Why have Israel's judicial reform talks broken down – and what’s next?

Israel may be on the precipice of another period of tumultuous protests and political strife, as judicial reform talks have been frozen by the opposition and the government coalition is set to launch a reform bill on Sunday.

The judicial reforms, first proposed by Justice Minister Yariv Levin in January, had its legislation frozen in March after waves of increasingly crippling protests rocked the country. Until last Wednesday negotiations on a broad agreement were being held at the President’s Residence between opposition and coalition representatives.

To understand how talks broke down and what is coming next for the reform, The Jerusalem Post spoke to Na’ama Schultz, a representative for Yesh Atid at the President’s Residence negotiations and adviser to opposition leader Yair Lapid, and Religious Zionist MK Simcha Rothman, chairman of the Knesset Constitution, Law and Justice Committee and leading force behind the reform.

What caused judicial reform talks to fall apart?

The opposition froze its involvement in the reform negotiations last Wednesday following the election of Knesset members to the Judicial Selection Committee. The composition of the committee is one of the most hotly contested provisions of judicial reform. The coalition wants to add more elected officials to make it more democratic, and the opposition wants to create a balance with professionals to avoid politicization.

In recent weeks, some coalition members called to appoint two coalition MKs to the committee instead of one from both sides of the aisle in accordance with tradition, and still others sought to delay the votes altogether. In the end Yesh Atid MK Karine Elharrar was voted onto the panel, and no coalition member was appointed.

This was not cause for the opposition to celebrate, as Schultz explained that while it was true that she was elected, they didn’t want symbolic victories but to see the committee convened and to begin working. The government did not convene the panel following the election, and it would likely take another 30 days for another vote to choose a second Knesset representative.

“We want to establish the Judicial Selection Committee so that it can choose professional and worthy judges so that we are able to fill all the missing positions and can spare the public in the courts the legal torture that results from, among other things, these deficiencies,” said Schultz. “Electing representatives is not itself the objective, it’s the means.”

Rothman said that freezing the talks over the committee wasn’t a serious approach.

“There were times in the past that after the committee was formed, it wasn’t convened for 11 months,” said Rothman. It [freezing the talks over the committee] was a trick, just like the demands to cease legislation.

Lack of faith

A major factor in the breakdown of talks appeared to be lack of faith and trust. Both Schultz and Rothman expressed how the opposing side had largely not been genuine in its approach to the negotiations.

“I don’t know any serious person in the coalition, and most people in the opposition, who think that the talks at the President’s Residence were in good faith,” said Rothman.

Rothman recalled that he had spent hours trying to negotiate with professors, experts and opposition members, but they had refused to make their own offers to what they thought should be the outcome, even when given a blank slate. If they were willing to propose changes to his formulas, the opposition was not willing to endorse the modified bills. He explained that this showed that achieving solutions was not the goal; political attacks were. In contrast, he said that the coalition had shown its willingness to negotiate by changing the judicial reform bills in line with the opposition’s proposals.

“I knew from the beginning, there is no one to talk to there,” said Rothman. “Sadly, I knew that their political interest was what was getting the streets burned.”

Schultz described the good faith of the opposition as clear from the outset when she was selected for the negotiation team.

“When you choose the people to represent you, it indicates a lot about the intention,” said Schultz.

Schultz said that Lapid understood the great responsibility in his role as opposition leader, and wanted to reach agreements out of this sense of duty – out of concern for Israel’s society, economy, security and diplomatic relations.

“On the other hand, we knew all the time who we were dealing with,” said Schultz. “This is one of the reasons that we didn’t reach an agreement – we demanded proof of commitment to the process. Not in words – in deeds.”

Schultz said that the proof that they wanted from Prime Minister Benjamin Netanyahu was a proper election process for the Judicial Selection Committee.

“To our great sorrow, we discovered that even if the prime minister had the will to meet this agreement, the prime minister is very weak. There are those in the coalition who exploited this; at the first opportunity that their intentions were tested, we learned that our fears were justified,” said Schultz. “The prime minister was blackmailed by extremist elements in his coalition.”

Rothman said that Netanyahu had expressed good faith for the negotiations in the form of a legislation freeze.

“Netanyahu gave them a chance,” said Rothman. “I did not agree, but he did it anyway. And I respect his authority to do so.”

Rothman argued that the opposition was saying that there were no agreements on reform provisions in the face of his new bill, but that there were agreements when they wanted to make demands about the Judicial Selection Committee.

Both sides said that the other side had ulterior motives for engaging in the negotiations.

The opposition’s presence at the President’s Residence was a boon to Netanyahu, explained Schultz. He could reap the economic and diplomatic benefits of perceived stability and be able to pass the budget in peace in late May.

Rothman argued that the antagonism against the judicial reforms was motivated in response to a lost election, and that the opposition consequently wanted to impede governance.

