For the first time in over a year, major developments can be seen on the judicial front of Israeli politics. In the past week, tensions have come to a head on two crucial issues that sat at the heart of the government’s 2023 judicial reform push: the powers of the Supreme Court and the interference of the attorney general in government policy.
Judicial overreach
Last Thursday, the High Court of Justice set a Jan. 16 deadline for Justice Minister Yariv Levin to call a vote in the Judicial Selection Committee (JSC) to nominate a new Supreme Court president. This ultimatum follows almost a year of delays by Levin in calling a vote, and came after Levin’s decision to invite outside legal experts to counsel him during a committee meeting caused a walkout by its three Supreme Court justices.
Justice Yitzhak Amit, current acting president of the court, as well as judges Daphne Barak Erez and Noam Sohlberg wrote a scathing letter to Levin following the incident, demanding that no outside counsel be used and that committee deliberations be kept closed. The letter was followed by the High Court ruling establishing the Jan. 16 deadline.
“This is not a new issue. There have been multiple discussions about the procedures for naming the president of the Supreme Court, and it comes up often when a new selection is made. It is surprising that the members of the selection committee are refusing to entertain any discussion on this issue,” Avi Bell, a professor at Bar-Ilan University’s Faculty of Law, told JNS. “That’s fairly high-handed,” he added.
Levin put the brakes on the appointment of a new Supreme Court president after his judicial reform initiative was paused due to the outbreak of war in October 2023. Reforming the selection committee, which currently comprises representatives of the court, the Israeli Bar Association, the coalition and the opposition was one of the key features of Levin’s reform package. He has especially taken issue with the principle of “seniority,” a framework that automatically gives the role of president to the most senior judge on the court.
“Seniority is not a law. It’s an established custom, but by no means is it legally mandated,” Bell explained.
Many opponents of the current system have argued that current rules turn the presidency into a self-selecting office. Bell explained that considering both the principle of seniority and the mandatory retirement age for judges (70), certain judges are preemptively set up to one day become president when first named to the court. Furthermore, there is a conflict of interest regarding the issue of seniority as all three justices on the committee would eventually become president should the principal be preserved, he added.
By seniority, Amit is to become the next president, but Levin has tried to come to a compromise with the committee which would allow the government to exert some influence on the court. Levin proposes to give Justice Yosef Elron, who is seen as more right wing, the presidency for one year, after which Amit would take over for three years.
The issue is all the more crucial considering the extreme powers associated with the office.
“Presidents of the Supreme Court wield an enormous amount of power. They control the agenda and they can stack panels. Some of these powers and roles are things the judges have simply taken upon themselves without a statutory warrant. It’s a very powerful position,” said Bell.
Levin has made clear that he will not take the court’s ultimatum lying down. In a Facebook message on Saturday night, Levin said that the court’s actions amount to a “takeover of powers from the Knesset and government that effectively stripped me of the authority granted to me by law to set the agenda of the JSC.” He further said that as a result of the deadline the government has “no choice at this time but to act in order to restore its powers.”
Bell explained this as “a conflict here between the traditional position, which is not anchored in law, versus the agenda-setting power of the chairman, who by law is the justice minister. The justice minister does not have a majority on the committee so his only way to exert power is by setting the agenda. Therefore the Supreme Court justices are trying to go over his head by setting the agenda for him and forcing a vote.”
Though Levin didn’t explicitly state what type of action he has in mind, multiple Hebrew media sites have reported that he intends to move forward with efforts to reform the structure of the JSC. A bill of this nature already passed a first reading in the Knesset in February 2023 and can therefore more quickly pass into law following a second and third reading.
While such a move by the justice minister can be seen as an attempt to revive the judicial reform movement of 2023, it can also be seen as a bargaining chip in committee negotiations. Multiple senior coalition sources have said that any talk of a revival of the JSC bill is being used by Levin to push the committee to a negotiated settlement.
Bell concurs, telling JNS: “Levin is looking at this as a card to play in a broader negotiation, whereas Amit is not particularly interested in negotiating.”
Other coalition actors have also pointed out that the recent developments in the JSC point to a dire need for judicial reform. In a recent interview with JNS, Knesset member Boaz Bismuth of the Likud said the debate surrounding the Supreme Court president points to a fundamental disagreement about the origin of sovereign power in the Israeli political system.
