Saving the Court From the Justice Minister

Shaked is not interested in dialogue or consensus and certainly not in a balanced court.

Justice Minister Ayelet Shaked.
Olivier Fitoussi

There is nothing that Justice Minister Ayelet Shaked will not try in her efforts to increase political influence over the Supreme Court. In addition to calling on justices to refrain from ruling against the wishes of the government, and thus to enhance “governability,” which has allegedly been facing difficulties, now Shaked is seeking to change the rules of the game for the selection of the court’s justices. She is doing so with the aim of increasing the power of politicians on the selection committee, which would allow them to appoint judges to the highest court even if the Supreme Court justices themselves do not view the candidates as suitable.

According to media reports, Shaked is seeking to repeal an amendment made to the courts law in 2008, at the initiative of (then) Knesset member Gideon Sa’ar, that requires a super-majority of at least seven of the nine judicial selection committee members when it comes to appointing new Supreme Court justices. The provision was enacted at the time to require the various sectors represented on the committee – justices, cabinet members, Knesset members – to come to a consensus that would lead to a balance in the composition of the court.

Shaked, however, is not interested in dialogue or consensus and certainly not in a balanced court. She wants an obedient court on which the justices would be jurists seeking to satisfy the whims of the government at any price. As a Knesset member, in every possible forum, Shaked has complained that the Supreme Court justices are “duplicating themselves” and that they are all cut from the same cloth. But not only does she have no way of knowing that; there is also not a grain of truth to the claim. The purpose of spreading such fabrications is to further the intention to fill the court with jurists whose judicial ability and professionalism is not the criterion for their selection.

In the coming year, four justices are due to step down from the Supreme Court, representing more than a quarter of the justices on the court. The justice minister sees this as an opportunity to change in one fell swoop the face of this central national institution, which still preserves something of the democratic and liberal character of Israel, in addition to protecting human rights and fundamental democratic principles. Instead of coming to a compromise with the candidates supported by Supreme Court President Miriam Naor, Shaked is seeking to decide by herself.

Shaked’s proposal, which is comparable to putting a gun to the Supreme Court president’s head, is another step in the trampling of the proper balance among the branches of government. During his terms in office as prime minister, Benjamin Netanyahu has approved the Supreme Court appointments proposed by confrontational justice ministers – Yaakov Neeman and Ayelet Shaked – but at decisive moments he has come down on the side of the Israeli judicial system. The prime minister has the responsibility to conduct himself in the same manner now too, to prevent serious harm to the judicial system and to head off its politicization.