ISRAEL AT WAR - DAY 145

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Op-ed

Is a frustrated right starting to consider a larger constitutional process?

Chastened by failure, some champions of the Knesset’s sovereignty and power are grudgingly, haltingly looking outside the parliament for a solution to the judiciary crisis

Haviv Rettig Gur

Haviv Rettig Gur is The Times of Israel's senior analyst.

Right-wing Israelis attend a rally in support of the government's judicial overhaul, outside the Supreme Court in Jerusalem, on September 7, 2023. (Arie Leib Abrams/Flash90)
Right-wing Israelis attend a rally in support of the government's judicial overhaul, outside the Supreme Court in Jerusalem, on September 7, 2023. (Arie Leib Abrams/Flash90)

“This very hearing testifies to the court’s lack of respect for the public’s judgment,” MK Simcha Rothman railed at the 15 judges of the High Court last week. “The very idea that it’s possible to hold a clean, sterile, legalistic discussion when the basic question being asked is whether the court is acting properly today or acted properly in the past is evidence of an ethical lapse.”

Those words of bitter accusation were leveled at the justices at last Tuesday’s hearing on petitions against the “reasonableness law,” during which Rothman defended the coalition’s legislation — an amendment to a Basic Law — that eliminated the court’s ability to overrule “unreasonable” government and ministerial actions.

Rothman was speaking from the heart. He’s been railing for years against what he sees as the court’s overreach. He founded an NGO and wrote two books dealing with the subject. He is one of the key political architects of the government’s judicial overhaul. This was his moment in the limelight, a chance to make his case to the nation, and he intended to use it to maximum effect.

“Can you be the ones who judge on this question, without fear or favor, without being biased by the fact that you’re debating your own dignity, your own standing, your own authority?” he demanded. “It’s clear to me that you believe you’re acting appropriately, but if you become the final arbiter on this question too, where are the checks? Where are the balances?”

Rothman’s speech included a plea, a bit unexpected, that the court join his crusade to weaken itself.

“In a democratic state, the people are sovereign. Don’t try to take from the people of Israel their democracy and their faith in their democracy. Join the effort yourselves to fix the judicial system and restore the public’s trust in it. This isn’t a political effort. This is a critical effort that all branches of government must be partners in. For years this nation has cried out for justice. Don’t force it and us to wait any longer.”

MK Simcha Rothman arrives at a hearing on petitions against the government’s ‘reasonableness law,’ at the Supreme Court in Jerusalem, September 12, 2023. (Yonatan Sindel/FLASH90)

There are many obvious challenges that one can level at Rothman’s speech, which painted a picture of Israel’s current legal and political situation that only a minority of Israelis would recognize. His suggestion that his effort to weaken the court “isn’t political” — whatever that might mean — would be news to just about every politician, including on his side of the aisle. His insistence that the court is somehow preventing justice is generally shared by his own voters, but not by most Israelis. There’s also the rather significant point that the court enjoys more public trust than Rothman himself, or than the parliamentary coalition that seeks to weaken it. If Rothman really believed that public trust statistics were a decisive indicator of a job well done, he’d have to draw some unpleasant conclusions about his own political career thus far.

But ultimately these are quibbles when considering a political speech constructed of the usual run of political chaff that must be cleared away to get to the politician’s core message. At the heart of the speech, Rothman had a point, a good and vital and unavoidable point. Ironically, it is precisely where Rothman was absolutely correct that his vulnerability is revealed.

In commenting on Rothman’s speech, the thoughtful conservative commentator Yoav Sorek, editor of the journal Hashiloach, framed the point more succinctly and, possibly accidentally, more critically.

After lauding Rothman’s speech, he wrote, “It’s obvious that to consider questions of the relationship of the branches [of government], we need a forum that isn’t one of those branches. A constitutional court, a constitutional assembly, something. Without that, we have no choice but to preserve the delicate dance on this tense tightrope — a tightrope that ceases to exist, of course, when ‘Divine Providence’ rules by dint of a divine revelation we’ve all somehow missed that one side (the High Court) is ‘supreme,’ the arbiter, it stands alone and woe befall any who argue with it.”

As with Rothman’s words, there’s no love lost here for the High Court’s powers. But there’s something more, something suddenly popping up across right-wing discourse and which Sorek was correct to single out from the whole.

When did conservative activists begin wishing for “all branches of government” to be “partners” in judicial reform, or for the establishment of a whole new branch — a permanent court? a temporary assembly? — to do the work of laying Israel’s constitutional framework?

Protesters rally against the coalition’s judicial overhaul legislation in Tel Aviv, September 2, 2023. (Yael Gadot)

None of this was part of the discourse back in March, when Netanyahu temporarily froze the overhaul amid escalating protests. But it is now. Knesset Speaker Amir Ohana actually floated the idea openly on Thursday.

As with Rothman and Sorek, Ohana presented it as a direct attack on the court. He went further than them, delivering it as an explicit threat meant to cow the justices into leaving the reasonableness law intact.

But what was the substance of his threat?

The Knesset, he said, repeating the right’s mantra over the past week, “won’t accept its trampling with submission.” But his proposed solution didn’t fit the problem of the Knesset’s purported “trampling”: founding a new body, a “constitutional court,” that would deal with “constitutional issues that exist even though Israel has no constitution.”

It would be a court empowered to “deliberate values, worldviews and concepts from the realm of ideology,” and not all its members would have to be jurists or legal experts, he said.

It was emphatically an attack on the court; Ohana worked hard to leave no doubt of that. But it was also an attack on the Knesset.

