Rothman: 'I knew it would come back, the question was when'

Coalition moves to restart overhaul, sets plan to limit High Court’s judicial review

Government aiming to pass bill to prevent justices from ruling on ‘reasonableness’ of decisions in next six weeks; legislation remaking Judicial Selection Committee set for fall

Carrie Keller-Lynn is a former political and legal correspondent for The Times of Israel

Prime Minister Benjamin Netanyahu leads a cabinet meeting at the Prime Minister's Office in Jerusalem, June 18, 2023. (Amit Shabi/Pool)
Prime Minister Benjamin Netanyahu leads a cabinet meeting at the Prime Minister's Office in Jerusalem, June 18, 2023. (Amit Shabi/Pool)

Prime Minister Benjamin Netanyahu’s hardline coalition decided on Monday to reignite its controversial plan to shake up Israel’s judiciary, setting a goal to curtail judicial review of the “reasonableness” of government decisions before the Knesset recess next month.

Legislation to take political control of judicial appointments — the core and most controversial element of the overhaul — will be scheduled for the winter session, which opens in October, according to several coalition sources. The coalition is expected to withdraw the bill it was about to enact in late March, which would give the governing majority near-absolute control of appointments throughout the judicial hierarchy, and prepare a fresh draft with as-yet unspecified changes.

The coalition leaders’ decision likely sounds a death knell for the stalled talks hosted by President Isaac Herzog to work towards a consensus solution.

Moments before coalition heads ended their Monday afternoon meeting at the Prime Minister’s Office, opposition leaders said they would not return to the compromise negotiations if the coalition went through with Netanyahu’s promise a day earlier to unilaterally legislate judicial changes.

Announcing that coalition heads “reached a decision to continue the reform,” Finance Minister Bezalel Smotrich said that he “instructed” Constitution Law and Justice Committee head Simcha Rothman to begin advancing a bill as early as Wednesday to end the High Court of Justice’s ability to review government decisions for their reasonableness.

Coalition sources confirmed that the political alliance plans to finalize this piece into law within the next six weeks, before the Knesset breaks for summer recess at the end of July. Smotrich said, however, that the new push will be “slower, with more moderate steps.”

Prime Minister Benjamin Netanyahu speaks with Finance Minister Bezalel Smotrich during a cabinet meeting at the Prime Minister’s Office in Jerusalem, June 18, 2023. (Amit Shabi/Pool)

Smotrich called the bill the “Sohlberg bill,” after the Supreme Court justice who proposed a method for curbing the use of the “reasonableness” doctrine.

Rothman, who shepherded overhaul bills through their Knesset preparations from their January announcement to their March freeze, told The Times of Israel that he is “ready” for the restart.

“I knew it would come back, the question was when,” said Rothman, who has been critical of the negotiations held at the President’s Residence.

Although the reasonableness curtailment bill has yet to be resubmitted, Rothman said that the text would be similar to a bill previously submitted by Justice Minister Yariv Levin.

In that bill, decisions made by the government and ministers would be insulated from court review for their “reasonableness,” a vague, discretionary standard. The High Court of Justice would be specifically barred from exercising this review against appointments. Additionally, it would not be able to partially curtail the validity of government or ministerial decisions under the reasonableness doctrine.

The court partially relied upon reasonableness to expel Shas leader Aryeh Deri from the cabinet, after he was appointed to lead two of the country’s most budget-bloated ministries just months after a tax offenses conviction.

MK Simcha Rotman together with Justice Minister Yariv Levin seen during a discussion and a vote in the Knesset plenum, March 22, 2023. (Yonatan Sindel/Flash90)

Deri previously served a jail sentence for bribery, connected to a previous ministerial posting.

Shas has pressured the cabinet to find a solution to return Deri to its ranks. Although canceling the court’s ability to find his appointments “unreasonable in the extreme” will partially clear the way, it remains unclear how Deri will overcome the second doctrine relied upon in their ruling: judicial estoppel.

National Security Minister Itamar Ben Gvir echoed this personal gripe against the court.

On Sunday, the High Court of Justice issued an interim injunction to block the implementation of a Ben Gvir-backed law to give himself unprecedented power over the police, giving the state 90 days to respond.

Ben Gvir said that the court’s ruling is “a message” that “you, the politicians, can continue talking; we, the Supreme Court, will continue running the country.”

“I want an independent judiciary, but I don’t want the court to become the legislature,” he added, speaking shortly after the coalition heads met. “At the end of the day, we were elected to lead.”

Yesh Atid party head MK Yair Lapid speaks during his Knesset faction meeting, June 19, 2023. (Yonatan Sindel/Flash90)

Shortly before the coalition finalized its plans, opposition party heads stressed that unilateral legislation would be the end of negotiations, which have been frozen since last week.

“They have to convene the Judicial Selection Committee. That’s what was agreed upon with the president, and once they convene the committee, we can talk. As long as they don’t legislate [beforehand],” opposition leader Yair Lapid said, in response to reporter questions.

“One-sided legislation will become Netanyahu’s one-sided disconnect from the nation,” National Unity party head Benny Gantz said.

“We’ve already been there, on the verge of the abyss, on the verge of civil war. I urge Netanyahu not to be the one who casts the lit match into the forest,” Gantz added.

Lapid and Gantz, who pulled out of talks last Wednesday and said they’d stay away until the Judicial Selection Committee is convened, denied that Yesh Atid and National Unity came to agreements in principle over reasonableness and a second issue that Netanyahu weighed unilaterally pushing — the appointment of private legal advisers to ministries.

“No plan was ever agreed upon,” said Gantz, who has insisted upon a single, complete package deal or no deal at all.

“There are no agreements and there weren’t any,” Lapid echoed at the outset of his Yesh Atid party’s Knesset faction meeting. “The only reason that Netanyahu returned to legislating is that he’s lost control over his coalition.”

Herzog released a statement on Monday to “emphasize” that “no binding drafts were sent by the President’s Residence to either side, and of course no full agreement was reached on any issue,” echoing opposition leaders skirting the issue of whether or not they expressed they would be comfortable with limiting the reasonableness test.

“Naturally, ideas have been raised both in internal discussions and among the general public regarding the issues on the agenda, but they have not yet been formulated into any understandings and conclusions,” he added.

Herzog also called on parties to return to the negotiating table, despite the red lines set and crossed among them.

“I have always believed, and today more than ever, that dialogue is the best solution for the State of Israel. I reiterate my call to show national responsibility and to continue the fruitful and substantive dialogue that took place in recent months under the auspices of the President’s Residence,” he said.

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