Character of the judiciary at stake in Tuesday’s Israel Bar Association elections

On Tuesday, an event that usually goes largely unnoticed will become the focus of national attention, as this time the outcome may deeply impact the future of the country.

That event is the quadrennial leadership elections of the Israel Bar Association (IBA), the professional body representing tens of thousands of attorneys around the country.

This year’s elections have become so significant because the victors will be able to chose two representatives to sit on the critical Judicial Selection Committee, the body at the eye of the government’s judicial overhaul hurricane.

Should those who prevail in the elections be receptive to the wishes of the government, they could provide Justice Minister Yariv Levin substantial influence over the powerful committee and he could begin appointing judges — at least to the lower courts but potentially even to the Supreme Court — who share his worldview.

In such a situation, Levin, a fervent opponent of judicial activism, would in effect be able to remake the judiciary in his image without the need to pass much of the incendiary legislation that has recently divided the country.

If opponents of the government’s judicial overhaul plans win out in the IBA elections, the representatives they appoint to the committee will almost certainly be hostile to Levin’s plans.

Justice Minister Yariv Levin holds a press conference unveiling his plans to overhaul the judicial system, at the Knesset on January 4, 2023. (Olivier Fitoussi/Flash90)

In that case, Levin will likely refuse to convene the committee in the short term, and it also may spur him to push once again for the radical reforms he nearly managed to pass in the Knesset in the spring, which would give governing coalitions almost complete control over all judicial appointments in the country.

The election process

In the elections on Tuesday, the more than 77,000 attorneys who are IBA members will have the right to vote at 106 polling locations around the country.

Those eligible will cast four voting slips: one for chairmanship of the IBA; another for the national party slates running to be elected to the IBA’s National Council, which is the “executive branch” of the organization; one for the chairmanship of the IBA’s district councils; and another for the district party slates.

It is the National Council that will select the IBA’s two representatives for the Judicial Selection Committee. This pair will join the seven other members of the panel: two government ministers, two MKs (one of whom is from the opposition), and three Supreme Court judges.

There are in total 44 members of the IBA’s National Council, including 28 members elected directly in Tuesday’s elections, along with 12 representatives from the six IBA districts, and four other statutory members, one of whom is the IBA chairman.

The two candidates for the positions on the Judicial Selection Committee who receive the highest number of votes in a separate vote by the IBA National Council following Tuesday’s election will be the ones appointed to the panel.

The Judicial Selection Committee during the 34th government of Israel convenes, with then Justice Minister Ayelet Shaked (center), Supreme Court President Miriam Naor, Finance Minister Moshe Kahlon and other members of the committee, February 22, 2017. (Yonatan Sindel/Flash 90)

Since no slate is expected to dominate the council, it is likely that political deals within the council will be made as part of the selection process.

Fateful results

Now that Levin’s planned overhaul of the Judicial Selection Committee has been frozen by Prime Minister Benjamin Netanyahu, and possibly permanently buried, the justice minister’s efforts to remake the Israeli judiciary might hang on the outcome of the IBA elections.

Should the elections result in a situation where two representatives aligned with his ideology are elected, that would give the government five representatives on the Judicial Selection Committee.

That is already enough to appoint judges to the magistrate and district courts, for which a majority of five members on the committee is required.

But since Levin has indicated he will seek to appoint a new Supreme Court president after current president Esther Hayut retires in October, the justice minister could conceivably assert even greater influence over the committee.

Although currently the Supreme Court president is, by custom, selected automatically according to seniority on the court, the law allows for the Judicial Selection Committee to appoint the president with a majority of just five.

Amit Becher, the interim head of the Israel Bar Association and candidate for the organization’s chairmanship, speaks at a protest against the government’s judicial overhaul plans, in Tel Aviv on June 17, 2023. (Avshalom Sassoni/Flash90)

Should pro-government IBA representatives be selected to the committee, Levin could then chose the new Supreme Court president, who then has the right to select the two other Supreme Court justices who sit on the Judicial Selection Committee.

Levin could therefore conceivably have as many as eight members of the committee allied with his worldview, enough to appoint new Supreme Court justices — which requires a majority of seven on the panel.

Having said that, although there are at least four conservative justices on the Supreme Court at present, it is not certain that any are inclined to support Levin’s radical agenda against the judiciary.

Although it is the National Council that selects the Judicial Selection Committee representatives, the slates headed by the strongest candidates for the chairmanship of the IBA are often well represented on the council, giving them strong influence over who is chosen to join the judicial appointments panel.

The key candidates

The two strongest candidates for the chairmanship of the IBA are Amit Becher, the interim head of the organization and head of the Hope for the IBA slate, and former IBA chairman Efi Nave, who is head of the One IBA slate.

