Israeli Minister Sends Supreme Court Into Turmoil Over President Appointment Reform

Ayelet Shaked sees disadvantages to the current practice of making the longest serving justice head of Israel's top court when outgoing president retires.

Justice Minister Ayelet Shaked at a weekly cabinet meeting, January 2017.
Ohad Zwigenberg

Justice Minister Ayelet Shaked is considering abolishing the seniority system for appointing Supreme Court presidents.

The system is a long-standing tradition that has never been enacted into law: Whenever a sitting president retires, the justice who has been on the Supreme Court longest automatically becomes the next president.

A source involved in the Judicial Appointments Committee’s work said that ever since the news that Shaked is considering abolishing the seniority system got out, “the Supreme Court has been in turmoil.”

The court’s current president, Miriam Naor, will retire in October. Under the seniority system, she would automatically be replaced by Justice Esther Hayut.

But the appointments committee is yet to confirm Hayut’s promotion, and the daily Yedioth Ahronoth reported recently that Shaked has refused to put the issue on the agenda of the committee’s planned meeting in June – despite Naor’s request that Hayut be confirmed quickly in order to allow time for a proper transition.

Shaked believes the seniority system has disadvantages as well as advantages, and is therefore exploring the possibility of changing it.

A discussion on the matter is expected to take place in July or August.

“Shaked is considering her view, and her next steps, and she’s wondering whether the seniority system is right,” the person involved in the appointments panel’s work told Haaretz. “There are arguments both ways, and she hasn’t decided.”

Meanwhile, though, she has decided that it is premature to confirm Hayut’s promotion, and there is no reason why that decision can’t wait, the source added.

The prospect of changing the system has agitated the Supreme Court, he continued, because whereas appointing a new justice requires the approval of at least seven members of the nine-member appointments committee, appointing a new court president requires only a simple 5-4 majority. This means the sitting justices, who control three of the committee’s nine seats, would not be able to block the appointment of a president they opposed.

Aside from the three justices – Naor, Salim Joubran and Elyakim Rubinstein – the committee’s other members are Shaked, Finance Minister Moshe Kahlon, MKs Nurit Koren (Likud) and Robert Ilatov (Yisrael Beiteinu), plus two representatives of the Israel Bar Association: lawyers Elana Saker and Khaled Hosni Zoabi.

In an interview with the Bar Association’s bulletin, Naor said she strongly supports the seniority system. “It’s the right method and it shouldn’t be changed,” she said.

“Take our system and compare it to what happens in other systems, without naming any names,” she continued. “Look at how here there are no factions and no score-settling, but a system where everyone knows how it works, so there’s quiet. That’s the most important thing in my eyes. If a person is appointed to the Supreme Court, the point of departure must be that he is capable, if the time comes, of also serving as the institution’s president.”

But another person on the committee offered a more equivocal assessment.

“On the one hand, the system provides stability and certainty because you know in advance who is going to become president, so no justice needs to curry favor with the politicians or hand down rulings that will support his being appointed,” the source said. “But on the other hand, we’re in a situation where, when we appoint someone to the Supreme Court, we already know 15 years in advance that he’ll become president. But is it possible to know then that he’s a good administrator with social skills and leadership skills? Moreover, if this system is decisive, then why do we need a statutory committee?”

Former Supreme Court President Dorit Beinisch also expressed strong support for the seniority system. She became president in 2006 only because an earlier attempt to change the system failed, and the desire to prevent her appointment was thought to be a major factor in then-Justice Minister Daniel Friedmann’s efforts to scrap the seniority rule.

“I hope these reports aren’t serious and that the system will remain, because it’s the best we’ve got,” Beinisch told Haaretz. “It guarantees the Supreme Court’s independence, and therefore I’m optimistic. I’ve personally lived through attempts to change it, so I’m familiar with this.

“There’s no doubt the system isn’t optimal, but there’s no other system that guarantees that justices won’t try to advance by currying favor with the politicians,” she added. “It would be very bad if they canceled it and there was competition to obtain the office. The system worked well for all these years and preserved the court from competition over obtaining jobs – which is the most dangerous thing for the system.

“Even if they try to change it, they don’t know exactly what the president’s responsibilities are and what this job – which isn’t defined – entails, so how will they know who’s suitable and who isn’t? The assumption is that everyone [on the court] is suitable. 

“All the court’s work processes follow the seniority rule,” Beinisch concluded. “Changing this situation would damage and politicize the court. It’s hard to believe they would want to undermine the court’s independence to that extent, not even Minister Shaked. I also can’t imagine that the judges would agree to such a move. It’s not an issue of individual candidates, but a blow to the court’s principles.”