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By Prof. Michal Tamir, Associate Professor of The Academic Center of Law and Science, Israel, and President of the Israeli Law and Society Association. A list of Prof. Tamir’s publications can be found here.
The most recent appointments to the Israeli Supreme Court were crowned by many in Israel as a victory of conservative and right wing politicians led by Justice Minister Ayelet Shaked. The latter announced, immediately after the appointments, that “The controls of our legal flagship changed their direction tonight.” But, will the direction of the Supreme Court ruling, in fact, change?
During the tense period leading to the election of recent candidates, some members of the Knesset proposed to pass legislation that would, in effect, cancel the veto power judges have on their “less preferred” candidates. It is therefore not surprising that in the minutes of the last committee’s meeting, Chief Justice Miriam Naor was found saying that: “We all made concessions … these are decisions that are difficult for all of us.” These dilemmas and the concessions eventually led to the election of four serving District Court judges to the Supreme Court. One, an Arab Christian judge, and three others, who are perceived as “conservatives.” Two of the three are religious people: one is the first female religious judge in the Supreme Court, and the other lives in a settlement.
The appointments were perceived as a victory for the right in Israel, especially in light of Shaked’s motivation to portray the move as such. It seems, however, that a more nuanced analysis of the new appointments is needed. I would argue that contrary to the satisfaction conservatives may feel, as reported in the Israeli and international media, prophecy may not necessarily fulfill itself. According to the Israeli ethos, the two most important merits of the appointed judges are their professionalism and, to some extent, what we call in Israel “judicial temperament.” “Activism” and “conservativism” are less measurable, and the classification of a judge according to this dichotomy is somewhat superficial. Some judges reveal conservative approaches in certain areas and liberalism in other areas. Moreover, the challenges that the Supreme Court justices have dealt with over the years have led judges who were considered “conservative” to effectively develop the Israeli judicial review and to lead the protection of the structural constitution and human rights. A well-known statement of President Eisenhower is that the appointment of Justice Warren to the Supreme Court – which led to a series of liberal rulings – is one of the biggest mistakes he had made in his career. Indeed, reality is much more multifaceted and it is still very difficult to predict in what way the new appointments will affect the Court and its role in the Israeli society.
In Israel, the appointment procedure is characterized by a hybrid model that divides power between political elected officials and the legal community. The nine-member Committee for the Selection of Judges consists of representatives of all government authorities, as part of the checks and balances that characterize the customary and statutory separation of powers in Israel. The committee members comprise two ministers (The Minister of Justice and another minister, as elected by the government (; two members of the Israel Parliament – the Knesset; two members of the Bar; and three current Supreme Court Judges, one of whom is the Chief Justice. On its face, there are five professional members and four politicians in the committee, which gives a certain advantage to professional members. However, recently, an alliance was formed between the justice minister and members of the Bar. A candidate can be appointed to the Supreme Court based on the consent of seven members of the committee, which effectively gives any three committee members the power to veto a candidate.
The scope of everyday jobs the Supreme Court’s justices perform have made them quite powerful. Not only do they shape the image of law, but since the Israeli “constitutional revolution,” they also have the power to review the constitutionality of Knesset laws. The Supreme Court in Israel is not only a constitutional court, but serves primarily as a Court of Appeals. The bulk of its work is criminal and civil appeals on decisions of the district courts. The Court also sits as the High Court of Justice, where the justices sit in public petitions commonly concerned with administrative matters.
It would appear, then, that the recent appointments to the Court, which signify a movement toward conservativism, should cause concern to liberals. However, history shows that what matters is the socialization of the judges after their appointments and their loyalty to their judiciary peers and to justice. They are not accountable to the politicians who supported them. This is not merely a statement derived from a theory of judicial independence, but rather a historical reality in the Israeli climate. Thus, a justice’s labels as “religious” or “settler” does not automatically entail a conservative ruling in court.
A detailed example is the case of the late justice Moshe Landau, who was the fifth Chief Justice of the Supreme Court. Landau was perceived as conservative and was known to be openly against judicial activism. However, in 1969, he was part of a panel that, for the first time in Israel’s history, invalidated a Knesset law, the Parties Financing Law, due to its infringement upon the principle of equal election. In 1979, he ruled against expropriation of land for establishing the settlement “Elon Moreh”. Lanadau was not the only conservative judge to order an evacuation of a settlement. More than thirty years later, Chief Justice Asher Grunis, whose appointment was made possible by amending legislation passed by right-wing parties, ordered the evacuation of the “Amona” settlement, and so ended his tenure as a high-profile defender of human rights.
Another recent example that demonstrates a counter-intuitive decision is the minority opinion written by Justice Eliakim Rubinstein, a religious judge, who was willing to interpret the law in a shredded linguistic possibility, to achieve what he believed to be a more just and proportional solution for Arab terrorists. His opinion was written regarding the release of Arab prisoners in the “Shalit Deal”. The prisoners were released on a condition that they would no longer belong to a terrorist organization or engage in terrorist activities. The Supreme Court decided to return the prisoners who violated the prison conditions. Justice Rubinstein held a minority opinion, in which he claimed that it was more correct and justified for the Parole Board to consider a partial cancellation of the release.
Finally, even recently appointed judges, who clearly show “conservative” tendencies, have disappointed the conservative right in Israel with their human rights rulings. In a case involving a complaint against a policeman who abused a Palestinian detainee, Justice Solberg – a religious judge who lives in a settlement – was part of a panel that was willing to intervene with an Attorney General’s decision not to file an indictment, based on an insufficient evidence. This decision created a dramatic precedent. Not only was this the first time the Supreme Court intervened in the Attorney-General’s decisions related to evidence, it did so in consideration of justice for a Palestinian.
The examples described above are only a sporadic illustration of the judicial reality which is well known to Israeli jurists: once judges are appointed, they rule according to their conscience and they are much more loyal to the institution to which they entered, rather than to the person by whom they were selected. It is not a cliché to say that judges in Israel are subject only to the law. Furthermore, a crucial element that was not emphasized enough in the exaggerated celebrations of the right-wing victory in Israel is that all four recent Supreme Court appointees are judges, who have spent their professional lives in the judicial system. They are used to its decision-making rules, its codes and its hierarchy. None come from the Academia or the private sector, or even the Civil Service. This is a true victory for the judges’ voice in the committee.
The reason Minister Shaked declared a victory may be better understood through her political core electorate, rather than her prior pledges of the elected judges. The judges, unlike Justice Minister Shaked, do not owe voters anything. They do not need the headlines, especially as they foresee additional appointments in the not-too-distant future. Despite the conservative winds felt in these recent appointments, which join a more general conservative trend in Israeli politics, only future legal challenges will show whether these appointments served to reverse the ship’s course or simply offered minor course corrections. If one can learn anything from Israeli constitutional history, the new judges will seek legitimacy not with the justice minister, but with the legal community and their peers in the court.