Minister behind overhaul admits it would end democracy, falsely claims he’s fixed it

Two weeks ago, Yariv Levin, the justice minister who is spearheading Prime Minister Benjamin Netanyahu’s power grab, gave the most astonishing interview to the pro-Netanyahu propaganda TV station Channel 14.

I want to quote a chunk of what he had to say, which went unnoticed until Monday, when it was picked up in the non-slavishly pro-Netanyahu national media.

The comments are astounding because they show Levin to be an absolute fool, or deeply dishonest, or to take Israelis for fools, or all three.

They are astounding, too, because the chief contractor in Netanyahu’s unfolding Israeli tragedy — in a legislative process that is tearing this nation to pieces — admits that the law that aims to politicize the judiciary, in the form that passed its first Knesset reading in late February, would have given the coalition absolute power. That, he said, was patently unacceptable in a democratic state.

And they are still more astounding because Levin, who has been obsessively preparing these laws for years, then asserts that the minor modification introduced to the legislation two weeks ago, just ahead of its intended second and third (final) Knesset readings, solves the entire devastating problem, when it does nothing of the kind.

Here’s the first part of what Levin had to say: “There are lots of unfounded claims raised by opponents of the reform. But there was one claim that, in my opinion, was genuine. They said that with a system in which a coalition majority can choose an unlimited number of justices, we’ll find ourselves in a situation in which a coalition, which in any case controls the government and the Knesset, would also take control over the Supreme Court of Justice within the space of a single term of office — bringing about a situation in which all three branches of government become one. This is indeed a concern that could ultimately cause a constitutional crisis, and cannot be ignored. It cannot be allowed in a democratic state. This had to be recognized.”

משפשף את אוזניי. באמת.

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And here’s what that means: The justice minister was acknowledging that the bill to remake the Judicial Selection Committee, in the draft that was approved by the Knesset in its first reading on February 21 — under which the coalition would be able to choose all of Israel’s judges, throughout the court system, including High Court justices, and also choose the president and deputy president of the High Court, thereby taking control over all High Court judicial panels — would give absolute power to the governing majority, creating a situation untenable in a democracy.

So far, absolutely spot on.

Here’s what Levin went on to say: “Therefore, what we did was to come and say, Gentlemen, we are providing a solution to this justified fear, by saying that in every term, a coalition can appoint two [Supreme Court] justices, via its majority on the committee. After that, wider agreement will be needed [for further appointments to the Court]. It’s completely clear, via this process, that in a few short years we’ll be able to have a very diverse and balanced Supreme Court.”

Here’s what that means: The justice minister is claiming that, by amending the legislation, so that the coalition “only” automatically appoints the first two Supreme Court posts that become vacant in every term, rather than all such posts, the destruction of Israeli democracy has been averted.

In fact, however, the coalition, under the amended legislation, still has heavy influence over the appointments of any further justices in each government term. And by the way, the average number of Supreme Court seats that become vacant in any term is only 2.6 anyway.

The coalition also still gets to choose the Supreme Court president, and thus to determine the composition of High Court panels, and it still has full control over the appointments of judges to the lower courts, meaning that all judges in the system know that they answer to political masters.

Not to mention, of course, the other elements of Levin’s “reform” package also wending their way through parliament — under which our so-called Basic Laws are to be immune from judicial oversight, leaving no guaranteed protection for basic human and individual rights; and radically constraining the justices from intervening in other government decisions and laws, which can also be preemptively excluded from judicial oversight, and/or re-legislated in the unlikely event of the Court somehow finding the means to strike them down.

Which means, in turn, that there will be nothing to stop the coalition again amending the law on the Judicial Selection Committee to enable it to appoint all new justices.

I apologize if the previous few graphs sound complex to the point of impenetrable. That’s partly a function of translating comments that Levin made in Hebrew, partly a function of the acute illogic of his remarks, and probably partly a function of my own spluttering frustration at the inanity of his argument — again, over a legislative putsch that is destroying our national unity, tanking our economy, alarming our friends, delighting our enemies.

I’m going to try to be polite. And I’m going to write this as though Yariv Levin is truly interested in protecting and strengthening Israeli democracy, which I don’t actually believe:

Dear Yariv Levin, read over what you said on television two weeks ago. Internalize that you spoke the truth when you said, in the first part of your remarks above, that your original legislation would give all power to the ruling majority and that this was manifestly unacceptable in a democratic country.

Now internalize that what you described, in the second part of your remarks, as a remedy for that unacceptable situation is nothing of the kind. All you have done is slapped a Band-Aid on a life-threatening hemorrhage.

And so, if you are genuinely seeking the preservation of Israeli democracy, heed the entreaties of President Isaac Herzog: Abandon the legislation you have been steamrollering through parliament, and commit yourself and your allies to a genuine, patient, consensual process of constructive judicial reform, including the negotiation of a constitution that will guarantee our basic rights.

You and your right-wing, far-right and ultra-Orthodox won the election, fair and square. Your coalition’s term in office has barely begun. There’s no rush to legislate.

Consider, if you could make one such grave and destructive a mistake in your long-planned legislation, might it not be the case that your quick fix is no fix at all, and that there are other profound flaws that you have yet to internalize — and that your crony, Simcha Rothman, bulldozing the bills through the Knesset’s Constitution, Law and Justice Committee over the outraged cries of opposition legislators, manifestly is not interested in exposing?

As things stand, your cosmetic modification notwithstanding, what you warned against remains precisely what you are doing — “bringing about a situation in which all three branches of government become one. This is indeed a concern that could ultimately cause a constitutional crisis, and cannot be ignored. It cannot be allowed in a democratic state.”

You said it.