In a drama worthy of a TV series, the pressure on the Israeli government to either proceed or abandon judicial reform legislation resulted in a cliff-hanging non-event: The reform’s prime movers agreed to a pause or freeze or cessation of the legislative process starting March 27 and extending until the Knesset returns in May from its post-Passover recess.
Depending on one’s perspective, the cessation can be viewed as a victory for the protests against the reforms, a face-saving time-out for the coalition or a chance for all concerned to reassess and reapproach the issue.
This final possibility might be seen as naive or wishful thinking. Other than Benny Gantz, none of the opposition leaders have shown any interest in discussion, let alone negotiation. However, I would humbly suggest that the pause might be a major opportunity for proponents of the reforms.
This is because the hiatus gives supporters time to make the case for reform: The straightforward but detailed case that the Israeli Supreme Court has abused the judicial process and change is necessary to restore democratic sovereignty, a more equal balance between the branches of government and, ultimately, a more accountable and trustworthy Court.
Sadly, making this case was something that needed to be but was not done before the proposed legislation was introduced.
In a recent webinar I hosted with Eugene Kontorovich of the Kohelet Policy Forum and American Judge Michael Mukasey, my guests presented a long list of the Court’s abuses.
It included the complete untethering of the Court’s decision-making from any objective standards or the criteria scrupulously employed by other Western judiciaries. The Court’s embrace of an amorphous standard of “reasonableness” means the Court has arrogated to itself sole discretion and a self-referential standard in order to determine the outcome of any given case.
This is oligarchic despotism in its purest form. At least the Iranian mullahs have the Quran to reference in their fatwas. The Israeli Supreme Court has a “because I say so” standard that cannot engender much trust, except among those whom the Court reliably supports: non-Jewish minorities.
If handled properly, the hiatus could be the proverbial pause that refreshes. What would be refreshed is awareness of the seriousness of the problem.
Most opponents of judicial reform think the reforms are a cynical effort to replace sagacious, non-biased, independent judicial review with hack appointments who will do the bidding of their legislative masters.
Such a view betrays a profound ignorance of how courts function and attributes controlling malevolence to elected officials. The history of judicial appointments by presidents of the United States, however, clearly shows that a) there is very serious interest in appointing highly qualified individuals, and b) there is a long tradition of presidential disappointment with their own appointments, as justices inevitably go their own independent way.
I have no doubt that the same will apply in Israel, assuming the selection process for justices can be uncoupled from the self-selecting process now in place. The quality of justices will not change. What would change is the ideological and social uniformity of those justices.
One would think that progressive opponents of reform, those who embrace diversity as a religion, would love to see the same apply to Israel’s Supreme Court. It would be the Israeli equivalent of what liberal U.S. Supreme Court Justice Sonia Sotomayor famously said: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”
Instead, the opposition is clinging tenaciously to the uniform makeup of the Court, which not only hasn’t lived the life of most Israelis, but cannot even fathom what that life might entail.
The very detailed list of judicial abuses and self-serving, ideologically-oriented stances taken by the Court can and needs to be presented to the public before the Knesset returns and the legislation is reconsidered.
Let’s be realistic: The protests will continue because the hardcore left smells blood in the water. Their real goal has little to do judicial reform and much to do with bringing down the government. Agreeing to negotiations is a tacit admission of the need for change, which the hardcore left sees as completely self-defeating.
The real hope is that, as they have often done in the past, the hardcore left overplays their hand. By showing the truly concerned, non-ideological protesters what their true agenda is, the hardcore left could further the cause of reform by strengthening the hand of those like Gantz who are interested in finding a solution that promotes the public interest.
Labor Party leader Merav Michaeli summed up the hardcore left’s inflexibility: “The coup d’état laws must be finally and completely scrapped and shelved. Consign this abomination to the dustbin of history.”
Let’s hope that reform proponents seize the day and embark on a campaign to educate, enlighten and open the eyes of Israeli citizens to how much judicial reform is required. We will all be better off for it.
Douglas Altabef is the chairman of the board of Im Tirtzu, Israel’s largest grassroots Zionist organization, and a director of B’yadenu and the Israel Independence Fund.