The Revolution That Never Happened

Justice Minister Ayelet Shaked did not insist on appointing people who are capable of leading the campaign against judicial activism.

(From left) Supreme Court President Miriam Naor, Justice Minister Ayelet Shaked and President Reuven Rivlin at the judges' swearing-in ceremony, Apr. 13, 2016, in Jerusalem. In the picture, Shaked is turned toward Naor as if to speak to her privately, while Rivlin looks straight into the camera.
Olivier Fitoussi

Justice Minister Ayelet Shaked is boasting about her choosing “conservative” judges for the Supreme Court, declaring that she has wrought a revolution and made history. The truth is that this isn’t even a glimmer of a revolution, definitely not a historic turning point. In truth, this is nothing but political spin, the objective of which is to convince her expectant voters that she fought to fulfill their yearnings for changing the homogenous character of the court, and that her success exceeded all expectations. Only thus can she justify her failure in selecting judges who could really, by dint of their personality and judicial philosophy, bring about a revolution.

In order to lead a conservative revolution it’s not enough to appoint judges who eschew political robes, in contrast to most Supreme Court justices in the last few decades. A revolution is generated by people whose personal constitution is revolutionary and who, through their learning and depth of judicial wisdom, can bring their opinions to bear against the judiciary branch’s intervention in areas that are under the jurisdiction of the legislative branch of government.

Examining the philosophy and character of the new “conservative” appointees does not show them as possessing these qualities. Moreover, the chosen justices were wronged when the justice minister harnessed them without their consent to her ideological (and full?) wagon, declaring that these are the ones who will spearhead the counter-revolution she is leading. The philosophy of these appointees, even that of David Mintz – the only one who is correctly identified as conservative, and even that only on topics of religion and national identity – does not guarantee their adherence to her ideology.

Past experience shows – except perhaps in the case of Justice Noam Sohlberg – that judges who were appointed for their “conservative” outlook quickly blended in with leading and “correct” opinion holders. Other than on specifically religious issues, they make their rulings in the spirit of the majority, even on political issues related to national identity. Two of the new justices, Yael Vilner and George Kara, were chosen by sitting Supreme Court justices and are not beholden to Shaked’s agenda. Neither is Yosef Elron, the candidate of Finance Minister Moshe Kahlon. David Mintz is a professional judge, a solid one who adheres to the issue at hand, who has never expressed himself with regard to a constitutional revolution.

People familiar with the horse trading that accompanied the selection process claim that Shaked did not insist on appointing people who are capable of leading the campaign against judicial activism, and that in fact she sacrificed this principle for compromise candidates. The appointed justices are fine, said a person who is close to the selection committee, but they are not people who can live up to the hopes for change. These are not revolutionary justices.

One person who has laid out an organized and well-researched judiciary argument against a constitutional revolution is Professor Gideon Sapir. At the launch of his 2010 book “Constitutional Revolution in Israel – Past, Present & Future,” which is full of sharp and well-reasoned arguments against such a revolution, one of the people present was former Supreme Court President Aharon Barak. While praising Sapir’s analysis, arguments and the high academic standards of his book, he obviously defended his opposing worldview. I was present on that occasion, thinking that, finally, here was an academic-legal theoretician of great stature, someone with a clear and persuasive agenda who could grapple with Barak on the latter’s home turf.

Sapir was a candidate this time around but the Supreme Court justices, wary of again lending an intellectual bent to the court – this time in the opposite direction to that of Barak – foiled his nomination. Even though he was the only one who could truly have promoted her agenda, Shaked didn’t fight hard enough for him. This is not the way to foster a revolution.