Libertarian Israeli Think Tank Pushes 'Conservative' Judges for Supreme Court

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The Supreme Court building in Jerusalem in April.
The Supreme Court building in Jerusalem in April. Credit: Ohad Zwigenberg

Deliberations on selecting Supreme Court judges have become an arena for political skirmishing between the left and right. In recent days, three right wing representatives in the Judicial Selection Committee have stumbled as they tried to appoint four conservative judges and, for the first time, deliver a Supreme Court majority to the conservative bloc.

In January 2019, toward the end of her term as justice minister, Ayelet Shaked, a right-wing politician, announced what she described as a “promise kept” to her voters – to change the face of the Supreme Court.

“Some four years ago I was elected in the name of an agenda to break the paradigm, and one of my goals was to raise the profile of the conservative alternative in Israel,” Shaked said at the time.

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“The justice system today is more diverse, more representative and more balanced. I am proud to say that today there is room for another opinion, and it stands proudly. We have broken the paradigm.”

Shaked was referring mainly to the appointment, made on her watch, of four conservative judges to the bench – David Mintz, Yosef Elron, Alex Stein and to some extent Yael Wilner as well, who joined right-winger Noam Sohlberg on what is considered the conservative wing of the top appellate court and the High Court of Justice.

Justice Minister Gideon Sa’ar, Interior Minister Ayelet Shaked, and Supreme Court President Esther Hayut at a meeting of the Judicial Selection Committee in SeptemberCredit: Rafi Ben Hakoon

But their addition still hasn’t overturned the historical majority of the liberal-activist wing on the Supreme Court.

The three right wing representatives in the Judicial Selection Committee constitute a “blocking faction,” as at least one of the three is necessary to achieve the 7-2 majority in the committee to appoint a Supreme Court justice.

However, the other six members of the panel all prefer to appoint candidates associated with the liberal-activist camp.

Political players keep trying to locate conservative candidates and promote their candidacy to the bench, adding pressure to the panel's right-wingers.

On Tuesday a photo was shared widely on Twitter showing lawyer and court candidate Nati Simchoni having dinner in May with conservative paper Israel Hayom's editor-in-chief Boaz Bismuth and Army Radio political commentator Yaakov Bardugo, both of whom are strong supporters of former Prime Minister Benjamin Netanyahu.

Documents and testimony obtained by Haaretz shed further light on how the committee members’ political leanings play out in the behind-the-scenes selection process.

The method: Collect as much information as possible about the judicial candidates and their views.

The means: use private organizations, such as the right-wing think-tank Kohelet, and unofficial talks between ministers’ aides and candidates, to try convincing them that they belong to the “right camp.”

Kohelet, a nationalist and libertarian political organization, continuously increases its influence among decision-makers in Israel.

Several participants in the judicial selection process, both in this round and previous ones, said they used Kohelet to collect and analyze data on judicial candidates. Sometimes Kohelet sends an opinion of their own, and sometimes a committee member will ask for its opinion on a given candidate.

Interior Minister Ayelet ShakedCredit: Olivier Fitoussi

Several such opinions have been obtained by Haaretz. All of them concern Supreme Court candidates, past and present, and were submitted to various committee members, at times upon their request.

“Enclosed please find an opinion we have formed after having painstakingly gone over dozens of verdicts. We analyzed these verdicts, searched for prominently good and bad verdicts by the candidates and noted them,” reads the explanatory text to one opinion.

Kohelet seeks proof of both a judge’s legal “conservatism” and his political views. “The court system’s mainstream trends towards activism, so a conservative personality would go with the existing activism,” read one of the opinions. “Therefore we actually seek a bold personality with conservative beliefs. Conservative toward elected officials, but bold toward judicial precedent. The system requires out-of-the-box thinking to effect the required conservative change.”

Another opinion on a Supreme Court candidate read: “This is an independent judge with a low rate of rejected administrative petitions. Lawyers like to appear before her because she doesn’t automatically accept the state’s position. This had advantages, but there is concern of excessive independence and activism.”

This judge’s positions are likewise listed. Under “positive” it says she “is not hostile toward the settlements,” and under negative it notes that she gave residency to a foreign worker for humanitarian reasons. Kohelet summed up its view of the judge by saying “the concern of an activist streak outweighs the advantages, but in this case the opinion is inconclusive.” The judge’s name ended up left off of the shortlist of candidates for the Supreme Court.

A source involved in the committee’s work says the power of the Kohelet Forum and similar organizations – such as the Movement for Governability and Democracy, formerly headed by committee member Rothman, which deals extensively in judicial nominees’ backgrounds – is ultimately very limited and consists mainly of torpedoing candidates through information collected. “They aren’t involved in the appointment itself. … They have no weight to pressure members one way or the other,” said the source.

Another source tells of pressure by candidates themselves, including talks with close associates of committee members. The two major players are ministers Sa’ar and Shaked, each of whom has two main aides coordinating this activity.

Justice Minister Gideon Sa’arCredit: Ohad Zwigenberg

The aides’ role is crucial. After an exposé on judicial appointments by the “Uvda” investigative TV program, Chief Justice of Israel's Supreme Court Esther Hayut issued a directive banning nominees for judicial appointments from approaching committee members to advance their candidacy.

But sources say judges still approach committee members’ aides. 

Disputes surrounding the appointment of liberal or conservative judges were at the heart of committee hearings, and the failure to solve them was one of the reasons the committee’s meeting on Tuesday was canceled and the selection postponed.

Sa’ar has thus far attempted to reach an agreement on the choice of four new judges without the support of Shaked and Rothman, aiming for what he calls a “balanced” list through understandings with Hayut.

The seven committee members, except for Shaked and Rothman, were close to agreement on the four judges to be appointed: They agreed in principle on Hayut’s nominee, Tel Aviv District Court Judge Ruth Ronen, identified as a liberal; Jerusalem District Court Judge Gila Knafi Steinitz, considered more conservative (although not definitively so); and Tel Aviv District Court Judge Khaled Kabub, as the Arab justice to replace Justice George Kara.

Negotiations imploded over the fourth nominee. The Bar Association asked that the fourth berth go to one of the two practicing attorneys on the list, Simchoni or Kobi Sharvit, and accepted Tel Aviv District Court Judge Gershon Guntovnik, until some five years ago a private attorney in the late Jacob Weinroth’s firm. But other members of the committee rejected all three.

Sources on the committee said the breakdown in talks and postponement of selection means all bets are off. Now, they say, the committee is expected to reconsider other nominees from the 24-name shortlist, while Shaked and Rothman’s influence can come back into play.

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