Less than two weeks before the judicial selection committee convenes to choose two new Supreme Court justices, Justice Minister Ayelet Shaked is taking the position that if her candidate for one of the slots, Brooklyn Law School professor Alex Stein, is not selected, no one else will be, Haaretz has learned.
Stein will be coming to Israel on Thursday for a hearing before the committee, where he is expected to face tough questioning. A final decision by the committee is slated for February 22, but at the moment, it appears that the prospects for agreement among the committee members regarding Stein are low. Shaked’s office issued a statement saying simply that she “is working for the selection of one of her candidates.”
Shaked is insisting on Stein’s confirmation and from her standpoint, Haaretz has learned, that there is no point in negotiating over candidates for the second Supreme Court slot as long as there is no decision to confirm Stein. By law, appointment to the Supreme Court requires that seven of the nine members of the judicial selection committee support a candidate. The three Supreme Court justices on the committee, including court President Esther Hayut, oppose the appointment of Stein, who for the past 15 years has lived in the United States.
He is currently a law professor at Brooklyn Law School in New York, which is ranked only 88th among American schools of law. He was previously a professor of law at Yeshiva University’s Cardozo Law School, which by the same ranking system is 65th in the country. He is an expert on the laws of evidence. In his legal writing, he has not addressed matters of public law and as a practical matter has not been writing about Israeli law for the past 15 years, which has prompted questions about his suitability as a candidate for Israeli Supreme Court justice.
Prominent lawyers with whom Haaretz spoke expressed surprise that Shaked would support a candidate who left Israel and whose son did not serve in the Israeli army. Sources close to Stein responded, however, that following Stein’s divorce, he was given custody of his son. The sources said it was unfair to bring up the matter out of context and in any event Stein’s candidacy should in no way relate to his son.
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In a effort to come to a consensus on the selection of Supreme Court candidates, Shaked has suggested increasing the number of justices from 15 to 17. The assumption is that with the committee selecting four candidates, it would be easier to come to a consensus. The Supreme Court spokesperson’s office issued a statement saying, however, that it would not respond as no such proposal has been submitted and that Hayut’s stance on Stein would be submitted to the selection committee and not via the press.
Shaked has called Stein a conservative, although that is not apparent from his legal writing. Those close to him describe him as a “legal positivist,” an approach that views law as a science that supports limiting the law and judicial activity to what is outlined in written laws and regulations rather than being guided by values.
Stein has been a visiting faculty member at a number of American law schools, including Yale.