This is not to say that all the talks at the President’s Residence were seen as unproductive or in poor faith.

“At the President’s Residence there were very serious discussions. There are differences between the many voices in the coalition; not everyone speaks with the same voice,” said Schultz.

Schultz pointed to Strategic Affairs Minister Ron Dermer as a statesmanlike figure who acted fairly and was interested in a solution.

Were negotiators close to an agreement?

While there were no agreements reached through the talks, Schultz said that real progress had been made on several issues.

“There was an understanding that we needed to regulate the status of Israel’s Basic Laws, and we needed to create a long-term solution and not a political solution of small legislative amendments,” said Schultz. “Something that will give stability for the next hundred years, and infrastructure for a constitution.”

Rothman said that he had been at the President’s Residence many times, and that President Isaac Herzog had said himself that there was wide agreement on many issues – though he noted that Herzog later said otherwise.

“I was part of those agreements, and there were wide agreements before on most of the issues, and then suddenly there are no agreements,” said Rothman.

Schultz said that nothing was said as an agreement because the opposition was concerned that the coalition could take a near consensus issue discussed in the negotiation room and implement it unilaterally. She said that this fear was realized in the current situation with a new reform bill.

Rothman said that the coalition was moving to pass a judicial reform bill starting Sunday that was born out of consensus on the reasonableness doctrine, from both within the President’s Residence and without. It was even in Gideon Sa’ar 2021 election platform, he noted.

“This is a consensus,” said Rothman. “It was agreed at the President’s Residence. It was in the president’s offer when he put forward the ‘People’s Outline.’ It’s in there. Everyone agrees that it needs to be done.”

A new reform bill

The reasonableness doctrine allows a court to engage in judicial review of government administrative action deemed beyond the scope of what a responsible authority would undertake.

The new bill would prevent the courts from using the reasonableness doctrine in judgments against the decisions by elected officials.

“You cannot run a government when other people tell you that what you’re doing is reasonable and not reasonable based on their own personal views and not based on any standards,” said Rothman.

Rothman said that it was unacceptable that the court could interfere with matters such as political appointments; it would be unheard of for the US Supreme Court to remove Secretary of State Antony Blinken from his position.

Many lies were being told about reasonableness and the bill, Rothman said, but he urged citizens to read the bill. Reasonableness is an extremely problematic principle, in large part due to its subjective application.

Schultz said that those who cooperated in the Law Committee discussion on the new bill on Sunday would be cooperating with a coup.

The reasonableness bill is a dangerous precedent to Schultz, who said that other reform provisions would soon follow. She described the bill as Deri Law 3, referring to other bills ostensibly designed to allow Shas chairman Arye Deri to resume a ministerial position despite his past criminal convictions. A High Court of Justice decision had declared his appointment unreasonable.

Why not advance old bills?

Rothman said that the bill wasn’t being advanced in response to the opposition’s demands, but because he always thought that’s how it should be done.

“I think it’s also a test case for the opposition, because if the opposition is serious that they want to reach consensus and to get to agreements... you don’t need to take extreme measures,” said Rothman.

When asked why he didn’t reactivate the already started bills on the Judicial Selection Committee or judicial review, he said that it was a matter of consensus.

“I think it’s the most agreed upon issue,” Rothman explained.

Schultz said about the drafting of the bill that “all that is different is that they changed the tactics and want to pass it in half a year instead of a one-month blitz.”

Will Israel see a resurgence of protests?

Schultz said that the new bill should be seen not as a reason for reasonableness, but as a reason to return to street protests. She doesn’t know if there will be protests at the level of what was seen from January to March, but she is in favor of them.

“I’m not part of organizing the protests, I’m part of the public that participates in the protests, but if it depends on my sentiment – then yes,” said Schultz. “This is exactly the time for the public to return with all their might and do their part.”

Rothman said that he doesn’t know if there will be protests, and questioned how they originally were sparked.

“I don’t know what brought the protest to begin with,” said Rothman. “I know [there was] a lot of money and a lot of lies. They can tell all the lies in the world.”

Will the two sides return to the table?

With a bill moving forward and broken trust on both sides, there seemed little hope on Thursday that the two sides would return to the table. Rothman harbored some hope that the new bill would push the opposition to act more conciliatory.

“I have to say my personal high hope is that passing this will bring some reasonable people in the opposition to start acting like political players and not like anarchists that want to torch down the State of Israel,” said Rothman.

Schultz refrained from saying what conditions might bring the opposition back to the table. With the new bill and an inactive Judicial Selection Committee, she saw no point in engaging in hypotheticals.

“If the coalition comes to its senses and slows down, maybe it [negotiation] still has a chance,” said Schultz.

Schultz is optimistic, but not about the negotiations. Instead, her hope lies in how much the public cares about the issue.•