Israeli right wins battle in war over Supreme Court

Justice Minister Ayelet Shaked has made progress in her mission to make the court more conservative

February 23, 2017 17:04

The appointment of four new justices to Israel's Supreme Court over the space of six months was always going to be a major event in Israel’s legal stratosphere.

For months there has been a tug-of-war between Justice Minister Ayelet Shaked and Supreme Court President Miriam Naor over the identity of the new justices.

Minister Shaked has made no attempt to hide her ambition to shift the court rightwards, towards a more conservative and less interventionist position; while President Naor, who is one of the four justices reaching the retirement age of 70 this year, fought to preserve the court's independence.

The joint decision on Wednesday by the Judicial Appointments Committee has largely been seen as a victory for Ms Shaked, who managed to put on the bench three relatively conservative justices, favoured by the politicians.

But was not a total defeat for the Supreme Court stalwarts, either.

Much of the attention has been given to the communal identity of the new justices – especially to the fact that both David Mintz and Yael Willner, are religious, and that Mr Mintz lives on a settlement.

But that does not necessarily mean their rulings can be predicted – especially not those of Justice Mintz, who clerked for the former Supreme Court President Dorit Beinisch and is seen as an independent who is close in her thinking to many of the sitting justices.

George Karra, who is the only candidate to be backed from the start by the three justices on the appointments committee, will fill the "Arab seat" on the bench. He is also seen as an unpredictable voice. As a district judge, he gave the former President Moshe Katzav a stiff prison sentence for rape. He is expected to fit in with the prevailing atmosphere in the court.

The arch-conservative in the group is expected to be Yosef Elron, a veteran Haifa judge who is opposed to judicial activism (when rulings tend to be based on personal or political considerations rather than existing law).

But while Ms Shaked got two of her favoured candidates, Mr Mintz and Mr Elron, she was forced to compromise on Justices Willner and Karra. President Naor, while only getting one of her favourites in, can at least be satisfied that the new justices are experienced judges, not law professors or lawyers from the private sector, the kind of candidates that the appointments committee used to fight tooth and nail to keep out.

In the past, many justices originally seen as right wing have fallen into line on reaching the bench. The presidency, which is decided by seniority, will go later this year to Justice Esther Hayut, a staunch interventionist who will have six years until her retirement and can still rely on a like-minded majority among her colleagues, most of whom still have a good few years left until retirement.

As the president determines the identity of the justices who sit on each petition (very few hearings are held in front of the entire 15-justice bench), it can be expected that the court will continue to hand down relatively liberal rulings and, when it sees fit, strike down laws voted on by the Knesset. Few in the legal community doubt that will be the case in a few weeks when the court rules on the settlement "Regularisation Bill", which even the government's attorney-general has refused to defend in court.

Assuming the right wing remains in power, this will have been just another battle in the long war over the Supreme Court's identity and philosophy. The next battle will come when another law is deemed unconstitutional by the justices and then again next year when the last seat on the court expected to fall vacant this decade has to be filled. Neither side is going to give in without a fight.


February 23, 2017 17:04

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