What will Bennett-Lapid unity gov’t do to the judicial branch? - analysis

Who will control the c’tee appointing judges?

By YONAH JEREMY BOB
YESH ATID leader Yair Lapid and Yamina leader Naftali Bennett arrive at the President’s Residence this week (composite photo). (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
YESH ATID leader Yair Lapid and Yamina leader Naftali Bennett arrive at the President’s Residence this week (composite photo).
(photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
If Yesh Atid’s Yair Lapid and Yamina’s Naftali Bennett form a new government, what will the impact be on the judicial branch?
Two gaping holes already need to be filled following the retirement of justices Hanan Melcer and Menachem Mazuz last month.
In 2022, Neal Hendel and George Karra retire, and by October 2023, Supreme Court President Esther Hayut and Justice Anat Baron also will have retired.
The coming government will replace more than one-third of the Supreme Court if it lasts until October 2023, a month after Lapid is due to take over from Bennett. This was an all important issue for Prime Minister (for now) Benjamin Netanyahu.
Given that Netanyahu’s trial and appeal could take years, he had hoped to appoint friendly justices who would likely take up their seats in time to hear an appeal of the trial court’s verdict.
For the prime minister, how these future justices vote could be the difference between jail and freedom and could also decisively impact his political career.
So if the Bennett-Lapid government is formed, Netanyahu will lose the opportunity to impact that aspect of his legal problems.
But there are other momentous issues at stake.
Only days ago, the Supreme Court threatened a basic-law veto regarding the budget by a 6-3 vote. Two of the three who voted against were recent more conservative appointees of Yamina’s Ayelet Shaked.
There have been other close decisions on major policy issues that were 5-4, and flipping one or two justices from progressive to conservative could tip the balance of power on the court.
This is especially true because of the six justices retired or retiring, two are strong progressives (Mazuz and Baron), three are moderate progressives (Hayut, Melcer and Karra) ,and only one is a moderate conservative (Hendel.)
That means even if the next Judicial Selection Committee picks three conservatives and three progressives, the conservatives will have gained two seats on the court – potentially enough to alter key votes.
Though the Judicial Selection Committee will still likely have a majority of progressives (three Supreme Court justices, two Israel Bar Association lawyers and likely Labor’s Merav Michaeli), pushing Netanyahu out will not remove the powerful minority of conservatives on the committee.
The potential coalition deal would install Gideon Sa’ar as justice minister and as committee chair. either Yamina’s Idit Silman or Nir Orbach, being a member of the committee, plus a right-wing opposition member, likely from the Likud.
A conservative in the chair is a big difference from having the stridently progressive Avi Nissenkorn at the helm and Sa’ar is as ardently conservative ideologically as he is personally anti-Netanyahu. He wants to restructure aspects of the judiciary and the Attorney-General’s Office to distance the legal establishment from national-security, human-rights, West Bank and African-migrant issues.
Given that the committee mostly operates by near consensus, the chair and two other votes out of the committee’s nine members being right-wing conservatives is enough to force a compromise.
What is more, Bennett will be prime minister and has obtained a guarantee of equal power for his right-wing branch of the new government on key issues, of which judges is definitely one.
So even if Netanyahu does not get his loyalists onto the committee, and the right-wing does not have a majority on the committee, they may still achieve a new tipping point. This could occur simply because the ratio of progressives to conservatives retiring is five to one.
This drama will play out in the coming months with the fate of the judicial branch in the balance.