“The question is, [who has] the last word? Is it the judges or is it the ones who were elected? Lawmakers make bills and judges judge. But when one tries to impose himself on the other, you get this situation that we have,” he said.
Reining in the attorney general
On the second front of Israel’s emerging judicial war, the governing coalition has unveiled a surprise offensive aimed at ousting Attorney General Gali Baharav-Miara.
A strong push from prominent coalition leaders to fire the attorney general over what they claim is her persistent meddling in government policy, from her refusal to allow the government to seek independent legal representation to her interference in various ministries’ staffing decisions, has been gaining steam.
“All she does is try to prevent and stop the government’s work,” MK Simcha Rothman, chairman of the Knesset’s Constitution, Law and Justice Committee, said in a recent interview. “We won’t have the judicial system dictate its political agenda to the public in Israel, not even during wartime,” he added.
Firing the attorney general would require a recommendation by the Advisory Committee for the Appointment of Senior Civil Service Officials, as well as a cabinet vote.
The Knesset has already passed a “symbolic proposal” officially recommending that she be fired. “The proposal addresses a highly sensitive issue at the heart of Israeli society. It touches on the governance of the executive branch and its ability to implement its policies. This proposal also delves into the ultimate question of whether the people are in control of the state, whether the Knesset of Israel is led by the people’s elected representatives, and whether it still serves as a principled compass for the Israeli government,” said MK Amichai Boaron, who initiated the proposal.
According to Communications Minister Shlomo Karhi, 13 of the needed 17 cabinet members have already signed the proposal. Shas Party chairman Aryeh Deri, who is considered a kingmaker for the proposal, has said he is willing to support firing Baharav-Miara. “If Levin brings the dismissal of the attorney general to the government for approval all Shas ministers will vote in favor,” he said in a recent interview. “I think she harms democracy in the most serious way possible,” he added.
National Security Minister Itamar Ben-Gvir has emerged as a prominent leader in the push to revive judicial reform and fire the attorney general. Ben-Gvir’s staffing decisions have been singled out by Baharav-Miara as particularly needing judicial oversight. “This is the time to send the attorney general home. We have a rare opportunity now and I hope everyone will be on board,” Ben-Gvir said in a recent statement.
Bell explained that while the JSC and AG issues are not identical, they share a common philosophical thread. “The issues of the Supreme Court and the attorney general are not linked per se, but are connected in so far as the attorney general, like the Supreme Court, believes she’s under attack. She is defending the institutional powers that she, and the court, have grabbed for themselves over the years. They see themselves as guarding the gates of civilization against the barbarians who are trying to take all their power away. They view these events as an attack on their power, which in their minds is synonymous with the rule of law and democracy,” Bell told JNS.
Coalition infighting
Despite the growing calls for decisive action by the government to rein in the judicial branch, many coalition members have shared concerns about moving in this direction. Despite signaling support for firing Baharav-Miara, Shas chairman Deri, as well as Foreign Minister Gideon Sa’ar and Finance Minister Bezalel Smotrich, have signaled opposition to reintroducing the judicial reform legislative package.
Furthermore, according to Hebrew media reports both Shas and United Torah Judaism ministers have signaled their opposition to moving forward with a broad judicial reform package before the issue of ultra-Orthodox military draft exemptions is dealt with.
According to sources from the finance minister’s office, the cabinet meeting on Sunday, where both these issues were discussed, ended in a “decision not to decide.” A further meeting on Monday, where details of potential judicial reform plans were supposed to be agreed on, was suddenly canceled.
The foot-dragging on this issue from various coalition partners has most recently led Minister Ben-Gvir to take the extreme step of instructing his party not to vote with the coalition to get the ball rolling. Posting on X, Ben-Gvir called on the government to “either send her [Baharav-Miara] home or she will bring the government down.” On Monday, Ben-Gvir’s Otzma Yehudit Party voted against the government budget, causing the bill to pass by only two votes in first reading.
The unconventional moves by Otzma Yehudit led to a very sharp response from Finance Minister Smotrich.
“Ben-Gvir and his friends, who seem to have completely lost their way, voted against transferring a critical budget for victory, reconstruction and reservists, thereby jeopardizing a historic opportunity for the future of settlement in Judea and Samaria and the State of Israel with the incoming Trump administration. In this, he has allied with the Arab MKs and the opposition, and is endangering the right-wing government in the middle of a war,” tweeted Smotrich. “We will continue to work for victory, with or without Ben-Gvir,” he added.
