A Coup in Review
September 1, 2023
The first fortnight of September, culminating in Rosh Hashanah, will be one of the most constitutionally tumultuous periods Israel has ever experienced. On September 7th, the Supreme Court will hear petitions challenging the Minister of Justice's refusal to assemble the Judicial Appointments Committee. Within a week, an unprecedented full bench of 15 Supreme Court Justices will hear arguments in the petitions against the amendment to the Basic Law: The Judiciary, that eliminated the "Reasonableness Standard."
However, the lead-up to this watershed moment has been far from tranquil. Last week, in a startling development that jolted the judicial community, Supreme Court Justice Yosef Elron recently signaled his interest in becoming the Chief Justice of the Supreme Court, a decision to be made by the Judicial Appointments Committee. While this may seem like an innocuous procedural move, it represents a significant win for those engineering the judicial coup, particularly Justice Minister Levin.
Israel has a longstanding constitutional custom—dating back to its inception and even to the British Mandate era in Palestine—of appointing its longest-serving Supreme Court Justice as the Chief Justice. Although not mandated by law, this "seniority principle" is regarded by many as a constitutional tradition. It does have limitations, such as potentially saddling the court with a Chief Justice who may not be the most skilled administrator. However, it serves a vital purpose: it ensures political impartiality among justices.
The fear is that deviation from this principle could lead justices to curry favor with political members of the Judicial Appointments Committee, compromising their independence. By law, a simple majority of five out of the committee's nine members is sufficient to elect a Chief Justice. The current committee consists of the sitting Chief Justice Esther Hayut, two other Supreme Court Justices, three coalition members including Minister Levin, an opposition member, and two representatives from the Israel Bar Association.
In the current composition of the committee, Elron stands little chance of succeeding. Elron's request is expected to face resistance from his judicial peers on the committee, Bar representatives and the opposition member.
However, Prime Minister Netanyahu has openly discussed his intent to recalibrate the committee's makeup. Minister Levin's refusal to convene the Judicial Appointments Committee is a tactical delay, awaiting a legal change that could give him total control over appointments. If this occurs, Elron's path to Chief Justice would become considerably smoother.
Elron's move effectively ties his career and reputation to Minister Levin and the governing coalition. Legally, his nomination for the Chief Justice position depends solely on Levin’s sponsorship. While judges in Israel typically refrain from media interaction, it has been reported that Elron’s decision was not coordinated with the Justice Minister. Unconfirmed reasons given to his announcement suggest it had to do with a personal disagreement with Justice Yitzhak Amit, the next in line for Chief Justice based on seniority.
Regardless of Justice Elron's actual motives for announcing his interest in the Chief Justice role, the move has profound and unsettling implications.
First, it exposes a fissure within the Supreme Court, revealing that some justices appear willing to align themselves with the coalition's proposed changes—changes that are widely viewed as undermining democratic principles.
In addition, the timing of Elron's announcement couldn't be more advantageous for the coalition. It undermines ongoing efforts by Chief Justice Esther Hayut to maintain the court's image as an impartial and apolitical institution.
In response, Hayut has recused Elron from the panel that will hear petitions against Minister Levin’s refusal to convene the Judicial Appointments Committee. Although Elron will be replaced by a peer, the reverberations of his announcement are certain to pervade next week’s hearing.
Dr. Ido Baum is the legal commentator of the daily newspaper TheMarker. He is an associate professor of law at the Haim Striks Law Faculty at the College of Management in Israel and heads the Louis Brandeis Institute for Society, Economy, and Democracy. He is also a contributor to USA for Israeli Democracy.
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