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Gerald M. Steinberg
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We need a way out of the judicial clash, not more angry rhetoric

The open letter by Gordis, Friedman and Klein Halevi is misleading and dangerously over the top

I have a great deal of respect for Daniel Gordis, Matti Friedman and Yossi Klein Halevi. Their contributions as articulate and passionate Zionist voices, standing against the chorus of ignorance and hate, are invaluable. 

But I strongly disagree with their “letter to Israel’s friends in North America.” Like most of the debate over the new government’s proposals to restructure Israel’s legal system, their rhetoric is dangerously over the top. 

Instead of contributing positively by suggesting possible paths out of this self-destructive cycle, they became part of it. And in contrast to adding their influential voices to the attempts by both sides to portray the other as entirely lacking in legitimacy, those who take this crisis seriously should begin by acknowledging and addressing real concerns. 

For opponents of the proposals, in part or in all dimensions, this means recognizing that many Israelis – perhaps the majority – view the judicial branch of government as a closed elite framework, detached from Israeli reality. From this perspective, the judges exert immense political power, which is outside the system of democratic checks and balances. This power is not grounded in a written constitution, which due to historical reasons, Israel does not have, but, according to critics, has been illicitly accrued over many years. 

Had Gordis, Friedman and Klein Halevi addressed this core issue, and gone on to explain their opposition to the proposed solution, their contribution would have added some light to offset the heat. Unfortunately, however, this is not their objective. 

Furthermore, opponents of reform, including Gordis, Friedman and Klein Halevi, falsely attribute the entire plan to Prime Minister Netanyahu, and blame him for “stoking hatred and schism.” In fact, the criticisms, expressions of alienation, and proposals for reform (or revolution) have been a growing part of the Israeli public debate for two decades. Among other deeply-held accusations, legal elites and particularly the High Court are viewed as giving advantage to well-connected political causes and unaccountable NGOs, often supported by foreign governments.

The blanket and often arrogant rejection of all criticism and moderate proposals to address these issues have added to the anger. Justice Minister Yariv Levin has devoted many years to attempts to correct what he and others see as a dysfunctional judiciary. By focusing on Netanyahu, and painting him as following the sinister anti-democratic maneuverings of the Hungarian and Turkish leaders, the critics are badly misrepresenting this conflict. 

Instead of joining this distorted zero-sum confrontation, and after both sides acknowledge the legitimacy of the other, we can start climbing down from the precipice. Amidst irresponsible talk of civil war, we urgently need respected public figures who can point toward a compromise. 

Dialogue and negotiations between the opposite ideological camps, as supported by President Herzog, can start with the easier dimensions of the complex reform proposals. Specifically, and unfortunately absent from the analysis published by Gordis, Friedman and Klein Halevi, the obvious and long overdue changes in the mechanism for selecting judges should be the first topic.

The current system, thrown together in 1953 by a Knesset subcommittee, is responsible for perpetuating the closed judicial elite. The nine-member committee meets in secret, in sharp contrast to the often bitter US Senate hearings that are broadcast live. Three of its members are sitting judges on the High Court. And two are from the Israel Bar Association – an organization with no democratic accountability. (The IBA’s current and previous heads were in the headlines for moral failures – hardly an advertisement for the integrity of the current system.) The four others are MKs and government ministers – a minority that is accountable to the voters, and often sidelined. 

For these reasons, it should be relatively straightforward for serious people on both sides to focus narrowly in order to reach agreement on a new system that addresses the democratic deficit. Such an agreement, or even the start of negotiations, would go a long way towards reducing the friction and lowering the rhetoric. 

In itself, this will not resolve the most difficult issue – the proposal to give the Knesset majority the power to override court decisions that disallow legislation. If only a simple majority of 61 members are required, this would essentially end the ability of the judiciary to exercise the “checks and balances” function. 

But once the zero-sum confrontation and talk of the “death of democracy” is replaced by pragmatic negotiations, a reasonable compromise formula can be reached. And this is where committed Zionists who believe in Israel’s future should be investing their time; not only in addressing our “friends,” but more importantly, fellow Israelis. 

About the Author
Gerald Steinberg is Professor Emeritus of Political Science at Bar Ilan University and president of NGO Monitor. His latest book is "Menachem Begin and the Israel-Egypt Peace Process: Between Ideology and Political Realism", (Indiana University Press)
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