Bryan Schwartz
Law Professor, Author of "Sacred Goof" and "Consoulation: A Musical Mediation"

Judicial Reform: Losing by Winning

The coalition that is “winning” on judicial reform is defeating Israel and itself.

Don’t get me wrong. A push for judicial reform could, with good will and careful deliberations, have a highly positive and enduring outcome. There are valid points on both sides of the debate.

In two recent Times of Israel l blogs, I tried to address the concerns on both sides and suggest specific ideas on how everyone can come out ahead. Right now, everyone is instead headed for a profound loss.

The negotiations textbooks do say it can be effective strategy to proceed like this. Take a hard line, bend not at all until the very end, and even then as little as possible. End result: a sweeping victory.

If you are in the governing coalition, perhaps you think it will play out this way. You would be mistaken. You will not “win” by achieving slightly-less-than-extreme outcomes.

You will end up with a large part of your own population feeling demoralized and embittered. This includes many Israelis who vote, pay taxes, serve in the armed forces and stay in Israel despite all the challenges.

The legal stature of Israel abroad will be damaged. Try battling the hectoring and vilification from international agencies when you have made your own High Court a shell of its former self.

You will not “win” by undermining confidence in the Israeli economy domestically and abroad. A weaker Israel economically is a weaker Israel diplomatically and militarily. That is what Prime Minister Netanyahu has always said.

You will not have a robust High Court as a check and balance when a left-of-centre government is in power. You think that will never happen? You might be out of office sooner than you think if you keep pushing such a one-sided proposal. Many of your own voters are opposed.

You will not win by making it almost impossible to strike down legislation, even in the face of an earlier Basic Law. What about the Basic law on Israel as the Jewish Nation State? Should that Basic Law not have some real staying power, some real effect?

You will not win by achieving logically contradictory results. You want more control over appointments? You want the composition of the court to be more inclusive? All right, suppose the appointments process becomes better by your own lights. Why then are the members of the High Court still so uncredible that you cannot abide by the ruling of a simple majority of them?

Why do you think you need the power to override Basic laws if in practice there will be no court rulings to override? The High Court will be effectively rendered incapable of upholding Basic Laws in the first place.

You are Jewish traditionalists? What happened to the Talmudic principle that all judges are equal, and the majority prevails?

Was the ancient tradition enthusaistic about absolute secular power? No. Even King David has prophets to tell him when he was wrong.

You resent some of the previous ruling elites? Resentment is an emotion not a principle. The Talmud teaches against holding grudges. When it is your turn to be in charge, you are supposed to act better. The morale of the Exodus story is that the oppressed learn righteousness, not payback.

You say compromise can come at the last minute? Do you really think a stable, broadly-accepted middle ground will be achieved when your negotiating “partners” are trying, at the last minute, to salvage a few scraps from an impending disaster? Having pushed such an unbalanced initiative so far and so long, will you really be able to retreat to a middle ground without angering your own base?

You believe that Israel is the defender of Jews throughout the world? Let me tell you, it is beyond brutal out here. I am not sure some of you have any idea. The level of anti-Israel and anti-Jewish bigotry is at a height I have never seen in my lifetime. Don’t give them more excuses. Isarel’s status as a democracy with checks-and-balances is essential to those defending it.

You can actually achieve your legitimate goals. You can do so in a way that secures broad support, within and without Israel. But you have to stop pushing headlong towards your own temporary victory and everyone’s enduring defeat.

“You” here includes Prime Minister Netanyahu. I am addressing myself to you, and I hope you will consider what I have to say.

I believed you when you said your mission was the safety of Israel and that you believe in a balanced democracy. That requires solidarity within Israel and support from abroad.

But right now, you instead appear to be publicly exultant while the coalition you assembled propels itself towards crushing both its “adversaries” and itself.

What is indispensable is solidarity and commitment among the Israeli people, not the leadership of any one man. There came a time for even Moses to leave.

Maybe you are restricted in how much you can intervene because of your own legal troubles. Maybe it is not fair that they have been placed on you in the first place. But if you cannot govern effectively on an issue of that imperils the nation, then you should step side. Put your principles and people ahead of your pride. No one can stop you from resigning; that is a powerful tool you have no matter what. Tell your party you cannot any longer be part of a process so divisive and self-defeating. They can either stop pushing and start talking – or they can push through their opposition and over the cliff without you.

If an ordinary soldier can give his entire for his people, you can sacrifice some years in office. It could be your most magnanimous and important act of leadership.

About the Author
Bryan Schwartz is a playwright, poet, songwriter and author drawing on Jewish themes, liturgy and more. In addition to recently publishing the 2nd edition of Holocaust survivor Philip Weiss' memoirs and writings titled "Reflections and Essays," Bryan's personal works include two Jewish musicals "Consolation: A Musical Meditation" (2018) and newly debuted "Sacred Goof" (2023). Bryan also created and helps deliver an annual summer program at Hebrew University in Israeli Law and Society and has served as a visiting Professor at both Hebrew University and Reichman University.  Bryan P Schwartz holds a bachelor’s degree in law from Queen’s University, Ontario, and Master’s and Doctorate Degree in Law from Yale Law School. As an academic, he has over forty years of experience, including being the inaugural holder of an endowed chair in international business and trade law,  and has won awards for teaching, research and scholarship. He has been a member of the Faculty of Law at the University of Manitoba since 1981. Bryan serves as counsel for the Pitblado Law firm since 1994. Bryan is an author/contributor of 34 books and has over 300 publications in all. He is the founding and general editor of both the Asper Review of International Business and Trade Law and the Underneath the Golden Boy series, an annual review of legislative developments in Manitoba. Bryan also has extensive practical experience in advising governments – federal,  provincial, territorial and Indigenous –and private clients  in policy development and legislative reform and drafting. Areas in which Bryan has taught, practiced or written extensively, include: constitutional law, international, commercial, labour, trade,  internet and e-commerce law  and alternate dispute resolution and governance. For more information about Bryan’s legal and academic work, please visit: