Committee to meet to decide direction of Supreme Court, pick 2 justices

It is unclear if Justice Minister Ayelet Shaked and Justice Esther Hayut have reached a deal.

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February 21, 2018 19:36
3 minute read.
Committee to meet to decide direction of Supreme Court, pick 2 justices

Ayelet Shaked and Esther Hayut (Marc Israel Sellem, Reuters). (photo credit: REUTERS + MARC ISRAEL SELLEM)

 
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The powerful Judicial Selection Committee meets on Thursday with the future of the Supreme Court at stake, as the panel is due to appoint two new justices.

The selection of the two, only one year after four justices were appointed, could determine the path of the nation’s highest court on fateful issues from the settlements to migrants, handling terrorists’ remains and natural gas, for decades to come.

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Despite the anticipation, Thursday’s meeting may end with no appointments, as the three blocks that make up the committee may be unable to agree on two candidates.

If there is no agreement, Justice Minister Ayelet Shaked may move forward on various threats to pass legislation increasing the number of justices above the current 14, and another law to enable the committee to select justices without any support from the block of current Supreme Court justices on the nine-member panel.

The three blocks on the committee are the justices: Supreme Court President Esther Hayut, Deputy President Hanan Melcer and Yoram Danziger; the political block of Shaked, Finance Minister Moshe Kahlon, MK Nurit Koren (Likud) and MK Robert Ilatov (Yisrael Beytenu); and the Israel Bar Association block of president Efi Naveh and Elana Sackar.

Generally, the debate between Shaked and Hayut is discussed in terms of Hayut’s bloc preferring justices who are more activist, i.e. more likely to intervene to veto a Knesset law or state policy they view as illegal, and Shaked preferring conservatives, who are more likely to defer to the legislature.

Shaked has vowed to fill one of the two spots made available by the imminent retirements of Justices Uri Shoham and Danziger with a hand-picked conservative.



There are still serious voices that oppose labeling justices as activist or conservative as oversimplifying, but Shaked has campaigned for conservative justices.

Four candidates being discussed as leading contenders out of the original 25 candidates 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.

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

But Shaked cut deals with the Bar Association and got Ilatov appointed as the “opposition” MK to the panel, despite his party being sympathetic to Shaked’s view of the court and even later joining the coalition.

This has given Shaked a majority on the panel and given her greater leverage.

Like the round of four appointments in February 2017, this round puts the ideological balance and direction of the court in play.

Before February 2017, the liberal wing had a decisive advantage.

However, three of the four justices who stepped down since February 2017 were viewed as either very or moderately liberal.

They were replaced with two conservatives, Yosef Elron and David Mintz, and one moderate Yael Willner, shifting the balance.

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 turn some major votes in Shaked’s direction, on some issues giving the conservatives an eight to six majority.

Stein is the candidate who has drawn the most headlines.

He has been widely published in the US and respected on all sides of the debate. But the conservative camp has said he could be the conservative answer to former Supreme Court president Aharon Barak. They have said Stein could draft dazzling legal opinions to challenge the underpinnings of Barak’s 1990s “Judicial Revolution” that empowered the court in an unprecedented way.

For that same reason, observers have said that the Supreme Court justices might be more likely to compromise on other conservatives as opposed to Stein. They have also objected to his living in the US for an extended period.

Shaked’s side has explained that Stein had unique personal family and medical circumstances that kept him in the US longer than planned.

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

Some believe Hayut’s first choice is Grosskopf, considered a leading contender having issued major and complex decisions affecting the whole Israeli market. Shohet is also respected by the justices, and with his Sephardi background, would increase the court’s diversity.

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