Judicial Selection Committee (Israel)

The first five Israeli Supreme Court judges. F.r.t.l.: Cheshin, Dunkelblum, Smoira, Assaf, Olshan.

Until the enactment of the Judges Bill, the Justice Minister appointed the judges. Only the appointment of judges to the Supreme Court needed approval of the Cabinet and the Knesset.

When the State of Israel was established, the British judges appointed by the Mandate government left the country, but in most courts the Jewish judges remained, allowing the continued operation of the courts following the Declaration of Independence. In the Supreme Court only one Jewish judge, Gad Frumkin, was serving at the time.

Pinchas Rosen, the first Justice Minister decided not to continue Frumkin's tenure, and appointed five new justices, who were confirmed by the provisional government and provisional state council in July 1948. The five judges were appointed on a partisan basis: the court president Moshe Smoira and Yitzhak Olshan were identified with Mapai; Menachem Dunkelblum was associated with the General Zionists; Rabbi Simcha Assaf represented the religious faction; and Zalman Cheshin was mistakenly considered to be a revisionist, although in fact he belonged to the Haganah.

In 1952, the Knesset passed the Judges Bill, which stipulates methods of appointing judges (among other things). This bill proposed that the President will appoint the judges, at the suggestion of the Minister of Justice, in accordance with the recommendation by a committee of these ten members: the Justice Minister (committee chairman); another Cabinet minister; Chief justice and another judge of the Supreme Court; the Attorney General (who will be entitled to appoint in his place the Solicitor General); the Dean of the Faculty of Law in the Hebrew University; two Knesset members; and two members of the Law Council (now the Israel Bar Association).

According to Basic Law: the Judiciary, established in 1984, The committee has nine members, as follows:

• Justice Minister – Chairman
• Cabinet Minister, chosen by the Cabinet.
• Two Knesset Members, chosen by the Knesset (Since 1992 they usually appoint one member from the coalition and one from the opposition).
• Two members of the Bar Association (Usually selected by the two largest factions in the bureau).
• The Chief Justice, and two other judges of the Supreme Court (replaced every three years by the panel of judges, the selection is usually by seniority).

Representatives of the Supreme Court

• Justice Esther Hayut – Chief Justice. Member since 2017.
• Judge Neal Hendel – Supreme Court Deputy Chief Justice. Member since 2018.
• Judge Uzi Vogelman– Supreme Court Justice. Member since 2020.

Bar Association representatives

• Attorney Eilana Saker – Member since 2015.
• Attorney Mohammad Neamana – Head of Northern District in the Bar Association. Member since 2011.

Israeli government officials

• Avi Nissenkorn – Justice Minister.
• Miri Regev

Knesset representatives

• MK Zvi Hauser
• MK Osnat Mark

The process of electing the judges is regulated by the Rules of procedure of the Judicial Selection Committee, 1984.

This process includes:

• Application for election by the applicant. Includes filled questionnaire; resume; recommendations; etc.
• Verification of recommendations by the court's administration.
• Publishing the candidate list in Reshumot,[1] followed by a waiting period of at least 21 days in which every citizen may contact the committee before the hearing, with a reasoned explanation of opposition to a particular candidate.
• Interview of the candidate by a subcommittee of the Judicial Selection Committee, containing at least three members (at least one judge, one attorney, and one MK).
• Final decision by the Committee to confirm or reject a candidate.

The Committee's decision to appoint a judge in all courts (except the Supreme Court), is passed by a simple majority of members present at the meeting. Appointing Supreme Court judges requires a majority of 7 of the 9 committee members, or two less than the number present at the meeting (6 of 8, 5 of 7, etc.).

Confidentiality applies legally to the committee's deliberations and they are not published for public review. This confidential appointment process is unique, because the selection process for every other public office is required by law to register and publish minutes of the committee's meetings.

During the existence of the Judicial Committee the influence of the Supreme Court committee members was almost absolute: although they constitute only a third of the committee, they are the only cohesive and stable group, while the other members change frequently.

Until the 1990s, the judges dominated the Committee through an alliance forged with representatives of the Bar Association.

This system – dubbed by some as the "friend brings a friend" cycle – has been criticized by jurists and politicians, mainly aligned with the political right in Israel, who argued that the selection process does not properly represent public opinion, and that since the Supreme Court inevitably discusses politically disputed matters, the process impairs the principles of democracy. Some pushed for change in the process but were opposed by the fear that a change will eventually lead to politicization of the Judicial Selection, based on political views and affiliations rather than their professional and moral skills.

One of the suggestions, by Mordechai Heller, was to go through the appointments system reminiscent of the federal courts in the United States, and to some extent the method that was used in Israel before 1953: authorizing the Prime Minister to propose candidates, and appoint them by Knesset authority, after a public hearing process (this was suggested at the time when there were direct prime minister elections in Israel, according to which Heller viewed the prime minister's office and the Knesset as two independent authorities, a distinction that is now obsolete since the prime minister is no longer elected directly). He even raised the possibility of adding a professional committee to ensure that candidates meet the appropriate qualification level.

Prior to his appointment as Justice Minister, Professor Daniel Friedmann wrote that it's crucial to change something in the composition of the committee. He proposed that instead of selecting all three judges to the committee from the Supreme Court, two shall be district court judges or retired district court judges. Some of the benefits would be dispersed authority (preventing a powerful positioning of a relatively small group of Supreme Court justices in driving the whole judicial system); more objective approach to candidates; and that the district judges will be better acquainted with the candidates for lower courts whom they have to appoint.

In contrast, the Israeli Democracy Institute supports leaving the status quo intact, and includes the existing system in its proposed Constitution without any changes. The Head of the Bar Association, Yuri Guy-Ron, also supports keeping the existing pattern. (Retired) Chief Justice, Aharon Barak strongly condemned the proposed changes in selecting judges. He argued that although the Israeli system is not free of problems, it still tops all the suggestions to improve it, and that on this matter it's better that other countries learn from Israel and not the opposite.

Several Knesset members tried at different times to change the legislation the committee structure, including David Tal and Michael Eitan, at the time chairman of the Knesset Constitution, Law and Justice committee, but their proposals didn't gather enough support.

Daniel Friedmann was appointed Justice Minister in February 2007. Critical of the judicial system before, and an outspoken opponent of the Supreme Court and the committee's selection process,[2] he was appointed by, then Prime Minister, Ehud Olmert to shake up the judicial system. His opponents criticized his appointment as a political maneuver to influence the judicial system, specifically the case against Olmert's close friend and important ally, and Friedmann's predecessor as Justice Minister, Haim Ramon. Friedmann criticized the court's handling of the Ramon affair in an article just days prior to his appointment; he later also criticized the guilty verdict on Ramon.

Friedmann proposed some fundamental changes to the committee, including the number of members and the way they are selected.[3] He had some highly publicized encounters with Chief Justice Dorit Beinish and her predecessor Aharon Barak over his reform proposals and other related matters. Barak even said about some of Friedmann's proposals that they are like "holding a gun to the head of the Supreme Court".[4] In the end, he succeeded in implementing some of his proposed changes, but the system's critics still charged that it wasn't nearly enough.

In June 2009, with the selection to the committee of the two right-wing MK's, Uri Ariel (National Union), and David Rotem (Yisrael Beiteinu), a conflict erupted between the various factions of the Knesset members. The first committee meeting brought about a fundamental change in the appointing process when it was ruled that candidates will need to undergo tests and a course adjustment, and will be evaluated by a psychologist to examine their mental suitability – against the fierce opposition of Chief Justice Dorit Beinish.

• Supreme Court of Israel