Editorial

Save the Supreme Court's Seniority System

Though she preaches about separation of powers, Justice Minister Shaked seeks to intensify the political system's hold on the judicial branch with a harmful new reform.

Justice Minister Ayelet Shaked’s campaign to destroy the Supreme Court has moved up a level.
Justice Minister Ayelet Shaked’s campaign to destroy the Supreme Court has moved up a level. Mark Israel Salem

Justice Minister Ayelet Shaked’s campaign to destroy the Supreme Court moved up a level on Tuesday. Yedioth Ahronoth reported that Shaked is seeking to cancel the seniority method through which until now the Supreme Court president has been chosen. According to the constitutional custom observed since the state was founded, the new Supreme Court president is the justice with the most seniority on the day the previous court president retires.

As with her other destructive proposals, Shaked’s suggestion isn’t original; the political system in recent years has often chosen to intervene in the changing of the guard at the helm of the High Court, generally during the sensitive period before the retirement of the incumbent. Other justice ministers who didn’t have in mind what’s best for the judicial system or the rule of law altogether have tried to tinker with the system.

Haim Ramon did so regarding the appointment of Dorit Beinisch to replace Aharon Barak. Later, the Knesset chose to pass the “Grunis law,” which allowed Asher Grunis to be appointed court president even though he was to serve less than three years until reaching the mandatory retirement age of 70 (undoing a restriction had been written into a law promoted by the previous justice minister, Daniel Friedmann).

The timing of Shaked’s announcement is no coincidence either. This October current Supreme Court President Miriam Naor is retiring, and she is meant to be succeeded by Justice Esther Hayut. Though she preaches about separation of powers, Shaked is actually working to intensify the hold of the political system on the judicial branch, rather than freeing it to be an independent authority alongside the other branches of government.

The seniority system has two main inherent benefits. The first is that once a judge is appointed to the Supreme Court, he or she no longer has a need to compete for any future judicial post; he or she has no need to try to solicit the support of members of the Judicial Appointments Committee and there is no incentive to rule in a manner that will please politicians. The second benefit is that it eliminates competition among the justices, which facilitates their working harmoniously, with both agreements and disputes based solely on the merits of legal arguments and not on personal issues.

Those level-headed forces that still remain in the government with regard to the rule of law – most especially Prime Minister Benjamin Netanyahu and Finance Minister Moshe Kahlon – must now stand firm against the justice minister’s threats. They have a responsibility to act in a statesmanlike manner and block Shaked from implementing her harmful ideas.

At the same time, all the Supreme Court justices must announce that they will not compete against Hayut for the court’s top spot. In Israel’s constitutional tradition there is no constitutional custom more deeply rooted than this one. Anyone who champions a conservative judicial approach must respect it.