Netanyahu’s judiciary panel win could end up tilting the High Court leftward

Netanyahu’s judiciary panel win could end up tilting the High Court leftward

Likud’s Osnat Mark beats Yamina’s Ayelet Shaked for judge-appointing committee, setting up High Court fight that could deny the right a veto in choosing the next six justices

Haviv Rettig Gur

Haviv Rettig Gur is The Times of Israel's senior analyst.

Prime Minister Benjamin Netanyahu wears a face mask to help prevent the spread of the coronavirus as he chairs the weekly cabinet meeting, at the Foreign Ministry, in Jerusalem, July 5, 2020. (Gali Tibbon/Pool via AP)
Prime Minister Benjamin Netanyahu wears a face mask to help prevent the spread of the coronavirus as he chairs the weekly cabinet meeting, at the Foreign Ministry, in Jerusalem, July 5, 2020. (Gali Tibbon/Pool via AP)

Prime Minister Benjamin Netanyahu had a rare political win after a few days of unrelenting bad news.

The economy may be cratering and satisfaction with his handling of the coronavirus emergency may have cut in half, but on Wednesday he managed to deny the loathed right-wing Yamina party a coveted seat on the committee that appoints Israel’s judges.

That may sound sarcastic, but it isn’t. The animus between Netanyahu and Yamina’s Naftali Bennett and Ayelet Shaked is deep and longstanding and personal.

And on Wednesday it may have dearly hurt the conservative campaign for judicial reform.

First, the facts.

The Knesset gets to appoint two members to the nine-member Judicial Appointments Committee, which in turn selects new judges, including Supreme Court justices. It is traditional, and many say legally required as a “constitutional custom,” to split the two-MK contingent between the coalition and the opposition.

Then-justice minister Ayelet Shaked seen with then-chief justice Miriam Naor, then-Finance Minister Moshe Kahlon and members of the Judicial Appointments Committee at a meeting in Jerusalem, on February 22, 2017. (Yonatan Sindel/Flash90)

The rest of the committee is made up of two cabinet ministers, two representatives of the Israel Bar Association and three serving members of the Supreme Court.

Under a law passed by the Knesset in 2002, appointing a new Supreme Court justice requires seven votes on the nine-member committee. That is, you can’t appoint a new justice without at least one of the three Supreme Court justices voting in favor, and the three justices have never split their vote. Of course, the ruling coalition enjoys the same veto power, since it has two ministers and at least one of the Knesset representatives as part of its contingent.

On Wednesday the Knesset held a vote for its representatives to the committee (and to three other committees that appoint the religious court judges for Jewish, Muslim and Druze religious courts).

Four lawmakers competed for the two slots: Derech Eretz MK Zvi Hauser, Likud MK Osnat Mark, Yesh Atid MK Karine Elharrar and Yamina MK Ayelet Shaked. Hauser was a shoo-in; a conservative on judicial questions who is a member of the centrist Gantz-led half of the unity government, he enjoyed broad support from both right and center. And indeed, he won the highest number of votes.

Elharrar, hailing from an opposition party and espousing liberal views on the judiciary, was certain to lose.

The race for the second spot was between Likud’s Mark, whose patron Netanyahu pushed for her election, and Yamina’s Shaked, a former justice minister.

Likud MK Osnat Mark during a Knesset committee meeting on May 21, 2019. (Yonatan Sindel/Flash90)

No ideological gap divided the two women. Shaked is a judicial conservative whose term at the Justice Ministry saw a shift toward more conservative judges in the nearly 300 appointments made during the period.

Mark vowed in the run-up to the vote to push for conservative judges “with a Likud outlook,” a promise she repeated on Wednesday.

So ideology wasn’t at stake in the race — but Netanyahu’s political standing was.

Mark represents Netanyahu. She holds her Knesset seat as a replacement for a Likud cabinet minister who resigned their parliamentary seat under the so-called “Norwegian Law.” Netanyahu can at any moment order any Likud minister to reclaim their seat, pushing Mark out of the Knesset. No MK in the house is more directly beholden on a day-to-day basis to Netanyahu.

By law, the vote is a secret ballot, a fact that transformed it into a test for Netanyahu’s support in parliament as his poll numbers are battered by public anger, a shrinking economy, and accusations that he mishandled the pandemic response.

Former justice minister and Yamina lawmaker Ayelet Shaked speaks at the Maariv conference in Herzliya, on February 26, 2020. (Miriam Alster/Flash90)

Shaked had appeal across the aisle, drawing votes from opposition lawmakers who wanted to embarrass Netanyahu and from conservatives in the coalition who preferred her long record of action on judicial reform to the neophyte Mark’s rhetoric.

The final vote haul offers a fascinating window into the complex and interlocking loyalties of the current Knesset: Hauser 67, Mark 56, Elharrar 47, Shaked 43.

