Zvi Zylbertal’s surprising announcement that he intends to retire in 2017 raises the number of Supreme Court justices expected to retire next year to four. A fifth justice is expected to retire the following year.
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Both Supreme Court President Miriam Naor and Deputy President Elyakim Rubinstein are due to leave next year, as is Justice Salim Joubran. All are leaving because they will have reached the mandatory retirement age of 70. The following year, Justice Uri Shoham will retire for the same reason.
The fact that Zylbertal will also leave next year means no less than a third of the court will have to be replaced. This will be the biggest turnover since 2012, when four new justices were appointed simultaneously.
The “deal” to replace the justices leaving in 2017 may also include a replacement for Shoham, meaning five justices would be appointed simultaneously. If so, the impact this decision will have on the court’s composition will be extraordinary. Only in 2021 will the next Supreme Court vacancy open up.
If the government survives in its current incarnation, Justice Minister Ayelet Shaked will lead this process as head of the Judicial Appointments Committee. Former Supreme Court President Aharon Barak’s proposal to transfer this job to the Supreme Court president, so as to underscore the judiciary’s independence, was unfortunately not accepted.
Nevertheless, a majority of the committee is nonpartisan. Alongside the justice minister, another minister (in this case, Finance Minister Moshe Kahlon) and two Knesset members, the panel is made up of three Supreme Court justices (Naor, by virtue of her role as court president, plus Rubinstein and Joubran) and two representatives of the Israel Bar Association.
Traditionally, one MK is supposed to represent the governing coalition and one the opposition. But today, the Knesset representatives are Nurit Koren of Likud and Robert Ilatov of Yisrael Beiteinu. Formally, Ilatov is an opposition MK, but in practice, he is to the right even of the coalition. Thus, even though Kahlon has repeatedly voiced a commitment to the rule of law and the Supreme Court’s independence, all the cabinet and Knesset representatives on the panel come from the right.
Supreme Court nominations can be put forward only by the justice minister, the Supreme Court president or three other panel members acting in concert. But Supreme Court appointments require approval by seven committee members. This means a consensus is needed because the justices and the politicians can each veto the opposing bloc.
Shaked has already expressed a desire to change the court’s composition by appointing more conservative justices. Now she’ll have a chance to advance this goal in a big way. And even today the court intervenes in government decisions in the name of human rights less than it did under Barak and his successor, Dorit Beinisch.
But Shaked might have to compromise to achieve a consensus on the committee. Remember the deal that led to the appointments of Noam Sohlberg, the conservatives’ darling, alongside Daphne Barak-Erez, the liberals’ darling, together with Shoham in 2012. A similar deal is likely to be concocted between Shaked, Naor and Naor’s designated successor, Justice Esther Hayut, even if Shaked will obviously do everything she can to bolster the court’s conservative wing.
But aside from their perceived affinity for either judicial activism or passivism, the choice of the new justices will also be influenced by other factors. To preserve the “diversity” to which the court is committed, Naor, Rubinstein, Joubran and Shoham are all expected to be replaced by someone who fills their particular “seat” – in other words, by a woman, an Orthodox Jew, an Arab and a Mizrahi Jew – a Jew of Middle Eastern origin.
From this perspective, Zylbertal’s departure may give those who don’t fall into any of these categories hope of securing a Supreme Court appointment in the current round. The “Arab seat” will probably be filled by one of two district court judges, Chaled Kabub or George Karra. But the question of who will fill the other four seats, and thus take part in shaping both Israeli jurisprudence and Israeli society for many years to come, is still wide open.