Analysis

Too Soon to Say How Conservative Israel's New High Court Bench Will Be

Not everyone in Israel's legal community is certain about the court's future direction despite the latest appointments of justices backed by the far-right justice minister, Ayelet Shaked.

FILE PHOTO: Israel's High Court of Justice.
Gil Yohanan

Justice Minister Ayelet Shaked was determined to change the face of the Supreme Court by making it more conservative and less likely to intervene in government policy.

Not everyone in the legal community, however, thinks it’s possible to be certain about the court’s future direction, even considering the new appointees’ records on the bench.

Shaked’s office didn’t bother to hide the satisfaction over the selection of Judge Yosef Elron, who was opposed by the Supreme Court justices on the Judicial Appointments Committee; Judge Yael Willner, a religious-Zionist, and Judge David Mintz, who lives in the settlement of Dolev and is a staunch conservative.

Tel Aviv District Court Judge George Karra was the only candidate that all three justices on the panel backed from the start.

Naturally there was criticism of the selection process. “These were not the best names that could have been chosen from the list,” one former justice said.

“It’s unfortunate that the choice of justices is not made just from relevant considerations of who is the best, but because of all kinds of other interests and arm-twisting.”

But Prof. Daniel Friedmann, a former justice minister and one of the most prominent critics of judicial activism, saw the choices as a Shaked success. He added that any blame for the process being “politicized” rests with the High Court itself for assuming too much authority.

“Take for example the ruling that dealt with the evacuation of the Gaza Strip, an issue that to me isn’t judiciable at all. The Supreme Court, as a panel of 11 justices, decided to deal with it and wrote 300 pages,” Friedmann said.

“There was a minority opinion by Edmond Levy that the disengagement was invalid and that evacuation is prohibited. So it’s natural that the right looks at this and says that if the court deals with this issue, and if a justice like Edmond Levy says you shouldn’t evacuate, then why shouldn’t we have 10 justices like him? That’s the most obvious train of thought under such circumstances.”

But has Shaked really succeeded in appointing justices like Levy, who will “shift the ship’s helm,” as she put it, after the selection meeting?

“The High Court over the past few years has tended to be more conservative than in the past, and some retiring justices also issued conservative rulings,” said Prof. Yuval Shani, an expert on international law, human rights and humanitarian law at the Hebrew University of Jerusalem.

“It looks as if there’s continued movement in an already existing direction, so it’s not clear that it’s a revolution.”

Court President Miriam Naor is considered a moderate conservative, while Justice Elyakim Rubinstein is also seen as a conservative. On the other hand, Justice Salim Joubran is identified as a liberal while Zvi Zylbertal isn’t identified with either group.

Willner, a Haifa District Court judge who was acceptable to the justices as well as Shaked, has been compared to Naor. She is considered an effective and diligent judge who has focused primarily on civil law.

Some of her rulings are indeed conservative, though others have been socially progressive, such as her order to the Education Ministry to provide a full 32 hours of service to a developmentally disabled girl who was too ill to attend a special education framework.

Mintz, a Jerusalem District Court judge, is more clearly identified as a conservative. Critics say he has rejected numerous petitions relating to freedom of information.

He ruled against a petition by Channel 10 demanding that Prime Minister Benjamin Netanyahu’s conversations with Sheldon Adelson, owner of Israel Hayom, and the paper’s editor, Amos Regev, be made public, finding in favor of their privacy. An appeal is pending in the Supreme Court. Mintz is also considered stringent in cases involving foreigners seeking status in Israel.

Elron, the Haifa District Court president, has “a very conservative agenda, and he doesn’t support activism and intervention,” a source on the appointments committee said. Elron has dealt mainly with criminal cases. In one notable case, a man he convicted of murder, Hamed Zinati, was later acquitted on appeal.

Prof. Barak Medina, an expert on public, constitutional and administrative law at the Hebrew University believes that it’s possible Shaked may be disappointed with her appointments, but it’s too early to know.

“I don’t think that any of the candidates is clearly against human rights or judicial activism,” he said. “These are people whose records don’t include intensive involvement with defending human rights so we can’t know for sure one way or the other.

The problem with the conduct of the committee is not how the candidates have ruled, but that no one cares how they ruled. All they know is that this one does or doesn’t live in a settlement, and that one does or doesn’t have a kippa on his head.”

Another factor seen influencing the court will be its new leader, which starting in October will be Justice Esther Hayut.

Some observers believe Hayut will be more activist that her predecessors, Naor and Asher Grunis. Medina says Hayut's ruling on the natural gas program, “clearly recognized that the power of the government is limited, that one must assure that the government doesn’t decide in a manner that ties the Knesset’s hands in the future. Her ruling there was very activist.”

Another law professor thought court's new makeup might boost its public image.

“Now you can say to whoever complains about the Supreme Court, ‘well, what do you see?’ There are religious women, settlers and Mizrahim [Jews of Middle Eastern and North African origin].

"It could help serve the goal of legitimacy; the question is whether it will undermine the basic objective of the court, which is defending human rights from the tyranny of the majority, and the rule of law.”

One former justice counseled patience, saying: “There have been many cases of judges where were appointed to give expression to a policy and who didn’t fulfill the expectations."