In a simple sense, Netanyahu won. Mark won her seat and Shaked came in fourth.

But Likud political managers were unhappy.

Ahead of the vote on Wednesday, Yisrael Beytenu chief Avigdor Liberman predicted in an interview with Israel Radio that “at least half of the MKs from Likud will vote for Ayelet Shaked.”

It wasn’t half. But at least 16 members of the 72-member coalition did not vote for Mark; possibly more, if rumors that the Islamic Movement-affiliated Ra’am party voted for Netanyahu’s candidate are true. The Arab MKs’ refusal to vote for Shaked probably explains her showing at less than the total vote tally of the opposition.

MKs Zvi Hauser (Derech Eretz) and Osnat Mark (Likud) in the Knesset on July 15, 2020. (Knesset)

Put simply: A large (though not precisely knowable) number of Likud MKs voted for Shaked and against Netanyahu. Conservative Muslim representatives probably supported Netanyahu (as a political quid pro quo, to be sure; no love is lost between them). The opposition is split, but so is the ruling coalition.

But all that’s just the beginning of the drama.

Netanyahu’s priorities

In choosing Mark and Hauser — two coalition members — the MKs went against the rule that one MK must represent the coalition and another the opposition.

In 2017, in a case that examined the legality of Yisrael Beytenu MK Robert Ilatov’s continued membership on the appointments committee after his party made the jump from opposition to coalition, Supreme Court Justice Neal Hendel — one of the three justices currently on the appointments committee — suggested that the requirement to have an opposition MK on the committee, though not set down in any written statute, may amount to a binding “constitutional custom.”

It was a throwaway comment not vital to the Ilatov case. But it suggests that if Wednesday’s election of Mark to the committee is appealed to the High Court of Justice — which, of course, it will be — Mark’s seat on the committee may be taken away.

It’s a likely scenario, and it leaves the Knesset with a problem. If the second MK on the committee must come from the opposition, that leaves Yesh Atid’s Elharrar — a liberal — or Shaked.

From left to right: Justice Hanan Melcer, Chief Justice Esther Hayut and Justice Neal Hendel at the High Court of Justice on May 4, 2020. (Screenshot)

The Knesset’s acting legal adviser will be called upon to decide if a new election must be held, or, quite plausibly, if Mark’s seat gets handed down to the third-placed Elharrar.

The technicalities end here, and the upshot is enormous: If Elharrar replaces Mark — something that could not have happened if Shaked had beaten Mark for the seat — then the right loses its three-seat contingent on the committee (now made up of Mark, Hauser and Transportation Minister Miri Regev), and thus its veto on the selection of as many as six Supreme Court justices expected to be appointed in the lifespan of the current Knesset.

It loses any chance of forcing the liberal camp, which includes the Supreme Court justices, the Bar Association representatives and Justice Minister Avi Nissenkorn, to agree to a compromise that would see conservative justices appointed alongside liberal ones.

A vote for Mark was a vote for Netanyahu, for his prestige and to buttress his political position in a difficult moment. But a vote for Shaked was a safer choice for the cause of conservative judicial reform. No wonder over a dozen Likud MKs almost certainly voted for her.

Does Netanyahu really prioritize beating Shaked over appointing conservative judges to the highest court in the land?

In a word, yes.

Prime Minister Benjamin Netanyahu, right, speaks with Justice Minister Ayelet Shaked in the Knesset, December 21, 2016. (Yonatan Sindel/Flash90)

In fact, Shaked ran for two seats on Wednesday, and lost both. She was also a candidate for the panel that appoints rabbinic judges. There were three candidates for the two available slots on that panel: United Torah Judaism’s Israel Eichler, Labor’s secularist and staunchly feminist Merav Michaeli, and Shaked.

Eichler won 83 votes, Michaeli 66 and Shaked just one behind her with 65.

Michaeli’s 66 votes could not have been cobbled together without right-wing votes swinging her way. One can imagine a right-wing MK feeling torn between the conservative Shaked and Netanyahu’s representative Mark. But Michaeli is an unabashed leftist, a supporter of the more activist liberal camp. She did not garner right-wing votes on ideological grounds. MKs were pressured by Netanyahu to back one of the most outspoken left-wing voices in the Knesset — just to deny Yamina a win even in the narrower domain of the rabbinical courts.

Wednesday wasn’t the first time that Netanyahu’s political interests failed to overlap with the ideological right. From his perspective, Wednesday’s result has no downsides. Netanyahu’s views on the court are less conservative than Shaked’s. For all his posturing, he’s less worried than much of the rest of the right wing about the possibility that more liberal judges might be appointed in the coming term. And if the High Court really does overturn the Knesset’s choice of Mark, handing the deciding vote on the committee over to the liberal Elharrar, Netanyahu will have an effective rallying cry for the right.

And at the moment he needs all the rallying cries he can muster.

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