Why Supreme Court justices cut a deal they did not want

Supreme Court President Miriam Naor really had no choice.

It was either cut a bad (from Naor’s perspective) deal where some of the four new Supreme Court justices would be moderates whom she at least did not object to, or be run over by Justice Minister Ayelet Shaked’s political train and be stuck with four conservatives.

One way or another, the new appointees to the court were going to give it a more conservative flavor.

Several years ago, the Knesset passed a law stating that seven of the nine members of the Judicial Selection Committee must support a candidate for him or her to be appointed to the Supreme Court.

Though there are more politicians on the committee than justices, the presence of three justices has meant that, effectively, the Supreme Court’s consent is needed to get an appointment through.

Earlier in November, in an unprecedented sign of open war, Naor severed relations with Shaked regarding negotiations about appointments of the future justices, over the justice minister’s “gun on the table” threats she has made through the media about pushing a bill through the Knesset allowing her and the political echelon to appoint judges without the justices having a collective veto.

The bill would have allowed appointments of four justices to the Supreme Court with a simple majority of the committee, five of nine members – even if all of the justices on the panel, three of nine members, opposed the candidates.

Apparently, Naor was convinced that Shaked was ready to follow through on the threat and that the court no longer has a real champion in the government coalition who would fight for it.

So she cut a deal where she got some things she wanted and blocked some worst case scenarios.

It should be kept in mind that only one of the four new justices, West Bank resident Jerusalem District Court Judge David Mintz, has a clear reputation on some constitutional issues as a conservative.

Two of the other new justices, Haifa District Court President Yosef Elron and Haifa District Court Judge Yael Willner, are seen as more likely than not to go conservative and were initially objected to by Naor, but they have not actually ruled on constitutional issues.

Some expect them to turn out to be moderates, even if they are not activists in the spirit of former Supreme Court president Aharon Barak. Willner is a religious-zionist, which many associate with more conservative views, but she also clerked for former Supreme Court president Dorit Beinisch, a leading activist.

Naor also did get Tel Aviv District Court Judge George Karra, the justices’ bloc preferred candidate for the “Arab seat” over Tel Aviv District Court Judge Chaled Kabub, preferred by the Bar Association. He does not have a particular record on constitutional issues, but the presumption is he is a “company man” who will fall in line with the majority of the justices.

Also, the court’s real nightmare was an appointment like Prof. Gideon Sapir, who is loudly anti-activist and would have been a high-profile thorn in the justices’ side in a way that even a conservative but low-profile judge like Mintz could never be.

By cutting the deal, they avoided that scenario, which they might well have gotten if Shaked had pushed the Knesset bill forward.

Aside from avoiding worst case scenarios, even if three of the four justices turn out to be conservative, it will not change the court overnight.

Two or three current justices are viewed as conservative out of 14, so now the number would move to five or six out of 14, still a minority.

The main significance is long-term. All of the conservative justices on the court are newer, which means they will be around for a long time, just as the new appointees will.

That means that in the next round of appointments, the conservatives really could take over the majority.

Regardless, it was the best deal Naor could cut.