Israeli judicial reform nuance: Both sides have legitimate concerns - opinion

On November 21, 2013, the United States Senate changed the rules of the game. Stymied by what Democratic senators called “unprecedented obstruction” by Republicans, Harry Reid, the majority leader at the time, held a landmark vote to approve the most fundamental change to senate rules in a generation.

Simply put, the Senate would no longer need a supermajority of three-fifths (60 votes) to break a filibuster. From that day in 2013 and on, all that would be needed is a simple majority.

And what was being obstructed that the Democrats were so passionate about unblocking? Judicial appointments.

It is a story worth thinking about after President Joe Biden issued a rare statement this week about the ongoing debate in Israel over the coalition’s planned judicial reforms. Like Secretary of State Antony Blinken before him, Biden hailed the “genius of American democracy and Israeli democracy” and added that “building consensus for fundamental changes is really important to ensure that the people buy into them so they can be sustained.”

It was rare because it was the first known time that a United States president weighed in on an internal Israeli political dispute that has to do with the nature of the balance between the country’s branches of government.

Beyond being rare, it was also interesting coming from Biden. In 2013, when the Democrats voted to change the filibuster, he was the vice president and as such, the president of the Senate. He was aware of the way his party was changing the rules. Then, he didn’t seem to have a problem with it being done without a consensus.

This is not to say that Biden does not have the right to speak up if he sees something happening in Israel that he does not like. He does. After all, the foundations for the relations between the two countries rest on shared democratic values. If he feels that those are under threat then he should say something.

All that can be asked though is for a bit of proportion. It is doubtful that in 2013, he or anyone else in the Obama administration would have appreciated a foreign head of state interfering in Senate procedures and calling for a broad consensus, which is exactly what the democrats eliminated when they changed the filibuster.

SPEAKING ABOUT proportion, that is exactly what is missing from the entire debate about the judicial reforms: on the Right where Justice Minister Yariv Levin and Law Committee chairman Simcha Rothman are steamrolling ahead with disregard to the other side and in the Opposition, whose leaders – Yair Lapid and Benny Gantz – say they want a dialogue but then when offered one, create preconditions so they can turn it down.

That was a mistake. When the offer was made on Monday evening to meet, the legislation was anyhow not moving forward for another week. Lapid and Gantz could have met with Levin and Rothman and decided after just an hour whether there was common ground to seize on. Instead, by saying a flat-out “no,” they showed what they are really concerned about: losing the momentum gained from the massive protest in Jerusalem on Monday.

Both Left and Right have legitimate concerns regarding judicial reform

The problem is that for there to be proportion, people need to realize that both sides have legitimate concerns. On the Left, there is a genuine fear that if these reforms move ahead, it will spell the end of democracy and Israel will fall into an abyss. Their concern is legitimate. Some of the moves being made are extreme and need to be toned down.

On the other hand, there is a genuine feeling of disenfranchisement by a substantial number of Israelis – right-wingers, Mizrahim and haredim – who feel that the court does not protect their rights or represent their sectors in society. What happened during the 2005 disengagement from the Gaza Strip was a real trauma for some of these people that has not healed. The fact that only 11 Mizrahi judges have served on the Supreme Court out of 72 does no one any favors.

Altogether, this gives people a feeling that the court does not represent them. When people on the Left warn now that if the political class receives authority to appoint judges it will undermine their trust in the court, they should talk to some of their right-wing and religious friends. Many of them lost trust 20 years ago.

People can yell until tomorrow that this is meaningless and that just because some people feel distressed doesn’t mean that the judicial system should be changed but that is also wrong. If you want to reach a compromise, first, understand what is troubling the other side.

Take the 100,000 protestors who took to the streets of Jerusalem on Monday in an impressive protest, the likes of which have not been seen in the capital for decades. They came from all walks of life and from across our nation, waving Israeli flags and chanting pro-democracy slogans. There was little doubting their support of our democratic system. But, here is something that isn’t clear: If these people are such supporters of democracy and democratic values, how can they support the continued existence of the judicial appointments committee?

The committee is made up of nine members: two ministers, two MKs (one from the Opposition), two members of the Bar Association and three sitting Supreme Court justices. Under existing law, seven members are needed to approve an appointment, meaning that the judges, who vote as a bloc, always have a veto.

Before even getting into the question of whether it makes sense that judges appoint judges - would we want one prime minister to appoint the next? - has anyone here ever seen a transcript from the appointments committee? Has anyone ever been able to sit in on a hearing or watch what happens there like in Knesset committees? Do journalists get to report from the committee hearings and understand how the decisions are made? The answers are all “no.” How is a process that has zero openness, zero transparency and zero accountability democratic?

And then there is the argument that some people make according to which the political class is not qualified to select judges and that politicians are unethical and do not have legal experience. Without getting into specific people, this argument is confusing. We, the people, elect our legislators and they are our representatives in the Knesset. We elect them and trust them to make decisions about going to war, attacking our enemies, lowering and increasing taxes, dividing up our state budget and more. Suddenly, do we draw the line when it comes to the appointment of judges?

Then there is the issue of reasonability, the justification for why the court decided to bar Shas Chairman Arye Deri from serving as a minister. Before continuing, let me be clear: It was a stain on Israel that Deri was appointed in the first place. He is a two-time convicted criminal and should have no place in our Knesset or our government. Netanyahu never should have allowed him to be a minister.

Nevertheless, once he ran at the head of a party that was voted into the Knesset with 400,000 votes, was appointed a minister and approved in a Knesset vote, how can the court come and decide that doing so was unreasonable? With all due respect to the judges, there were 400,000 people who felt it was reasonable and another 64 members of Knesset who raised their hand in approval. Are the 10 judges more reasonable than everyone else?

Is that democratic?

WE COULD go on and dissect the other parts of the proposed reform but that is not my point. Rather, I wish there was a way to restore some nuance and proportion to the conversation, which are both sorely missing. Instead, what we have are two sides bent on not seeing the Israeli people win by reaching a compromise but rather on fighting for a victory image that will help advance their own political interests.

And while the judicial reforms are what pushed throngs of people to take to the streets, what is troubling them is less how our judges will be appointed but rather what else will come the moment that changes. Almost everyone agrees that judicial reforms are needed but the question is what kind.

What the people out on the streets fear is that this is just the beginning and that after far-reaching judicial reforms that will give the Knesset new powers. Avi Maoz will have his way with our children’s education, Deri will pass his bill to jail women wearing short sleeves at the Kotel and haredim will abolish the IDF draft bill. With checks and balances out of the way, what will prevent all of this harm to our civil rights?

And that is what this is about: civil rights. Will there be a way to protect civil rights after these reforms are instituted? That is the democracy people are worried about losing and these concerns cannot be ignored. The government needs to take them into consideration and needs to address the fears that are pushing over 100,000 people to the streets on a weekly basis.

President Isaac Herzog put forth a compromise that could be acceptable to both sides. There are other ideas out there, as well, from legal experts like Yedidia Stern of the Jewish People Policy Institute and Raz Nizri, a former deputy attorney general.

The sides need to meet, talk, negotiate and find common ground. There is only one Israel and only one Supreme Court in Jerusalem. Put aside the politics and do what the people want and find a compromise.