Zev Farber

A Conversation I Overheard on the Judicial Overhaul

Here is a conversation I overheard last night in a Jerusalem pub between two right-wing politicians on opposite sides of the judicial reform question. For the purposes of anonymity, I will call one of them Your Good-ole Likudnik (YGL) and the other Generic Man with Sense (GMS). The translation is my own:

YGL: Finally, tomorrow, we will pass the judicial reform. This is what the country needs.

GMS: How can you say that? This reform will strip basically everybody but the ruling majority of their rights.

YGL: You guys always harp on that. What are you a leftist now?

GMS: Obviously not, you’re just trying to avoid the question. How will people’s rights be protected under this new system?

YGL: Rights?! That’s just one small piece of the puzzle. Do you think it is okay that the Supreme Court has the power to appoint its own successors?

GMS: You forget, that I was also once the Justice Minister. You can’t use fake arguments like that on me. I know that Supreme Court justices get appointed by a committee made up of judges, members of the bar, and politicians.

YGL: Fine, sorry, I got carried away there. Well, do you think it’s ok that the judges have a veto? Even worse, between the judges and the members of the bar association, who obviously want the judges’ approval, there are enough votes to appoint whomever they want. Do you think that’s fair?

GMS: Ok, so why don’t we propose an adjustment to give the politicians equal power, so they both get a veto? Maybe we can also drop the bar association people altogether.

YGL: I’ve got a better idea: Why don’t we give the politicians the power to appoint the judges directly?

GMS: But then the Knesset would control the judiciary.

YGL: Exactly.

GMS: That doesn’t really seem balanced to me.

YGL: See, you are a lefty.

GMS: And why, may I ask, do you want to give a simple majority in the Knesset an override power over Supreme Court decisions? Doesn’t that essentially end judicial review?

YGL: Does it make sense to you that the Supreme Court can judge anything they want, even if there is no case brought before them by someone who was hurt by the law?

GMS: So you want to go back to a model that ensures the court is adjudicating and not legislating. Is that right?

YGL: Yes.

GMS: So why don’t we work just on that and tweaking the committee? Why the 61-majority override clause, which ends judicial review and the rights of minorities?

YGL: It’s like you’re obsessed with human rights or something.

GMS: It’s kind of the whole point of the court.

YGL: The court! Did you know that in 1999, Aharon Barak ruled that Prime Minister Netanyahu could not close the PLO offices because elections were only a few months away?

GMS: Yes, I did know that, and I don’t think it was a good decision, but isn’t bringing that up just a distraction? I want to know what will protect minority rights in your new system.

YGL: You’re just like Aharon Barak. You don’t understand democracy. The majority votes, the majority rules, why should minorities have rights?

GMS: So what happens if the Knesset votes to make it illegal for Arabs to vote or own businesses in Israeli towns?

YGL: We wouldn’t do that.

GMS: Or make homosexuality a criminal offence?

YGL: We wouldn’t do that.

GMS: Or make every form of Judaism that isn’t Orthodox illegal?

YGL: We wouldn’t do that.

GMS: Or make it against the law to drive on Shabbat or open a business anywhere?

YGL: We wouldn’t do that.

GMS: Or take away women’s right to vote? Or require them to dress modestly in public? And go to mikvah every month?

YGL: We wouldn’t do that.

GMS: But if you did?

YGL: Why obsess about what ifs? I have a pinky swear from the Prime Minister himself that he won’t do any of those things. Shouldn’t that be enough?

GMS: Not remotely, no.

YGL: So you’re calling the Prime Minster a liar? That’s basically like saying we should remove him from office. That’s basically a call for violence, for a coup.

GMS: No it is not; it is political opposition.

YGL: You’re becoming a danger to the state the way you’re talking. We might have to throw you in prison with Mandelblit (former AG) and Hayut (current head of supreme court) and all the other traitors.

GMS: Why don’t you make a law against speaking in opposition to the government?

YGL: We’re planning to, right when we make the overhaul.

GMS: Why not just declare the opposition parties seditious and make it illegal to vote for them?

YGL: That’s a good idea. Maybe we will.

GMS: The PM didn’t pinky swear against that?

YGL: No, not on that one. (Here he laughed a bit.) So I suggest you just sit back and accept what’s coming. And stop worrying about Arabs, women, LGBTs, or the non-religious. They’re totally safe. Stop being such a lefty.

GMS: But let’s say that, somehow, in some crazy universe, the members of some future ruling coalition, less user-friendly than you all, do make laws that violate people’s rights? In this obviously totally imaginary universe, what redress do they have?

YGL: They can still petition the Supreme Court to overturn the law.

GMS: But how, if the Supreme Court has no way to override a Knesset majority?

YGL: That’s a lie! All you lefties are always lying! I have an override clause in my proposal.

GMS: Great. How does it work?

YGL: If the members of the Supreme Court vote unanimously against the law, they can override.

GMS: Unanimously?

YGL: Yes.

GMS: And this same Supreme Court, it is made up of people chosen by the revised committee you are proposing?

YGL: Yes.

GMS: The one appointed by the ruling coalition?

YGL: Exactly.

GMS: Doesn’t that seem like a problem to you?

YGL: No, it seems ideal.

GMS: I guess it would.

About the Author
Dr. Rabbi Zev Farber is a research fellow at the Shalom Hartman Institute's Kogod Center. He is also the senior editor of and a novelist (writing as Z. I. Farber).
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