Deal to Elect Right-wing Favorite to Supreme Court May Be Unraveling, Officials Say

Agreement that would pave the way for Judge Noam Sohlberg's nomination would have also pushed forward aide of current Supreme Court President.

There is a growing sense that the arrangement which was to have paved the way for Jerusalem District Court Judge Noam Sohlberg to be selected to become a Supreme Court justice is unraveling, members of the Judicial Appointments Committee said on Saturday. The committee will be convening on Sunday evening faced with the task of selecting three new Supreme Court justices.

An understanding had been worked out over the past several months that Jerusalem District Court Judge Zvi Zylbertal, who is close to Supreme Court President Dorit Beinisch, would be appointed to the court along with Sohlberg, who is favored by some on the political right. The deal was thought to also pave the way for the appointment to the High Court of Justice of Tel Aviv District Court President Dvora Berliner.

Dorit Beinisch and Yaakov Neeman - Olivier Fitoussi - 07112011
Olivier Fitoussi

Now, however, it is expected that Beinisch, whose position as Supreme Court president is the equivalent of a chief justice, will scuttle the understanding and seek to expand the list of candidates under consideration. It is thought that candidates of Sephardi origin would be included in light of the retirement of the court's only Sephardi justice, Edmond Levy.

It is also possible that the judicial selection committee would make temporary appointments to the Supreme Court on Sunday evening in an effort to relieve the High Court's case load until permanent candidates are chosen. In such a case, it could be that Sohlberg would be given a temporary term on the Supreme Court but would be denied a permanent appointment.

The court has been short-staffed since the retirement of Levy and Justice Ayala Procaccia, and the absence of Justice Yoram Danziger, who is on leave due to allegations of improprieties involving the Bat Yam municipality. For his part, however, Justice Minister Yaakov Neeman opposes the appointment of temporary Supreme Court justices as a matter of principle. Such an appointment procedure would also undermine his bargaining posture in support of Sohlberg's permanent appointment to the court.

Members of the Judicial Appointments Committee agreed last week that the ball was in Beinisch's court. She has the power to foil the deal involving Sohlberg, Zylbertal and Berliner and could delay the process by reopening the candidate list. In recent weeks, pressure has been brought to bear on Beinisch from a number of directions, including retired justices and others in the judicial system. They have expressed concern over what they see as the danger the deal presents, due to the precedent that would be set over the political nature of the support that Sohlberg's candidacy has received.

In addition, last Thursday, 51 academics and intellectuals, including Israel Prize laureates, expressed concern to Beinisch over the "Sohlberg deal," as they called it. They said Beinisch should oppose the justice minister's efforts to advance legislation that would change the composition of the Judicial Appointments Committee, a move that is seen as leading to the appointment of Israel Bar Association representation on the panel that would be more receptive to Sohlberg's nomination. The group of 51 cautioned that these efforts would do damage to the judicial system, including the Supreme Court itself.

Recently, sources who have been in contact with members of the judicial selection panel have expressed the sense that Beinisch would have difficulty coming to terms with the arrangement through which Sohlberg would take a permanent seat in the High Court. First, they say, Beinisch would be concerned about being party to the nomination of Sohlberg, who is being touted by the right wing. Secondly, Beinisch will not want to be remembered for presiding at the end of her term over a Supreme Court on which there were no Sephardi justices serving. Finally, Beinisch would not want to be seen as having concocted a "deal" with Neeman precisely at a time at which Neeman is advocating bills that are seen as damaging the judicial system.

On the other hand, it should be noted that the current round of nominations to the High Court is Beinisch's last before her retirement in February. There is also uncertainty prevailing over the constellation of forces that would prevail on the Judicial Appointments Committee due to the pending legislation that would make the Bar Association chairman, Doron Barzilay, one of the two committee representatives. Beinisch may be thinking this is her last opportunity to appoint an associate to the High Court.

Reopening the list of candidates for the Supreme Court would delay the selection committee's work. The law provides for a 30-day waiting period after the submission of a candidate's name is made public, to allow members of the public to submit objections. Apparently under such circumstances, which would involve a new Beinisch "deal," the judicial selection committee would not convene before January of next year.

Right-wing members of the Judicial Appointments Committee have acknowledged the possibility that Beinisch would withhold support for the current deal. In private conversations, one of the committee members expressed the belief that, if the Supreme Court president did not allow the current deal involving Sohlberg, Zylbertal and Berliner to go forward, the selection of new justices would be deferred until after Beinisch's February retirement.

Beinisch's heir apparent as Supreme Court president is Justice Asher Grunis, who has attracted support on the political right wing for his sparing approach to intervention by the Supreme Court on government decision-making and Knesset legislation. His appointment requires the approval of pending legislation that would scrap the current requirement that anyone appointed president of the Supreme Court have at least three years to serve in the position before the mandatory retirement age of 70. Grunis would be just short of fulfilling the requirement.

One source on the selection committee said Grunis would be easier to deal with than Beinisch, and would not veto the appointment of Sohlberg to the High Court.