Threats from Smotrich et al. did not frighten the High Court justices
At historic hearing, 15 judges fought for the institution that they represent and for Israeli democracy, leaving Netanyahu in no doubt of the direction this saga will take
Shalom Yerushalmi is the political analyst for Zman Israel, The Times of Israel’s Hebrew current affairs website
Those close to Prime Minister Benjamin Netanyahu have long understood that the High Court of Justice would not roll over quietly as the government’s judicial overhaul sought to limit its powers. And after a day of court discussions that continued deep into the night, that assumption was borne out.
The 15 High Court judges went out to battle for the institution that they represent and Israeli democracy, and they have no intention of giving in, even if it means overturning a Basic Law. They will retain “reasonableness” as a standard of judicial review. Whether they do so with a resounding majority of votes, or with a dissenting view from a minority of judges, or through a demand for changes, the direction is clear.
In other words: The judges fought for the independence of the court and did so in a way that commanded respect. They had a deep understanding of the material and debated the petitioners and representatives in great detail, all in a respectful and honorable way. This was in contrast to the provocations of overhaul architect MK Simcha Rothman and his lawyer Avi Segel, who called them “elitist oligarchs.”
Chief Justice Esther Hayut did the right thing when she authorized court proceedings to be broadcast live so that the public could see to the power of the proceedings and the danger the judges feel that this judicial revolution poses.
“Democracy dies in a series of small steps,” said Justice Isaac Amit. “We are the only branch [of governance] that balances [the executive branch]. We should be strengthened.”
Beyond that, we saw that the High Court judges are not willing to give in to threats. Far-right Finance Minister Bezalel Smotrich stood in front of thousands of right-wing protesters in Jerusalem on Thursday and issued a warning to Hayut: “Don’t you dare invalidate a Basic Law.”
Smotrich was not the only one to do so in recent days. Knesset Speaker Amir Ohana had a similar message, as did Otzma Yehudit ministers Amihai Eliyahu and Yitzhak Wasserlauf, who attacked the court ceaselessly before the hearing.
Hayut reacted with clear statements against the “reasonableness” law and led a determined line against all those trying to tie the court’s hands.
During the first hour of the hearing in Hall 3 of the Supreme Court, it became clear to those around Netanyahu which way the wind was blowing. No one was really surprised. We have heard these assumptions from Netanyahu’s associates in recent weeks.
Late in the debate, Likud put out a crude statement warning the court that it would “undermine democracy” if it invalidated the law.
“If the court can cancel Basic Laws, it makes itself sovereign instead of the people. This extreme step will undermine the foundation of democracy. This is a red line that must not be crossed,” Netanyahu’s party said.
This was largely an expression of the frustration, and maybe an attempt to salvage something when the judges sit to write their judgment in the next few weeks.
What happens now? The reasonableness law will go into a national filing cabinet until the judges publish their decision, probably at the beginning of January. Netanyahu will then be called upon to accept the court ruling, even though he has not yet committed to doing so.
The major concern now regards the High Court hearing next Tuesday of petitions calling to compel Justice Minister Yariv Levin to convene the Judicial Selection Committee. In Levin’s and Netanyahu’s offices, they are scratching their heads trying to come up with a response to the court.
Just like with the reasonableness law, they claim the High Court lacks the authority to intervene in the selection committee and that Levin has the sole discretion to convene it.
However, in this case, associates of Netanyahu assume the court’s answer will be unequivocal: They will order Levin to convene the committee immediately.
In such a case, according to sources close to Levin, the minister will try and fudge the order. He’ll convene the committee, but won’t put the election of a new Supreme Court chief justice on the agenda, only the choice of magistrate’s court judges.
Amid all this drama, it’s not difficult to understand why Netanyahu is still interested in trying to find a compromise on judicial reform such as the one proposed by President Isaac Herzog. The talks are still going on, largely between Herzog’s representative Oved Yehezkel and Benny Gantz’s people, but no one is really optimistic.
As of this writing, the chances of a unilateral declaration by Netanyahu along the lines of Herzog’s proposal seem more realistic, but to do so he would have to dismantle the pockets of opposition from within the coalition, most notably from the far-right Religious Zionism and Otzma Yehudit.
