As top court shifts to Right, overhaul isn’t needed
Slowly but surely, the judicial overhaul is happening without Prime Minister Benjamin Netanyahu even raising an objection.
On Tuesday, when the Supreme Court announced that Justice Noam Sohlberg would replace Justice Yitzhak Amit on the Judicial Selection Committee, to the uninitiated, this might sound like just swapping one Supreme Court justice for another. It would not seem to mean much of a change, especially since the judicial overhaul tried to reduce the influence and power of the current court on its future picks.
The overhaul did not emerge in a vacuum, but rather had a bedrock goal of restructuring the Supreme Court to be more conservative, and more deferential to the executive and legislative branches.
In fact, Sohlberg replacing Amit is quite a radical change.
Sohlberg is one of the court’s most conservative justices, while Amit is seen as part of the court’s liberal wing, especially in recent years.
Until now, the Supreme Court justices on the Judicial Selection Committee operated as an automatic three-vote liberal bloc, both in voting and in framing the debates on candidates: who had legitimate qualifications and who did not, were underqualified, and pushed forward by political interests.
The assumption of the conservatives was that the Supreme Court justices voting power had to be reduced if the court were remade. But with Sohlberg joining, that bloc is broken.
He has added another potential vote to the three conservative votes on the committee, which is already effectively controlled by the government. While this does not give the government a majority, if either of the two Israel Bar Association members can be convinced to flip on a specific justice to the conservative side (something which is rare but has happened), the conservative side would have a majority.
This means that either way, the three votes of the Supreme Court justices are not eternally liberal. In fact, while there exists a mix of considerations about which justices get a seat on the committee, a primary one is seniority. After Sohlberg, conservative justices David Mintz and Yosef Elron could be next, and another conservative, Yael Wilner, is not far behind.
This means that the Supreme Court justices on the committee could, in not very long, vote as a conservative bloc.
Without waiting any time at all, the two remaining liberal justices on the committee may find it harder to dismiss as unqualified certain candidates, if Sohlberg says they are qualified.
In other words, when such candidates were defended only by political officials, the liberal wing could not only beat such candidates by vote, but could also undermine them as the “true experts” on the committee for qualifications.
Sohlberg has now taken away that moral high ground from the liberal side. He is conservative, but after around 12 years on the bench, no one would question his qualifications or his grasp of what it takes to be on the top court.
Plus, other changes have already taken effect.
Amit is actually a moderate liberal; there is a wide list of issues where he votes with the conservative wing. He has endorsed Shin Bet enhanced-interrogation tactics that many Western countries would consider torture, allowed Idit Silman to run for the Knesset despite legal disputes overher eligibility, and has ruled in favor of security considerations over human rights arguments in several cases.
That means that on a range of issues, as soon as two liberal justices, Esther Hayut and Anat Baron, retired in October, the court already flipped from an 8-7 liberal court to a 7-6 conservative one.
This trend will only continue if no new appointments are made to the High Court.
In October 2024, Uzi Vogelman will retire from the court. That will move the court to 6-6 on some issues, and decisively to 7-5 in a conservative direction on other issues.
The bottom line is that the court has shifted in a moderate conservative direction since when Ayelet Shaked was justice minister (2015-2019), followed by Gideon Sa’ar (2021-2022) – both well before the judicial overhaul legislation push.
Time and retirements have taken their toll, and the conservative wing of the court is on the rise in both numbers and seniority.
In another move on Tuesday, reportedly Justice Minister Yariv Levin and other conservative court members blocked the promotion of judge Tal Tadmor from the magistrate’s court to the district court due to issuing what they viewed as lenient sentences against Arab-Israelis who have committed nationalistic crimes during the May 2021 Gaza conflict.
This was a rare intervention of conservative politics even into lower levels of judicial appointments. Once the court swings in a fully conservative direction, what reason would Netanyahu have to pass an override for the Knesset?
That might even be a dangerous move, as changing control of the court takes time, and the court could remain conservative, outlasting his government being replaced by a more liberal one. Why give an override weapon to a potentially more liberal government?
And with that, the judicial overhaul becomes unnecessary, because the underlying goal for which conservatives wanted it passed – transforming the court to be more conservative – is already being accomplished or is on the horizon.