A judicial revolution - Shaked's answer to claims of fascism

Shaked sprays the perfume in the air, quipping: “To me, it smells like democracy.”

Ayelet Shaked at a meeting, January 17th, 2019 (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
Ayelet Shaked at a meeting, January 17th, 2019
The New Right Party led by Ayelet Shaked and Naftali Bennett began airing a campaign commercial for a new perfume called “Fascism” this week, satirizing left-wing fears that it seeks to weaken Israel’s judiciary. “A judicial revolution,” the narrator whispers. “Judicial appointments… separation of powers… reining in the High Court.”
Shaked sprays the perfume in the air, quipping: “To me, it smells like democracy.”
After the High Court of Justice disqualified Otzma Yehudit’s far-right candidate Michael Ben-Ari on Sunday while allowing all the candidates for the primarily Arab parties to run in the April 9 elections, Shaked – the justice minister – pledged “a legal upheaval” in the next Knesset.
One of her main ideas is to abolish the Judicial Selection Committee and adopt the American system for choosing Supreme Court justices. While we know this is politicking before the election, it is a serious issue that should be examined.
Speaking to a National Student Union conference on Monday, Shaked vowed she would complete “the 1990s’ High Court of Justice Revolution” and dismantle the Supreme Court’s judicial oversight over parliament while giving the Knesset the full power to appoint judges.
Shaked claimed that after the Left had lost its political power with the Likud’s victory over Labor in 1977, it sought to turn the 15-judge Supreme Court into a “super-government.” She said that the Supreme Court, which sits as the High Court of Justice when it considers petitions, has since become Israel’s “most powerful political actor.”
Based on her party’s new election campaign promising that “Shaked will defeat Bagatz” (Hebrew acronym for the High Court of Justice), she pledged to pass a comprehensive plan for judicial reform within the first 100 days of the new coalition.
Under the plan, which resembles the US system, “the justice minister will present a candidate for approval to the government and the Knesset.” A simple majority vote in parliament (61 of 120 MKs) would therefore suffice to appoint a new judge.
In a further move to give lawmakers power over justices, Shaked wants judges to “be able to face a public hearing in the Knesset.”
The Judicial Selection Committee, it should be noted, is currently made up of three Supreme Court justices - the justice minister and another minister - a member of Knesset from the coalition and another from the opposition as well as two representatives of the Bar Association. Despite the appointments of three conservative judges out of four to the Supreme Court in 2017, Shaked still considers the bench too liberal and interventionist. She might have a point.
We have recently witnessed that the US system of choosing judges to the Supreme Court may be harsh, but is also transparent and makes sense. The Israeli system lacks transparency and it doesn’t really make sense that judges are appointed mostly by other judges and members of the legal community.
The Israeli Supreme Court has upheld a tradition of judicial activism, especially under Aharon Barak, who served as chief justice from 1995 to 2006. “If we don’t defend democracy,” Barak once said, “democracy won’t defend us.”
Proponents of a robust Supreme Court say it serves as a balance to the “tyranny of the majority” against the rights of minorities not represented in the political system. But the disqualification of Ben-Ari, apparently over racist comments he made against Arabs, coupled with the approval of Arab politicians who have voiced support for Israel’s enemies, is perceived by some as unjust.
The unprecedented ruling prompted Shaked to lash out, calling it “a massive and mistaken intervention” that goes to the heart of Israeli democracy. “It’s the last straw for the High Court’s justices, who have turned themselves into political actors,” she said.
As Menachem Begin once said, strongly advocating for the rule of law: “There are judges in Jerusalem.” But who they are appointed by is a moot point. If Shaked succeeds, the Supreme Court could itself be barred from involvement in future elections. Its fate, as the perfume ad implies, could very well lie with voters in the upcoming ballot.