Analysis

Justice Minister Ayelet Shaked Does Her Bit to Erode Israeli Democracy

In the battle over Supreme Court appointments, Shaked is striving to drop the judiciary from the system of checks and balances. She's proving a strong politician.

Justice Minister Ayelet Shaked and Supreme Court President Miriam Naor at the Israel Bar Association conference in 2015.
Tomer Appelbaum

Miriam Naor is an extremely statesmanlike and practical Supreme Court president. She avoids public confrontations and strives to keep the debate constructive. Judicial activism isn’t her main trait. The letter Naor sent Justice Minister Ayelet Shaked may be moderately worded, but its message is sharp.

Naor heard the voices calling for a private bill denying the Supreme Court justices the ability to block appointments to the court. Her letter reveals that  justices tried to reach an agreement with Shaked and the other members of the Judicial Appointments Committee.

Naor has called the bill “a gun on the table”: Unless you agree, we’ll change the rules. Naor waited for Shaked to object, but no objection came. To Naor, Shaked has gone too far.

Based on Shaked’s response, it looks as if she’s trying not to be threatening. She wasn’t the one who caused the tumult, and the selection process for judges will continue as usual, she says.

The bill isn’t supposed to be discussed anytime soon by the Ministerial Committee for Legislation headed by Shaked, but Shaked still hasn’t declared a clear objection to the bill. Presumably she doesn’t really object to it.

Four new justices are to be selected for the 15-member Supreme Court. This is Shaked’s chance to erode the judiciary’s role as a check and balance another step on the way to setting up a “democtatorship.”

The battle over the court’s image is a more radical version of the battle over public broadcasting. What’s the Supreme Court worth if we can’t control it?

The claim that the justices are “duplicating themselves” with their veto right in the Judicial Appointments Committee is absurd. Is Noam Sohlberg a duplication of Dorit Beinisch, during whose term as president he was appointed? Is Uri Shoham a duplication of Aharon Barak? Is Neal Hendel a duplication of Ayala Procaccia?

The current situation lets justices vote together and block candidates they object to. Under an amendment sponsored by then-minister Gideon Sa’ar, seven out of nine members on the Judicial Appointments Committee are required to appoint a Supreme Court justice. But the justices alone can’t appoint any candidate because the justice minister controls her own bloc. This is how the committee requires its members to discuss and agree on the new justices.

Meanwhile, the court isn’t activist, despite the portrayal by Shaked and her political partners.

In any case, Shaked is turning out to be a strong politician, appointing exactly who she wants to every position. Avichai Mendelblit was a favorite of her and the prime minister, so he became attorney general despite all the objections.

In fact, the Supreme Court whose activism so worries Shaked gave its blessing to the appointment. Shaked does whatever she wants in appointing senior officials at the Justice Ministry. Anyone who doesn’t share her ideological positions gets sent to the deep freeze.

The Supreme Court is almost the only remaining check against the tyranny of the majority. The problem is that the current court is the least activist one we’ve had for years. The justices have long stopped sharing the same ideology. It’s doubtful they ever did. Very few justices could be called activists.

The number of “activist” Supreme Court rulings is dwindling. The rightists keep bringing up the court’s striking down of the hard-line law against asylum seekers. They also complain about the verdicts on demolishing terrorists’ homes, even though the court approves demolitions time and again. Whenever the court’s decisions have been inconvenient for the politicians – and this happens very rarely – the government delays or bypasses them.

The delay in evacuating the Amona outpost despite the court’s rulings is a farce. Israel’s plan for its natural gas industry was delayed by the court, but the cabinet easily jumped that hurdle and the plan proceeded.

Naor’s letter triggered a political response and could freeze the justice-appointment process for a while. In view of the political controversy, the situation should be frozen until the justices and Shaked find a way to talk to each other without threats. Despite the difficulty, the Supreme Court will manage with a shortage of judges.

The way things appear, we’re in for an extremely conservative Supreme Court. The Judicial Appointments Committee headed by Shaked has appointed dozens of magistrate’s and district-court judges over the past year. Without questioning their professional standards, most of them were chosen in the spirit desired by Shaked. In a decade or two these judges will be potential candidates for the Supreme Court.

The pendulum is swinging from activism to conservatism. This change should take place in a democratic way over time without legislation that changes the rules of the game.