Judicial reforms: Proposals emerge seeking middle ground - analysis

“We will not give up until we win,” Yesh Atid head Yair Lapid said in brief remarks to reporters at Saturday night’s massive protest rally in Tel Aviv. Those eight words encapsulate much of what is wrong with the public debate over Justice Minister Yariv Levin’s planned judicial reform.

If “we win,” using Lapid’s phrasing, then the other side - meaning the half of the country who voted for the government and are interested in judicial reform - loses. And if the other side wins, and the judicial reform passes as is, then Lapid’s team - those opposed to the reform as presented - are the losers.

In either scenario, half the country - as former deputy attorney general Raz Nizri wrote in an op-ed in Globes on Friday - will feel disenfranchised.

“If the program as proposed passes as is, it will cause significant harm to the democratic character of the state and the unity of society, as millions of citizens will feel that their beliefs and world views are being completely trampled by a political majority,” Nizri wrote.

“At the same time, if the result of the struggle will be a decision for the other side, and the changes [to the judicial system] will not pass at all and the current situation will be preserved, that will also be a disastrous conclusion, as millions of citizens on the other side will feel that their democratic choice and the policies they believe in were trampled by a legal monopoly.”

The public discourse over this issue has created an atmosphere where the country’s judicial and political systems are like two trains on the same track speeding to an inevitable head-on collision. “The leaders of both systems are speaking to their ‘base,’ preaching to the converted and being intoxicated by those cheering them on,” he wrote. 

What is needed, he said, is a compromise proposal that will give each side some of what they want, but not all of what they are asking. What is needed is a proposal that reforms but does not undermine the judicial system, and which can only come about if the leaders of the sparring camps talk to each other, not shout about one another.

Though in this heated environment where people once taken seriously, such as Moshe Ya’alon, warn of a dictatorship and liken Israel to the situation in Germany in the early 1930s that brought the Nazis to power, Nizri’s words may sound kumbayah-like, they are important. Nizri did not speak only in glossy generalities but also put some ideas on the table that could serve as a basis for reaching some compromise.

What did Nizri suggest for the judicial reforms?

For example, regarding the override clause giving the Knesset the right to override a court ruling - a move that according to Levin’s proposal will need only a 61-seat majority - Nizri proposed that the court will require a two-thirds majority to override a law, and then the Knesset will need 65 MKs to override the court’s override.

Regarding the proposal that would make each ministry’s legal advisor a political appointment, Nizri proposed keeping the situation as it is today, whereby the legal advisors are civil servants not appointed by the ministers but would give the ministers authority to fire their legal advisors in “extreme” cases. His proposal would also better define the role of the legal advisors.

Regarding striking down the “reasonableness clauses” as a reason for the court to overturn government decisions - a clause used by some of the judges recently to disqualify Aryeh Deri as a minister - Nizri would limit the use of this clause to extreme cases and make it impossible for the court to use this clause to override ministerial decisions.

And, finally, regarding the all-important issue of how to appoint judges, Nizri would give politicians more of a say on the committee to select the judges, but not complete control over the process - as they would have under Levin’s proposals.

Nizri clarified that these proposals are a starting point for discussion, not set in stone. And his recommendations are not isolated. On Monday, Yediot Ahronot trumpeted a “compromise proposal” by former Justice Minister Daniel Friedmann on its front page.

There are some differences between what Nizri and Friedmann propose - for instance, Friedmann would give the president a say in appointing one or two representatives to the panel appointing judges. Nevertheless, what they do have in common is an attempt to find a middle ground;- to look not for total victory by either side, but rather to realize that the judicial reform is not an all or nothing proposition and that ways can be found to tweak a system that needs tweaking without breaking it.

Levin’s error was to put forward a proposal that would have far-reaching ramifications on the country's life without adequate discussion and to try to push it through on the back of a 64-56 parliamentary majority. A much greater consensus is needed for a change of this magnitude to be accepted and seen as legitimate.

Lapid, who on Saturday night spoke of “not giving up until we win” and dismissed earlier recommendations by National Unity head Benny Gantz for a dialogue with the government to come to a compromise, changed his tune a bit at Monday’s Yesh Atid faction meeting in the Knesset.

There, rather than speaking of “victory” at all costs, he recommended that President Isaac Herzog establish an independent presidential committee to come up with a balanced and considered proposal to reform the judicial system and regulate the relationship between the court and the legislature.

If Lapid’s suggestion is adopted, it will mirror a move taken by US President Joe Biden shortly after being sworn into office in 2021. Just before the election, the Republican-led Senate voted to confirm then-president Donald Trump’s nominee for the Supreme Court, conservative justice Amy Coney Barrett. This appointment solidified a conservative majority on the court and triggered calls to Biden to expand the nine-seat Supreme Court to 13 justices to “pack the court” and ensure a liberal majority.

In April 2021, less than three months after being sworn into office, Biden established a bi-partisan presidential commission to look into reforming the US Supreme Court, the number of justices on the bench, the court's role in the Constitutional system, the tenure of judges, and the way the courts selects cases to hear. The commission issued its 280-page report eight months later but held off giving unequivocal recommendations on the hot-button issues. So far, those recommendations have not been acted upon.

A similar presidential commission established by Herzog could be a way out of the current Israeli impasse. 

However, it will necessitate leaders on both sides of the divide being able to realize that the good of the country is not served by fighting to the death over this issue, and that rather than trying to score a knock-out -- either by pushing through the reform without a broader consensus, or claiming that any attempt to reform is anti-democratic -- they must realize that a dialogue is needed to come up with a proposal that most people can live with.

If Labor Party head Merav Michael’s response to the Lapid suggestion is any indication, this will not be an easy task.

“We will not agree to compromise on democracy,” she said at a Labor faction meeting. “Two hundred thousand demonstrators do not want an independent committee; they don’t want to negotiate with an accused man [Netanyahu], and they are correct.”

Michaeli continued: “We are saying unequivocally: no compromise with Netanyahu, no negotiations with Netanyahu, no nice offers to Netanyahu, no bowing down before Netanyahu.”

In other words, total victory. One side wins, and the other loses.

But that’s not victory if the side that feels it is losing is one’s fellow citizens. One should not want to beat one’s countrymen, but be able to live alongside them. The way to do that - something that both the government and the opposition need to internalize - is not to fight for a complete victory, at all costs.

This is why the Nizri and Friedmann proposals are so refreshing; they represent steps toward finding a middle ground.