Judicial Reform: A Worthy Compromise?
by Mitchell Kaye
A judicial reform compromise is not as complicated as it may seem, if all sides are truly interested in a solution. On one side, the ruling coalition wants to address the lack of checks and balances on the Supreme Court, where justices are chosen by a small group that has no accountability to citizens nor recourse by voters. On the other side, there is a justifiable fear that if the ruling coalition chooses justices, they will have a monopoly on all branches of government. Both sides have very valid concerns, so how do we reconcile?
For starters there needs to be a dual and simultaneous approach. Adopt the coalition’s position to give those in power a majority on the judicial selection committee and allow the first two justice vacancies in any term to be appointed by such majority. For subsequent appointments during a term, increase the threshold to a supermajority, which would require a minority Member of Knesset and/or justice on the committee to approve of any choices, and in effect have a veto.
Within the year, there will be at least two vacancies based on a mandatory retirement age of 70, including the president of the Supreme Court (similar to America’s Chief Justice), who has the sole power to handpick which three justices will adjudicate matters. Accordingly and concurrently, with the coalition proposal, require at least a majority of all 15 justices to overturn a law or government policy. This will reduce the power of the president and result in a slow and gradual process of democratic change.
Based on the ages of the current justices, it would take eight years for a majority of the court to be selected by the current and future governments, with only five retiring in the next four years, a time period that would exceed the term of the current coalition on the committee for appointments. This would give the electorate in the current and future governments a voice in the process, without the immediate concentration of power in the current (or any future) coalition. For example, in the first year, two justices would be appointed by the coalition while the remaining 13 justices would remain on the bench being appointed under the old system. Clearly no major judicial changes would result.
In parliamentary forms of government, the government in power controls both the legislature and executive branches. Without a constitution, this judicial compromise seems to strike a reasonable balance in preventing absolute power by the coalition, and ensuring that the judiciary is no longer detached from the electorate and accountable only to itself.
A concurrent problem is a lack of constitution; right now, judges can’t rule a law “unconstitutional”; they can only judge it against a “reasonable” standard that is vague and undefined. An interim compromise until a constitution is in place is needed.
Without a constitution, no Knesset can legally bind a future Knesset; this means that any compromise or changes enacted can be further changed or undone in the future. Opposition leaders have promised to reverse any changes once they regain power. However, if more power is vested in the Knesset, it is very unlikely the new leaders would take away their own power.
“Basic” laws in Israel are a form of quasi-constitutional laws. They can generally be changed by the Knesset with an absolute majority of 61. Until a formal constitution is adopted, these “basic” laws should form the basis of a constitution and be put to the voters of Israel for formal ratification. Once that takes place, these super-laws should not be changed without a supermajority of 80 or more Knesset members and a further adoption by the voters. This would serve a dual purpose of giving added protection from changes to “basic” laws that don’t have broad consensus as well as give guidance to the judiciary in their checks and balances over the government.
Another contentious issue is the “override” clause, which allows the Knesset to override judicial decisions with a simple majority of 61, which would give the coalition full power over all branches of government. If a supermajority of the full court is required to overturn a law or government policy, it is only reasonable that a supermajority of Knesset of 70 or 75 votes should also be required for an override.
The true test of good policy and legislation is to look at the longer term effects, when those in power become the minority and those out of power regain control. These ideas, although not comprehensive, can be a worthy compromise and a significant starting point to address the concerns of both sides.
Mitchell Kaye is a former State Representative from Georgia, serving from 1993-2003 and 2022-2023, and is a frequent traveler to Israel.