The battle for the presidency of the Supreme Court has been decided. After 16 months of struggle, the highest position in Israel\u2019s judiciary has once again been filled.<\/p>\n
In accordance with what has been the customary practice since the establishment of the state, the most senior judge on the Supreme Court bench \u2013 Justice Isaac Amit \u2013 was backed by five of nine committee members, and thus, seemingly, order has been restored. But is this really so?<\/p>\n
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 \u201cbackground noise\u201d that can be ignored now that the decision has been made.<\/p>\n
Certainly, this was a tactical achievement for Israel\u2019s 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.<\/p>\n
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.<\/p>\n
I would suggest that now, with the court\u2019s 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.<\/p>\n
A proposal by Levin and Foreign Minister Gideon Sa\u2019ar to change the law determining the procedure for selecting judges in Israel is currently on the table of the Knesset\u2019s Constitution, Law and Justice Committee. This proposal is significantly better than Levin and Rothman\u2019s original plan that roiled the country in 2023. Nevertheless, although it does not signal the \u201cend of democracy,\u201d it has substantial flaws and should not be enacted in its current form.<\/p>\n
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\u2019ar framework risks altering the professional DNA and ethos of the Israeli judicial system.<\/p>\n
A series of critical amendments to their proposal must therefore be demanded \u2013 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.<\/p>\n
On the surface, it appears that the proposed improvements to the Levin-Sa\u2019ar outline \u2013 which were discussed at The Jewish People Policy Institute (JPPI)\u2019s Thin Constitution conference last week and in the media \u2013 will cook up spirited debate when brought to the Knesset.<\/p>\n
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.<\/p>\n
Levin previously proposed appointing his associate, Dr. Aviad Bakshi, to the Supreme Court. An objection was raised: Bakshi\u2019s 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.<\/p>\n
Levin\u2019s 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\u2019s need to win his confrontation with \u201cthe system.\u201d It is unfortunate that he has chosen to \u201cboycott\u201d Amit.<\/p>\n
In any case, from a strategic perspective, it seems to me that appointing Dr. Bakshi \u2013 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 \u2013 is not a tiebreaker move.<\/p>\n
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?<\/p>\n
Most legal experts in Israel believe that the existing law (which Sa\u2019ar had a hand in drafting) is far better than the Levin-Sa\u2019ar 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 \u201cceasefire\u201d until after the next Knesset elections. Removing \u201cthe law\u201d from the battleground (especially during wartime) is a strategic necessity.<\/p>\n
If my advice were followed, the incoming president of the Supreme Court \u2013 contrary to all expectations \u2013 could raise the flag of compromise in the form of the victor\u2019s outstretched hand and allow Levin\u2019s candidate to be appointed to the court.<\/p>\n
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 \u2013 led by the Supreme Court president and the justice minister \u2013 will return to normal.<\/p>\n
To the purists, I say: \u201cJerusalem was destroyed only because they strictly upheld Torah law and did not go beyond the letter of the law\u201d (Babylonian Talmud, Bava Metzia 30b).<\/p>\n