Becher has strongly aligned himself with the protest movement against the government’s judicial overhaul program, which he described in a speech on Saturday night at the main protest rally in Tel Aviv as “an attempt to crush the independence of the judiciary” along with democracy.

He added in his speech that he would “never allow” the government to control the Judicial Selection Committee and select “political judges.”

Nave, on the other hand, has expressed support for legal reform, although he has said that he opposes “large portions” of the radical proposals made by Levin at the outset of his judicial overhaul crusade.

Then chairman of the Israel Bar Association and current candidate for the position Efi Nave speaks at the International Jurists conference in Jerusalem, February 5, 2018. (Yonatan Sindel/Flash90)

Regardless, Nave is backed by senior coalition figures and government allies and is seen as likely to cooperate with Levin, as he did with previous justice minister Ayelet Shaked when he served as IBA chairman from 2015 to 2019. During that time, Shaked appointed several conservative justices to the Supreme Court.

Nave also has a highly problematic personal history. In 2022 he was convicted of border fraud for smuggling his partner through passport control at Ben Gurion Airport in 2018 in order to avoid entanglements in the divorce proceedings he was involved in with his wife at the time.

And in 2019, Nave was again arrested on suspicion of advancing the judicial appointments of women in return for sexual favors. The State Attorney’s Office eventually declined to prosecute Nave, since key evidence against him was obtained by illegally hacking his phone and was likely to be thrown out by the court.

Former Israel Bar Association chairman Efi Nave attends a hearing at the Rishon Lezion Magistrate’s Court, November 8, 2022. (Avshalom Sassoni/Flash90)

Two other prominent candidates are also running in the election for chairman: Doron Barzilai, also a former IBA chairman, and Arkady Eligulashvili.

Coalition and opposition involvement

According to a report by Channel 13 news, the coalition has exerted political pressure against Eligulashvilli to convince him to drop out of the race in order to boost Nave’s chances of success.

Eligulashvili himself said he has received numerous offers in exchange for dropping out, including becoming one of the IBA representatives on the Judicial Selection Committee or deputy IBA chair, but has rejected such proposals.

Prominent Religious Zionism MK Simcha Rothman, another architect of the government’s judicial overhaul program and an attorney himself, reportedly formed an operations team to increase voter turnout among right-wing members of the IBA.

The Israel Hayom daily reported that Rothman’s political adviser wrote in a WhatsApp group that the goal of the operation’s team was to identify right-wing attorneys and convince them to go and vote.

MK Simcha Rotman together with Justice Minister Yariv Levin seen during a discussion and a vote in the Knesset plenum, March 22, 2023. (Yonatan Sindel/Flash90)

In addition, Knesset Speaker Amir Ohana from the Likud party has sought to advance the chances of his parliamentary adviser, Aviv Sabag, to get elected to the IBA National Council.

Sabag heads the New Generation slate, supports the government’s judicial overhaul program, and has backed Nave for the IBA chairmanship.

According to a report by the Kan public broadcaster, Shas leader MK Aryeh Deri is also backing Nave’s candidacy. And the Legal Zionist Initiative slate, which  represents religious-Zionist members of the IBA and is aligned with the Religious Zionism party, is strongly backing Nave.

At the same time, opposition parties and MKs have organized for Becher.

Last week, Labor MK Efrat Rayten, who is also an attorney, wrote to party activists and told them she was backing Becher for IBA chairman.

Labor MK Efrat Rayten attends a faction meeting at the Knesset, May 29, 2023. (Yonatan Sindel/Flash90)

Protest groups against the government’s judicial overhaul program such as Brothers in Arms and the association of campaign groups that have been organizing the protests in Tel Aviv and around the country have also been rallying around Becher.

In order to be elected chairman, a candidate needs to secure at least 40 percent of the vote. Failing that, the two leading candidates would head to a second round runoff election in several weeks.

Yadin Elam, a candidate for the left-leaning Fitting Purpose’s national slate, notes that the outcome of the elections and their impact on the Judicial Selection Committee depends on numerous factors.

He pointed out that Becher could receive broader support than Nave for the chairmanship, but that those who vote Becher for chairman could vote for other slates for the National Council that will be less amenable to Becher’s strong political activism against the government.

That might make it easier for the coalition to assert influence within the National Council and secure more favorable representatives on the Judicial Selection Committee.

Additionally, the elections of the district chairmanships are also relevant, since the chair of each district gets an automatic spot on the National Council.

Turnout, too, will be critical. Whereas in previous elections the turnout has been under thirty percent, this year the turnout is expected to be significantly higher because of the weighty political implications of the election.

Elam noted that one of the central questions of the election is whether Nave’s indiscretions — including his criminal conviction — will work against him.