Shaked, Hayut battle over future of High Court

The Judicial Selection Committee will fill two spots on Thursday.

February 21, 2018 04:58
4 minute read.
Israel's High Court of Justice

Israel's High Court of Justice. (photo credit: ISRAELTOURISM / WIKIMEDIA COMMONS)

Will Justice Minister Ayelet Shaked finally triumph Thursday in achieving her goal of turning Israel’s activist Supreme Court into a more conservative one?

Activists are more likely to intervene to veto a Knesset law or state policy, whereas conservatives are more likely to defer and let them stand.

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Two spots are open – those of Justices Uri Shoham and Yoram Danziger – and Shaked has vowed to fill one of the spots with a hand-picked conservative.

There are still serious voices that oppose the overly simplistic labeling of justices as activist or conservative, but those labels and campaigning for conservative justices is exactly what Shaked has done to impact the court’s direction.

Four candidates being discussed as leading contenders are: Prof. Alex Stein and Jerusalem District Court Judge Ram Winograd, favored by Shaked; and Lod District Court
Judge Ofer Grosskopf and Tel Aviv District Court Judge Shaul Shohet, favored by the Supreme Court.

The nine-member Judicial Selection Committee is chaired by Shaked and includes a mix of politicians, Israel Bar Association representatives and Supreme Court justices led by President Esther Hayut.

Prior to Shaked taking office in 2015, the three Supreme Court representatives wielded power beyond their numbers and could block any candidate.

But Shaked maneuvered to cut deals with the Bar Association and got Yisrael Beytenu MK Robert Ilatov appointed as the opposition MK to the panel – despite his party being sympathetic to her view of the court and even later joining the coalition.

This has given Shaked a majority on the panel and empowered her to dictate deals on justices from a stronger position than her predecessors.

Like the round of four new appointments that occurred in February 2017, this round is highly significant and can determine the ideological balance and direction of the court for years to come.

While there is no universally agreed upon categorization of justices, prior to last year’s round, there were only two solidly conservative justices out of 14, and two to three moderate conservatives. This gave the liberal wing a decisive advantage.

However, three of the four justices who have stepped down since then were viewed as either very or moderately liberal.

They were replaced with two conservatives – Yosef Elron and David Mintz, and one moderate – Yael Willner. This has already shifted the balance.

This occurred under the leadership of the previous president, Miriam Naor, who was not considered the best negotiator. Some said that current President Esther Hayut would be better equipped to face off against Shaked in justice-appointment wheeling and dealing if need be.

But with Shoham and Danziger both being viewed as very or moderately liberal, replacing one of them with a conservative, as Shaked has vowed, would elevate the number of conservatives to five. Along with the moderates, this could start to decisively turn votes on some major issues in the direction Shaked hopes for – on some issues giving the conservatives an eight-to-six majority.

WHAT OF THE FRONT-RUNNERS for the open seats? Stein is the candidate who has drawn the most headlines. From the perspective of conservatives, getting him onto the court would be a far bigger coup than getting “just” another conservative appointed.

Stein is highly published and considered a leading academic within the US legal community, making him respected on all sides of the debate. But the conservative camp believes he could be their answer to activist former Supreme Court president Aharon Barak.

One of the reasons they say that the court still has activist leanings over 10 years after Barak retired, is that his towering and unmatched legal acumen led to the constructing of a series of precedents which bound his successors.

The conservatives see Stein as his equal – someone who could draft dazzling legal opinions to challenge the underpinnings of the 1990s Barak revolution which empowered the court in an unprecedented way.

For that same reason, the Supreme Court justices might be more likely to compromise and accept other conservatives instead of Stein. There are also objections to the fact that he has lived in the US for an extended period of time.

This puts Shaked, as a banner carrier for the staunchly Zionist Bayit Yehudi party, in a bit of a fix.

But her side has explained that Stein had unique personal family and medical circumstances that have kept him in the US longer than originally planned.

Winograd would be a strong second-choice for Shaked. He is a highly respected justice, is religious and lives in the Gush bloc.

Hayut’s leading pick may be Grosskopf, considered a leading contender for having issued major and complex decisions impacting the whole Israeli scene, though Shohet is also respected, and with his Sephardi background, would increase the court’s diversity.

In addition to all of this, there are other possible scenarios, with 24 candidates still eligible. The only Muslim candidate, Judge Khaled Kabuv, dropped out on Sunday, with groups criticizing the system for not encouraging him.

And if Hayut plays hardball, she could refuse to agree to a deal and leave the seats open, hoping for early elections.

Shaked could also play hardball and get Knesset support to alter the laws to allow appointing justices without the Supreme Court’s approval. Currently, even in the minority, the justices can block appointments with their three votes since appointments require support from seven out of nine panelists. She could do the same with increasing the number of justices so that more conservatives could be appointed. But such moves would likely prove to be too controversial – even for the aggressive Shaked.

Either way, Thursday will prove to be one of the most significant watershed moments for determining the direction of Israel’s judiciary.

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