The Gun on the Table by William Mehlman

The elections to Israel’s Supreme Court of Jerusalem District Court of Judge (and rabbi) David Mintz, resident of Dolev, deep in the heart of Samaria, and Haifa District Court Judge and self-professed “religious Zionist” Yael Willner, offer dramatic evidence of what Justice Minister Ayelet Shaked has wrought in her penetration of the most guarded bastion of post-Zionist theocracy in the Jewish state. Indeed, what might have been considered a “breakthrough” on its own just a short time past, the election of  center-right Haifa District Court President Yosef Elron to the third of the four High Court posts being vacated under mandatory retirement, was being regarded as a “thrown-in” favor to Finance Minister Moshe Kahlon, his champion on the nine-member judicial nominating committee. No. 4, Christian Arab George Kara, a Tel Aviv district court judge, rounds out the quartet that will be replacing  High Court President Miriam Naor, Elyakim Rubinstein, Salam Joubran and Zvi Zilbertal, solid liberals to a robe.

The political charge set off by Shaked’s breach of the unbreachable had a “Bastille Day” quality unseen in Israel since Menachem Begin’s 1977 termination of 30 years of  socialist hegemony. Las Vegas casino magnate Sheldon Adelson’s tabloid Yisrael Hayom, the country’s most widely read Hebrew daily, called it nothing short of a “revolution,” while “Israeli Right Wins Historic Fight over Supreme Court Justices” topped the lead story in the Jerusalem Post. “Shaked Has Her Day in Court,” declared The Times of Israel even as a contrapuntive Yediot Aharonot headlined its story “Now You Don’t Need a D9,” referencing newly anointed Supremo David Mintz’s Dolev neighbor’s call for a bulldozer to level the High Court over its decisions to raze “illegally-built” Jewish communities in Judea and Samaria.

“The Legal Forum for the Land of Israel” unsurprisingly hailed the Court’s new profile as a “great victory,” echoing Agriculture Minister Uri Ariel’s (Bayit Yehudi) view that the face-lift “will better reflect Israeli society and the public’s trust in the legal system.” What is likely to be the justice minister’s most cherished kudo, however, came from out of deepest left field in Meretz Party chairwoman Zehava Golan’s prediction that “Shaked will be responsible for this shameful situation for years to come.”

More low-keyed than her admirers but ready to tell it like it is to her detractors, the lady in question portrayed her successful challenge of a quarter century of judicial inbreeding as an “historic day,” in an interview with Army radio. “The flagship boat of our judicial system changed direction tonight, and yes, we can put it on the table and say openly that it will strengthen the trust of the Right in the Supreme Court.” Putting it “on the table,” something nobody  has successfully dared in the 26 years since Supreme Court Chief Justice Aharon Barak declared the High Court the unchallengeable arbiter of “justiciability” in an Israeli  universe in which all things had become “justiciable,” informs the impact of Shaked’s victory. What she “put on the table,” in Miriam Naor’s own words was a “gun” – the threat to legislatively undo the veto power granted the three sitting justices on the nine-member nominating committee over the selection of new justices. The remaining six include a four-member Knesset contingent and two representatives of the Israel Bar Association. The election of new justices requires a 7 to 2 majority, thereby affording the three sitting justices, voting as a bloc, an automatic veto of any nominee of whom they disapprove.

Shaked’s threat to push a bill in the Knesset allowing the future election of Supreme Court nominees by a simple majority – the “gun on the table” – triggered a Naor breakoff in negotiations in November. She was back at the table in January “convinced,” as the Jerusalem Post’s Yonah Jeremy Bob put it, “that Shaked was ready to follow through on the threat and that the Court no longer had a real champion in the government coalition that would fight for it.”  So Naor cut a deal, at least theoretically preserving the Court’s veto prerogative at the cost of standing aside as conservative justices were added to the mix.

All of which leaves an intriguing question hanging out there. Did the justice minister settle for a one-shot victory over the arbiter of all matters in Israel justiciable when she might have sealed a permanent historic change in the governance of the Jewish state by granting the liberal judicial establishment its final veto and forging ahead with her bill making the future election of qualified  Supreme Court nominees  subject to a simple majority vote of the nominating  committee? Simply stated, why wasn’t “the gun on the table” fired?  If in the end Shaked deemed the odds against getting her bill through the Knesset too formidable to overcome, then she probably did the right thing in cementing a limited victory. Justice Naor, her adversary, obviously thought otherwise. In the interest of  preserving the judicial bloc’s veto power for another day, a more accommodating government, she opted to put it in storage. Indeed, Justice Naor’s delicately scripted expression of congratulations to the nominating committee in having “selected four justices who are skilled professionals and have extensive and rich experience  in the court system,” resonated with the impression that the  loss of a skirmish did not mean the loss of a war.

That feeling was markedly evident in the editorial and news page treatments of the Supreme Court story by Ha’aretz. Though as The Times of Israel’s Adiv Sterman playfully notes, Israel’s “newspaper of record,” in emulation of its New York model, “sometimes takes care to avoid mixing reports and opinions,” this wasn’t one of those times. Amidst dire warnings that Shaked’s coup would “change the face” of Israeli jurisprudence, Editor-in Chief Aluf Ben saw in the justice minister’s tactics a calculated move to advance a right wing agenda. “According to the right wing and the justice ministry, he wrote, “the judges must back the government and not involve themselves in its [the Court’s] decisions. The justices are expected to perpetuate the Occupation, while expanding the Settlements without granting citizenship to the Palestinians.”

Over on the news side with a slightly more measured view of the High Court upheaval, Sharon Pulwer under the headline “Too Soon to Say How Conservative Israel’s New High Court Bench Will Be,” offers Hebrew University Professor Yuval Shinai’s observation that the Court had already begun veering more conservative over the past few years. He characterized its somewhat altered composition as “continued movement in an already existing direction, so it’s not clear that this was a revolution.”

Asserting that “it’s still too early to know,” Shinai’s Hebrew University colleague, Professor Barak Medina, an authority on constitutional and administrative law, advances the possibility that Shaked might ultimately be disappointed with the new Supreme Court crop. “I don’t think any of them is clearly against human rights or judicial activism,” he avers. “These are people whose records don’t include intensive involvement in the issues.”  Another academician opined that the Court’s new makeup – now risen to six conservatives vs nine liberals – might even alter its image as a “collection of Ashkenazi, anti-Settlement elitists divorced from the Israeli mainstream…The question is whether it will undermine the basic objective of the Court, which is to defend human rights from the tyranny of the majority and the rule of law.”

However noble the defense of human rights from the alleged “tyranny of the majority” might be deemed, it is hardly the overriding image of the reshuffled High Court Ayelet Shaked intends to project. To the fear enunciated by the Zionist Union party’s Tsipi Livni, her predecessor as justice minister, of the Court becoming “cowed by populism,” Shaked looks to the reconstituted judicial body as “humane, judicious and above all serving as a mirror for the Israeli people.” Let’s just say, she adds, “that in the Tsipi Livni era I don’t recall that any conservative judges were selected.  That’s how it works.”  How “it works” after the Shaked shakeup compels us to stay tuned.


William Mehlman represents AFSI in Israel.

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