Knesset Speaker Amir Ohana holds a press conference at the Knesset, the Israeli parliament, in Jerusalem, September 6, 2023. (Yonatan Sindel/Flash90)

The extra-judicial constitutional gathering he was describing was also, not to belabor the point, an extra-parliamentary one, a fact that few of Ohana’s liberal critics noticed and Ohana himself didn’t emphasize. In defending the Knesset’s dignity in the face of the court’s alleged “trampling,” he’d proposed removing constitutional questions not just from the court’s purview, but also, apparently, from the Knesset’s.

Then there’s Prime Minister Benjamin Netanyahu’s meeting with Elon Musk, at which Netanyahu said he was looking to find a compromise solution on judicial reform, “a happy middle,” but if the opposition proved not amenable to negotiations, “then I want to sit with the public — that is to have as broad a consensus for a minor correction, basically some correction on how we choose judges.”

It’s genuinely hard to imagine what he might be thinking. A poll? A referendum? A “constitutional court” a la Ohana that isn’t really a court but is empowered to make constitutional decisions in some way?

His comment was so vague that it’s fair to suggest he doesn’t actually know what he wants, but he at least knows that he doesn’t want to continue down the path he’s walked thus far. It’s the vagueness of someone in search of new solutions.

The devil is ever in the details, of course. The ministers and coalition MKs now floating ideas for a new constitutional process probably expect that the coalition itself will set its procedures and agenda. Opposition lawmakers will certainly assume as much.

But the precedent is nevertheless being set. The old vision may be shifting — the long-held belief, articulated as a matter of fundamental principle, that the Knesset is the sovereign and sole representative of the people’s will and won’t allow itself to be “trampled” by any shift of constitutional powers outside itself.

Prime Minister Benjamin Netanyahu (R) and Justice Minister Yariv Levin (L) at a cabinet meeting at the Prime Minister’s Office in Jerusalem on September 10, 2023 (Chaim Goldberg/Flash90)

The political right no longer thinks it can ram any constitutional change it wants through the Knesset along narrow partisan lines.

Or at least a great deal of it has become convinced of that. Justice Minister Yariv Levin, for his part, insisted on Monday that nothing had changed and the reform would continue as is. “If someone thinks the reforms should be withdrawn, halted or canceled, this will only put more pressure on the government. Their whole goal is to take down the government, and under no circumstances will this government fall,” he told a gathering of right-wing NGOs at the Knesset, according to Channel 13. “It’s clear that this whole process is about the question of who will rule here, and they’re not ready for us to run the country. So, even if there are no agreements [with the opposition], I have no intention of canceling the reforms.”

But even the most die-hard supporters of the government and of the overhaul are beginning to acknowledge that Levin’s tenacity doesn’t reflect the broader view in Likud.

In a Channel 14 interview on Tuesday, Yaakov Bardugo, a firebrand Netanyahu loyalist, said so aloud: “Yariv Levin is now establishing a camp within Likud. He’s no longer Benjamin Netanyahu’s right-hand man. But it won’t work for him. A lot of noise, but he won’t succeed. People who are supposed to be in his camp aren’t with him anymore. It’s no accident there’s now a great silence among Likud ministers and MKs recently.”

A negotiated compromise on the overhaul is unlikely. Far-right factions that hold the deciding vote in the coalition can’t concede the minimum that opposition factions would need to sell any agreement to their voters. Nor does Prime Minister Benjamin Netanyahu command enough basic trust among opposition parties, including rightist ones that hunger for a compromise, to allow the latter to enter into politically risky negotiations.

And so some on the right seem increasingly willing to seek new avenues for change that don’t pass through the Knesset.

All 15 of Israel’s Supreme Court justices appear for the first time in the country’s history to look at the legality of Prime Minister Benjamin Netanyahu’s “reasonableness” law, enacted in July, in Jerusalem, Tuesday, Sept. 12, 2023. (Debbie Hill/Pool Photo via AP)

When even passionate supporters of judicial reform, the Ohanas and Soreks of the Israeli public debate, start to cheer the idea of removing the constitution-making process from the Knesset, if only because they cannot now imagine any other way to take that power away from the court, it is an admission of defeat for the old strategy.

Rothman’s speech was emphatically the bellicose cry of defiance that everyone heard. But contained within it was also, in the quiet fashion of a political pivot trying to avoid calling attention to itself, an acquiescing to political realities and a tentative signal of a new way forward. The court could not be expected to “join the effort” of the radical overhaul proposed back in January to all but gut its powers. But it could be called upon to join in a new kind of effort, the kind Rothman and Ohana and conservative commentators seem to be hesitantly circling.

Slowly, in some cases perhaps not yet fully consciously, the notion of a more serious constitutional process is beginning to take hold in conservative circles, if only because the right is beginning to accept that the cost of forcing constitutional change via party-line votes is too high. A lesson has been learned from the past nine months — not by Levin or some of the more populist politicians, but by those whose self-assurance and aggressive political instincts are tempered by the desire to actually accomplish something.

So what happens now? Could the political right advance such a process? Does it want to? And would it be a real, fair constitutional effort?

Rothman leveled a good and vital question at Israel’s justices last week. “Can you be the ones who judge on this question, without fear or favor, without being biased by the fact that you’re dealing with your own dignity, your own standing, your own authority? It’s clear to me that you believe you’re acting appropriately, but if you become the final arbiter of this question too, where are the checks? Where are the balances?”

Critics of the overhaul have been leveling that very question at Rothman himself, at the slim Knesset majority that claimed it was restoring checks and balances while concentrating nearly all power in a narrow parliamentary coalition dependent on the most radical fringes of Israeli politics.

Perhaps it’s time for Rothman to begin to take seriously his own excellent question, which more Israelis are asking about more branches of government than he seems to realize. Where, indeed, are the checks? And where the balances?

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