nine members on the committee.

Voting procedures within the Committee, however, are not defined in the Basic Law and can be determined by ordinary legislation. Such legislation can be passed by a simple majority, and within the present government Labor has no veto over it.

MK Saar’s law, which requires a majority of seven to appoint Supreme Court judges, effectively requires the consent of the government of the day to Supreme Court appointments. This provides a wedge through which, eventually, the Knesset and the government could influence the composition of the Supreme Court — and the balance of power on the Judicial Appointments Committee itself. The bill would enable the government to veto candidates it finds objectionable and, through logrolling, to get some of the candidates it prefers onto the court. It does not enable the government to impose its candidates over the sitting Supreme Court justices’ objections.

The bill passed through the cooperation of the Kadima party, the largest coalition party, and the right-wing opposition, leaving Labor out in the cold. The bill passed an initial “preliminary reading” on the Knesset floor, passed the Constitution and Law Committee, and was sent back to the Knesset plenum for an official first reading. All this took place in record time — in the three weeks since the opening of the current Knesset session. At this rate the bill could pass all legislative stages and become law by the end of July, when the Knesset breaks up for the summer.

In hearings before the committee, Prof. Robert Aumann, Nobel laureate in economics, gave testimony. Analyzing voting in the Judicial Appointments Committee from a game-theoretical perspective (Aumann won his prize for his contributions to game theory), Aumann demonstrated that the Supreme Court judges’ ability to vote as a bloc effectively gave them 45% of the voting power on the committee, rather than a third. Aumann’s leading opponent among the witnesses, Israel Bar Association chairman Yuri Gai-Ron, seemed rather over his head and could make no effective counter-argument to Aumann’s presentation.

It is noteworthy that the current President of the Supreme Court, Dorrit Beinish, chose not to express an opinion on the law, which patently contradicts the interest and diminishes the power of the Court. Beinish may have calculated that, given the substantial majority the bill enjoys, her vocal opposition would do the court more harm than good and serve to solidify rather than weaken support for the bill.

The impending passage of the bill shows how far the public position of the Judiciary has eroded in the past several years. There appears to be no reservoir of public sympathy that the Court can count on mobilizing to preserve its power and position according to current law.