No decision has been made yet, but even the leaking of his name over the weekend and the fierce reaction of the haredim tell us something.
First, no decision has been made because the cabinet just voted on the issue on Sunday, and by the afternoon had not yet officially asked Chief Justice Esther Hayut to select someone.
Once Hayut is asked, she will review the potential candidates and make a relatively quick decision, given the huge public interest in the issue.
That Rubinstein’s name was leaked probably means that some in the political class want him in charge, and were floating his name as a trial balloon.
As one of the few retired Orthodox Jewish High Court justices, Rubinstein would appear to be an excellent pick for non-haredim, to insulate the state inquiry from being attacked for being anti-religious.
He also has far more political experience than many other justices, having served as attorney-general and cabinet secretary, and handled complex geopolitical negotiations for peace with Egypt, Jordan and other countries.
The haredi reaction could be viewed as bizarre: an attack on Rubinstein – a learned and observant Orthodox Jew who went out of his way to interject traditional Jewish law in his modern legal decisions – as “alienated” from religion.
Their reaction should be seen more as a reflection of their experience with Rubinstein as a High Court justice, as opposed to his personal religiosity. And what do Rubinstein’s High Court decisions say about the values he might bring to a Meron probe?
Compared with other High Court justices, Rubinstein can be seen as a moderate-conservative justice.
In a December 2015 decision on Israel’s controversial policy of demolishing only the homes of Palestinian terrorists, Rubinstein gave blanket deference to the security establishment’s view that home demolitions are necessary and constitutional, rather than merely a tool for catering to populism after terrorist attacks.
In the area of security, Rubinstein’s focus on Israel being “the only living democracy threatened for its existence by its neighbors” meant that deference in this area was important.
Rubinstein also showed his colors as a moderate conservative on various issues where long-term issues of state and politics intruded.
One example was the Anti-Boycott Law, aspects of which the Supreme Court, including Rubinstein, approved in April 2015 by a 5-4 majority.
The law permitted various legal retaliation by private individuals against left-wing groups for calling for boycotts against either Israel or the settlements.
Some justices expressed sympathy with a boycott that only targeted the settlements as opposed to Green Line Israel. Rubinstein had no such mixed feelings, and was ready to uphold the law’s attack of boycotting the settlements unapologetically.
Showing off his religious bearings, he invoked the words of the Passover Seder that boycotts represent a strain of antisemites “who rise up against us to destroy us” in every generation.
But his rulings on religion and state were overwhelmingly liberal. Some in the haredi sector referred to him as their nemesis even more than some secular justices, who might be more deferential simply by being less familiar with religious attitudes.
Whether on mikvaot ritual baths, conversions, or gender segregation on buses, the vast majority of his rulings favored the rights of non-Orthodox and secular Israelis.
So in a sense, haredim may not like someone like Rubinstein leading the state inquiry because he would be more formidable: they know that the commission is likely to be critical of some of their leaders who had authority over aspects of the Meron disaster.
In which case they would likely prefer someone who is secular, so they can more easily label the inquiry as an anti-religious crusade.
The bizarre attacks on Rubinstein betray a likely haredi fear that in the eyes of the wider public, his criticism will be seen as credible, genuine and potentially coming with religious overtones against those with responsibility who committed religious sins.
The current haredi leadership may also think of Rubinstein as aggressive with probes, if they are familiar with his recent criticism of former prime minister Benjamin Netanyahu for deciding to remain in power after his January 2020 indictment, and for trying to claim immunity.
They may be less familiar with Rubinstein having closed probes against Netanyahu in 2000, overruling a police recommendation to indict him for bribery.
In other words, he is not afraid to let a big fish off the hook if that is where the facts take him: Rubinstein also let off Shas party leader Arye Deri in the “Bar-On Affair”; was the attorney-general when Deri was convicted and sent to jail; and moved to prosecute president Ezer Weizman and other top public officials.
In short, Rubinstein’s decisions were all over the place, and that worries the haredim.
Whether the chief judge of the committee is Rubinstein is not the main problem for haredi public officials, but rather the existence of the state inquiry itself.
Whoever will lead it will be given the power to publicly blame public officials, and that was the one thing haredi officials, and Netanyahu for that matter, wanted to avoid at all costs.