Will Nave replacement end Shaked’s judicial revolution? - analysis

A strange combination of circumstances gave Shaked the loyalty of even an opposition MK. But the key was the lawyer’s association’s two members.

Ayelet Shaked  (photo credit: MARC ISRAEL SELLEM)
Ayelet Shaked
(photo credit: MARC ISRAEL SELLEM)
The person who replaces Efi Nave as permanent president of the Israel Bar Association in next week’s election may determine the fate of Ayelet Shaked, who stepped down last month after four years as justice minister.
At first glance, Nave’s forced resignation due to multiple scandals and his being replaced by either Avi Himi or Zion Amir is a big story for lawyers, but is limited to that arena.
However, that would only be true for those who do not realize that Nave, more than any other individual in the country, was responsible for Shaked’s successful judicial revolution.
Shaked and the Right have said this revolution will be decisive in how the Supreme Court will rule on fateful issues, such as Prime Minister Benjamin Netanyahu’s public corruption cases, settlements, African migrants and balancing Judaism and democracy.
Acting Justice Minister Amir Ohana made it clear in his first speech on Monday that he would seek to continue or even broaden the conservative ideology revolution.
This revolution could be in jeopardy when Himi or Amir take power, allowing them to determine two of the nine individuals who select the country’s judges.
True, Shaked initiated the revolution. Yet absent Nave’s assistance, she likely would have been as stuck as Daniel Friedman and other justice ministers before her who tried to revolutionize the system and failed.
Nave had been key because as Bar Association president, he was able to tilt the balance of the nine-member judicial selection committee toward Shaked, in exchange for her support on a variety of other issues important to lawyers.
Until Nave took power, the bar association’s two members on the committee usually voted with the three Supreme Court justices on the committee, forming a decisive five-member majority bloc.
The committee’s remaining members are the justice minister, another government minister, a government non-minister MK, and an opposition MK.
When Nave and Shaked sealed their deal, she gained a five-member majority bloc, since the two other government members tend to vote with the justice minister.
A strange combination of circumstances gave Shaked the loyalty of even an opposition MK. But the key was the Bar Association’s two members.
Shaked utilized that majority to appoint around 40% of the Supreme Court’s current justices, and for the first time in decades, a slight majority of newly appointed justices were conservative.
But Himi and Amir seem to have different ideas.
Himi told The Jerusalem Post that he strongly opposes any reform to give the Knesset veto power over the Supreme Court, veto power which is perceived as weakening the independence of the judicial branch.
He would clearly oppose Shaked’s circumvention bill, which Ohana may adopt, to give the Knesset a veto over the Supreme Court with a mere 61 Knesset vote majority.
The Supreme Court itself and nearly all top government legal officials have also opposed this on the grounds that a 61-vote majority is not difficult to muster if a government invokes coalition discipline.
Rather, Himi said that at most he might support a circumvention bill that required 70 Knesset MKs to veto a Supreme Court ruling.
Some justices and Attorney-General Avichai Mandelblit have found this idea less objectionable, as it would typically require some support from opposition MKs – an indication of wide consensus on an issue.
Zion Amir has gotten less specific on the issue, but has made statements indicating he may also support the Supreme Court’s independence more than Nave did in conflicts with the Knesset or Shaked.
On the other hand, Amir is on-record as having strong right-wing views on national security issues, such that he might side with the political Right in battles with the court over striking the right balance between national security and civil liberties.
Himi also appears to oppose Ohana’s ideas about abandoning the current judicial selection committee model in favor of greater Knesset and political control over the appointments process.
He told the Post that lawyers from the Bar Association and Supreme Court justices provide a critical counterbalance to Ohana’s suggestion of a purely politician-controlled process.
Amir also opposes changes to the current judicial selection committee.
If the next government serves a full term, the judicial selection committee could appoint as many as five new justices.
Judicial retirements scheduled are: Hanan Melcer in 2021, Neal Hendel and George Kara in 2022 and Esther Hayut and Anat Baron in October of 2023.
Hayut’s stepping down in 2023 could allow the next committee to appoint the next chief justice.
All of this means that the Shaked-Nave legacy could be endangered if Himi or Amir leads the Bar Association to swing back toward an alliance with the three Supreme Court judges on the judicial selection committee, and toward the judicial branch in general.
The next government could also try to make far-reaching changes without Bar Association support, but otherwise conservatives may cry foul after a long rally, while liberals may have a sigh of relief.