Analysis

Surprise Retirement of Israeli Supreme Court Justice Spells More Bad News for Liberals

Israel's right-wing Justice Minister Ayelet Shaked now has two more court vacancies to fill.

Israeli Justice Minister Ayelet Shaked, Jan. 16, 2017.
Olivier Fitoussi

The surprise announcement that Supreme Court Justice Yoram Danziger will retire next year is liable to intensify the battle over judicial appointments. Since Justice Uri Shoham is also retiring next year, two vacancies will open.

Justice Minister Ayelet Shaked will enter this round of appointments with considerable experience in negotiations and an expectation by her voters that she’ll continue expanding the presence of conservative justices – those who steer clear of overturning laws – on the Supreme Court. For Shaked, this will be a chance to deal a death blow to the last remnants of so-called judicial activism.

Since Supreme Court President Miriam Naor will retire in September, the three justices serving on the nine-member Judicial Appointments Committee will be led instead by her successor, Justice Esther Hayut, who might also replace the other two justices. Hayut’s judicial worldview is liberal and, to a large extent, activist – an endangered species on the court.

Many of the 27 candidates in the round of Supreme Court appointments that ended last month will reappear on next year’s list. But the retiring justices, Danziger and Shoham, have certain attributes that the appointments committee must consider in making its choices.

Danziger was a private-sector attorney before joining the court, as was another justice, Hanan Melcer. But since they were appointed a decade ago, no other private-sector lawyer has been appointed.

Supreme Court Justice Yoram Danziger in 2014.
Olivier Fitoussi

Bar Association pressure

Thus Shaked is likely to come under pressure from Israel Bar Association President Efraim Nave, who was her ally during the last round of appointments, to back a candidate of the bar’s choice this time around. The Bar Association controls two seats on the appointments committee, and Shaked will have to reimburse Nave for his support last time.

Danziger was also the Supreme Court’s expert on corporate law, making it important that he be replaced by a judge with similar expertise. Three of the candidates last time around have economic expertise: district court judges Ofer Grosskopf, Chaled Kabub and Ruth Ronnen.

Ronnen is persona non grata for Shaked because she has unjustly been labeled a political leftist. Kabub has the Bar Association’s backing, but the fact that another Arab justice was appointed last month – George Karra – reduces his chances. Grosskopf, a very knowledgeable and efficient judge, is widely admired on the Supreme Court and was considered a leading candidate in the last round, but without political backing, his expertise and professionalism won’t be enough to get him appointed.

Shoham, meanwhile, is Mizrahi, and was appointed in part to ensure the Mizrahi community’s representation on the court. Since then, two other Mizrahi justices have been appointed: Menachem Mazuz and, just last month, Yosef Elron, ostensibly making it less important that his replacement be Mizrahi. Nevertheless, members of the appointments committee for whom the ethnic issue is important, like Finance Minister Moshe Kahlon, may insist that Shoham’s seat remain in Mizrahi hands.

Shoham, a former military advocate general, was an expert on defense-related cases, as well as on criminal cases, thanks to his time as a district court judge. But his expertise in criminal law will be taken up by Elron and Karra.

This opens the way for an appointment from academia, as no academics were appointed last time. Shaked will presumably once again push for Prof. Gideon Sapir of Bar-Ilan University; her support for his candidacy last time around proved helpful to her in negotiations with the justices on the appointments committee.

Some people are attributing significance to the fact that Danziger’s early retirement next year comes soon after Justice Zvi Zylbertal’s early retirement this year. But is this a protest by the court’s liberal justices? Highly unlikely. Rather, their retirements can be seen as a sign of the court’s weakness, and of the liberal justices’ sense that the institution’s character and rulings are no longer in their control.

Giving up a job so coveted by so many jurists ought to be something unusual. On the U.S. Supreme Court, for instance, where appointments are for life rather than until age 70, many justices cling to their seats until their dying day to ensure that the court remains ideologically balanced.

But in Israel, this balance is no longer in the justices’ control. Now, it rests in the hands of the politicians.