In the context of these significant coalition squabbles, Prime Minister Benjamin Netanyahu finds himself unable to intervene. Netanyahu was forced to sit out parts of Sunday’s cabinet meeting after the Supreme Court ruled that he could not interfere with decisions surrounding the firing of the attorney general due to a conflict of interests stemming from his ongoing criminal trial for bribery, fraud and breach of trust.
According to recent reports, an aide in the Prime Minister’s Office was present for the entire cabinet meeting on Sunday. Democrats Party MK Naama Lazimi wrote in a letter to Baharav-Miara that the aide’s presence signaled a breach of the Supreme Court ruling.
Despite his inability to directly engage in the conflict, Netanyahu has called for stability in the coalition. “This is a period of opportunities and challenges. We must maintain the coalition, and convey stability. Pass the budget even if there are disagreements, and get to the votes,” the prime minister said in a recent statement.
What lies ahead
There is a wide spectrum of possible next steps in the fight over judicial reform. The most hawkish wing of the coalition believes that firing the attorney general will not be enough.
“The attorney general should be fired, but that’s not where it ends. An honest and decent person should be brought in, and there are such people in Israel. She [Baharav-Miara] should be prosecuted for everything that’s happened over the past two years,” said Regional Cooperation Minister Dudi Amsalem (Likud) in a recent podcast. “This isn’t just a matter of firing her and that’s it. No way! That’s not where it ends; it’s only the first step. The second step is that the person must pay for their actions. Serious offenses have been committed here, yes? Certainly breaches of trust, harm to public order and damage to the security of the State of Israel,” he added.
Amsalem further called for an unwavering push toward the summit of judicial reform. “The reform didn’t advance because of the bleeding hearts in the Likud, since all the other parties in the coalition were with us. Even Bibi [Netanyahu] blocked it because of the protests. I don’t care about that. There’s a mission, and it needs to be carried out and completed,” he said.
Other coalition members have floated compromise proposals that might placate the hardliners on both sides. Minister Sa’ar has been a prominent advocate of a new proposal that would reduce the power of the attorney general by splitting her office into two roles, chief government legal adviser and chief prosecutor. MK Michel Buskila, a member of Saar’s United Right Party, tabled a bill on the dual-role proposal on Sunday. According to Buskila’s proposal, the role of chief prosecutor would be held by a three-person committee comprising a former High Court judge appointed by the current chief justice, a retired attorney-general appointed by the justice minister and a private defense attorney appointed by the National Public Defender.
Sa’ar expanded on his party’s midway proposal, saying, “At this time, great responsibility is required to avoid exacerbating tensions in Israeli society, and every move must be considered and take into account the enormous security and political challenges that Israel is facing and will face in the near future.”
As the government works to define a clear policy on judicial reform, the judicial branch and the opposition have a sizable arsenal of options regarding how to respond to events as they unfold.
Beyond legal maneuvers, opposition leaders have made clear that any effort to bring back judicial reform or fire the attorney general would be met with mass unrest far greater than that seen in 2023. In the context of the ongoing war, the specter of desertion among reservists, which characterized the 2023 anti-reform movement, is a potent threat. According to a report by journalist Bar Shem-Ur, a significant group of reserve pilots have discussed the possibility of ending their reserve service if the attorney general is fired. Former state prosecutor Moshe Lador has openly urged reserve pilots to refuse service if the coalition moves in the direction of judicial reform.
Despite these calls, hardly any reservists have indicated that they intend to stop serving during the war due to developments on the judicial front.
As tensions flare surrounding a possible revival of judicial reform, very negative potentialities are becoming acute possibilities. According to Bell, responsibility for the brewing crisis lies squarely at the feet of the judicial establishment.
“The Supreme Court justices are playing a game of chicken. They guess that the other side is going to flinch first. They are willing to drive events headlong into collision because they are convinced that the other side will swerve before the two crash into each other. Maybe they’re right, but if they’re wrong there will be a horrible collision,” he said. “Nobody knows what happens after that step is taken. Nobody knows what happens after somebody tells the court that it has gone too far and its decision won’t be respected. The worst-case scenario is violence. I am concerned that this is the exact direction this conflict is going,” he added. “To me, the Supreme Court’s actions are shockingly irresponsible.”