A new dispute between Justice Minister Ayelet Shaked (Habayit Hayehudi) and Supreme Court President Justice Miriam Na’or is about the rattle yet again the tenuous relationship between the rightwing leader and the leftwing remnants in the high court, Yedioth Aharonoth reported Sunday morning.
The dispute, which on its face involves a procedural disagreement between the minister and the court president – over whether Na’or’s replacement at the helm after her retirement in September this year should be based on seniority or merit – is, in reality, over the identity of the most senior justice next to Na’or, Esther Hayut.
Other than in high-profile cases, the Israeli Supreme Court works in three-judge panels which, according to the law, may be decided by the court’s president, although most of the panels in routine cases are decided by a lottery. However, when it comes to cases involving Judea and Samaria settlements, especially those where Arab claimants are suing Jewish land owners, President Na’or has made it the rule rather than the exception to pick decidedly anti-settlements justices. Most notable among these have been Justice Yoram Danziger, who also retires this year, and Justice Esther Hayut.
Needless to say, the only Justice who lives on a settlement, Noam Sohlberg, hardly ever gets to sit on panels deciding settlements-related cases.
To date, all the new court presidents have been appointed based on their seniority, but this does not make it the law of the land, nor even a legal precedent. It is merely a custom. Na’or, who retires in six months, asked Minister Shaked to rubberstamp the Hayut appointment in the coming Summer session of the Knesset, so that Na’or and Hayut could overlap in the role, familiarizing the latter with her new role.
But, according to today’s report, Shaked is not ready to commit to the new appointment which, in Hayut’s case, would undermine the central agenda of Habayit Hayehudi.
Except that Shaked is not the first Justice Minister to oppose the seniority as the determining factor in appointing new Supreme Court presidents. Two Labor Justice Ministers, Yossi Beilin and Haim Ramon, as well as Likud Justice Minister Daniel Friedman, have argued for merit-based appointments, objecting to being turned into rubber stamps.
Combining Minister Shaked’s record in appointing three new conservative justices to replace two activists and a moderate, with her possible jab at skipping an anti-settlements extremists at the helm, would go a long way to reform a supreme court that has been an anti-settlement force for more than two decades.