Editorial

Respect the Seniority Principle at the Supreme Court

Justice Minister Ayelet Shaked is trying to dictate who future justices will be, but the current system prevents harmful infighting at the court

(From left) Supreme Court President Miriam Naor, Justice Minister Ayelet Shaked and President Reuven Rivlin at the judges' swearing-in ceremony, Apr. 13, 2016, in Jerusalem. In the picture, Shaked is turned toward Naor as if to speak to her privately, while Rivlin looks straight into the camera.
Supreme Court President Miriam Naor, Justice Minister Ayelet Shaked and President Reuven Rivlin at a judges' swearing-in ceremony in Jerusalem, April 13, 2016, in Jerusalem. Olivier Fitoussi

The seniority principle under which the most veteran Supreme Court justice takes over when the court’s president retires was never enshrined in law. Still, even though this was only a custom, it was always meticulously followed by the committee selecting judges and Supreme Court justices.

Contrarian justice ministers such as Haim Ramon, Daniel Friedmann and the current one, Ayelet Shaked, have occasionally tried to undermine this custom, but they haven’t managed to impose changes. Either way, there have never been justices agreeing to vie for the court presidency against someone who by seniority was the intended successor.

The current complement of the committee for selecting judges also has a majority seeking to maintain the principle. This was made clear after Finance Minister Moshe Kahlon, a committee member, and the heads of the bar association supported the appointment of Justice Esther Hayut as the next president after the current president, Miriam Naor, retires in October.

Shaked knows she has lost the current battle over changing the seniority principle, but this hasn’t stopped her from trying to twist the arms of the justices in an attempt to dictate, in an unseemly manner, the identity of the judges who will replace two justices who retire in 2018, Yoram Danziger and Uri Shoham.

The sharp letter sent by Naor to Shaked, which in an unusual step was made public, shows the extent to which the minister is unwilling to learn from the experience of past justices and recognize the seniority system's many advantages. This principle creates certainty regarding who the next court president will be, obviating the possibility that justices will compete for the role.

Furthermore, the nomination of judges to the Supreme Court ends their race to the top and leaves them free to decide cases free of external pressure. This system rewards people reaching the Supreme Court at a young age, and these are usually the brightest judges.

What new reality is the minister trying to create? If the seniority principle is abrogated, and assuming there are judges who agree to vie for the court presidency, what tools does Shaked propose to help committee members choose? Does she plan to read candidates’ rulings and decide who’s a better judge? Or does she intend to demand fealty to the government as a condition for getting the job?

The Supreme Court isn’t a foe. The justice minister is supposed to strive for its success, not undermine it. Shaked should listen to Israel’s top judge, who is explicitly telling her that the delay in appointing Esther Hayut court president and Hanan Melcer her deputy is harming the justice system.