In the coming week, the Supreme Court – with a full 15-judge panel – will discuss the petition to force Justice Minister Yariv Levin to convene the Judicial Selection Committee, whose work has been frozen for a lengthy period due to the argument surrounding its composition.
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Those who follow my writings and interviews in the media and the press know that I don't express political views, especially not on legal reform. Similarly, I previously rejected every offer, including flattering ones, to enter politics, and I plan on doing so in the future.
Video: Protesters in New York demonstrate against judicial reform /Credit: Amnon Shemi and Danny Tenenbaum, UnXeptable
However, for one time only, I have decided to change my ways and offer an alternative suggestion for the composition of the Judicial Selection Committee, since I (perhaps naively) don't see it as a political proposal, but as an attempt, perhaps the final one, to lower the flames.
To the best of my knowledge, a clear majority of the country thought, long before the elections, that it was necessary to change the composition of the Judicial Selection Committee, and still thinks this way today. In my opinion, changing the composition of the Judicial Selection Committee should have been the first topic on the agenda.
It's possible that broad agreement on the method for choosing judges will facilitate the beginnings of the long and complex process of building a Supreme Court and legal system that is balanced and faithfully reflects the entire nation, so there will be no need for discussions about further changes, since these will happen naturally in a balanced legal system, with an emphasis on the Supreme Court. Even if this doesn't happen, it would be worth making changes only after attempting, with broad agreement, to balance the composition of the Supreme Court and the legal system.
The proposal is based on the following principles: The committee will have nine members. Three will be chosen by the Supreme Court president, three by the Coalition (one of them will be the justice minister, who will serve as the committee chair), and three will be chosen by the Opposition. Each of these blocs will be able to choose who they want (a serving or retired judge, a jurist or an academic, a current or former minister, a current or former MK, or any other Israeli citizen). The Coalition or the Opposition will be allowed to change their representatives on the committee in the case of political change and the transition of a party from one side to another.
Choosing the judges, from the president of the Supreme Court and until the final registration, will require a majority of seven members of the committee. A majority of eight members can be required for the election of the Supreme Court president, and perhaps also for choosing a Supreme Court judge.
The proposal has two flaws: It may result in total stagnation in choosing judges, if agreement is not reached between the three groups forming the committee (or at least one member joining the opposing group), and this may sometimes lead to the choice of mediocre judges, due to the need to reach a compromise between the groups.
To the best of my knowledge, there is a solution to these two flaws. When the committee convenes, and disagreements and factionalism subside, each member of the committee will strive to make appropriate appointments. It may be that there will be compromises and candidates will only be chosen because they are accepted by everyone on the committee, or that "deals" will be made, but this is exactly what will lead to a balanced composition.
I am convinced that similar proposals were raised in the past, or maybe are currently on the table. I received enthusiastic agreement, as well as reservations, when presenting these ideas to people from across the political spectrum.
The rationale behind the proposal is that, when considering this important issue, there can't be winners or losers. No figure, from any side, should be able to control a certain constellation of the committee, as happened in the past, and prevent balance and homogeneity.
There will undoubtedly be opponents to the proposal, but in my opinion, this will only prove that the opponents are not really seeking a solution, but want to preserve their preferred status, or to control the committee, or to replace the government.
If the Coalition opposes the proposal and insists on a majority in the committee, it will prove that they are not interested in balance but in control, without understanding that today they are the Coalition and tomorrow they may be the Opposition and this proposal, which must not be changed in the future without a special majority, will preserve their status as the Opposition. If the Opposition opposes the proposal, which gives them the same power as the Coalition, this will prove that their goal isn't really to change something in the system and to lower the flames, but only to change the government using non-democratic methods. If the judges oppose the proposal, it will show that their goal is only to preserve their unreasonable powers, which have no precedent anywhere in the world, in determining the composition of the courts.
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It's clear that the Israel Bar Association will oppose the proposal, but there is broad agreement that there is no justification for their membership of the committee. If one of the groups wants to offer them one of their places, they can of course do so.
If the proposal is adopted by each side, maybe we will be able to prevent the upcoming sensitive and needless Supreme Court hearing, and perhaps the hearings that are expected to follow, which may lead the country in unwanted directions.
The above analysis and opinion are my personal opinion only and do not represent any of the different groups with whom I am currently in touch, or those with whom I have worked in the past.
Brigadier General (res.) Jacob Nagel is a senior fellow at the Foundation for Defense of Democracies (FDD) and a visiting professor at the Technion's Faculty of Aerospace Engineering. He previously served as Prime Minister Benjamin Netanyahu's national security advisor and head of the National Security Council (acting).
