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Michael Oren
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Judicial reform: Right problem, wrong solution

As the threat of violence grows, all sides should accept President Herzog’s offer to mediate between the government and the court

This past Shabbat in my synagogue in Jaffa, one of the leaders of our community, a former Likud official with a PhD, told me that all the demonstrations against the government’s judicial reforms were merely the latest attempts to overthrow Netanyahu. “The fact that he wins drives the elitists mad,” he explained. “Netanyahu will never give in.” Later, during the Torah reading, a young man dressed all in black and cowering under a black hoodie, came in and stood next to me. “Netanyahu thinks he can be a dictator?” he whispered in my ear. “I will murder him.” Then, just as the Ten Commandments were recited, he turned and walked out.

Similar sentiments might have been heard in synagogues throughout the state as our society hurtles toward a confrontation reminiscent of that surrounding the 1993 Oslo Accords, an upheaval that culminated in a prime minister’s assassination. While many supporters of this government are insistent that it stick to its program and not back down, especially in the face of what they see as left-wing protests, the demonstrators have no intention of relenting. It is no incitement to say that such a showdown can easily devolve into violence.

We must recoil from that precipice, but how? Judicial reform is necessary, but problematic when advanced by a government suspected of ulterior motives, among them securing a ministerial position for a twice-convicted criminal, and promoting an ultra-Orthodox and radical rightwing agenda opposed by a great number of Israelis. An override of Supreme Court decisions based on the slimmest possible Knesset majorities and an exclusive government right to appoint all judges will effectively eliminate judicial checks on that government.

The demonstrators, for their part, are clear in expressing what they don’t want, but silent on how they propose amending a status quo that has long been unraveling. The government is addressing the right issue but the wrong way, while the opposition is skirting the issue entirely. The Supreme Court, meanwhile, has refused to acknowledge that reform is even necessary.

Yet the question remains: how can we preserve judicial review, a pillar of most every democracy, and the checks needed to protect minority rights, and prevent the emergence of a limitless government?

The question is not new. As a Knesset member for four years starting in 2015, I worked on Supreme Court reform. “The Supreme Court has come to be viewed by large segments of Israeli society as alien and even hostile,” I warned. “A widening gap has opened between the bench and the Knesset, with legislators proposing laws to bypass or override the court’s rulings. Such laws will vitiate judicial review, one of the mainstays of any democracy.”

To avert this breakdown, I proposed revising the process for choosing new judges, incorporating elements of the American system in which citizens have two opportunities — voting for a president and voting for senators — to influence the composition of the court. But rather than having all the judges selected by politicians, I recommended that seven out of the 15 judges be nominated by an independent committee, thereby ensuring diversity and minority representation on the bench. Concurrently, I supported ending the activist approach of “everything is judicable” (hakol shafit). The aim was to limit the court’s scope to strictly legal issues, and not, for example, defense matters, such as the location of the security barrier or the fate of terrorists’ bodies.

Many other ideas have been floated regarding the use of the “reasonableness” basis for overturning legislation and increasing the number of Knesset votes for an override from 61 to, say, 75. The longstanding debate over whether Israel needs a constitution and a bill of rights can and must be renewed. Open discussions on these and other related issues are crucial if we are to maintain some semblance of national unity. Unquestionably, they are preferable to the violence I witnessed firsthand working for Israel’s government in 1993.

As a veteran advocate of judicial reform, I call on the government to accept President Isaac Herzog’s offer to mediate between it and representatives of the court. I call on the opposition to come to those negotiations with positive proposals for change. The majority of Israelis would welcome such an approach, as would most of our supporters worldwide.

One of a handful of countries that have never known a second of non-democratic governance — and the only country on that list that has never known a second of peace — Israel can justly take pride in its democracy. It is the bedrock of our alliance with the United States, a bulwark against boycotts, and the only proven basis for running and defending a highly fractious and relentlessly threatened state. Democracy is one of our towering achievements and we must shield it, to the greatest degree possible, from personal and partisan politics. To the Ten Commandments we read on Shabbat, we may well add another: when teetering over the precipice, pull back and talk.

About the Author
Michael Oren, formerly Israel’s ambassador to the United States, Knesset Member, and Deputy Minister for Diplomacy, is the founder of the Israel Advocacy Group and the Substack, Clarity.
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