What Matters Now… to MK Simcha Rothman: ‘The people should appoint the judges’
In this second episode of What Matters Now, we speak with the legislator who has written the bills for the proposed judicial overhaul and hear why he thinks they’re not so radical
Deputy Editor Amanda Borschel-Dan is the host of The Times of Israel's Daily Briefing and What Matters Now podcasts and heads up The Times of Israel's Jewish World and Archaeology coverage.
Welcome to our second episode of What Matters Now, a new weekly podcast exploration into one key issue shaping Israel and the Jewish World — right now.
Israeli media from all sides of the political spectrum is closely following the proposed legislation for judicial overhauls — some of which will have their first plenum votes early next week.
And while almost everyone seems to agree that there is a need for judicial reform, many ask, why so extreme and why so fast?
For weeks, we’ve reported on protests in the street, sharp rebukes from legal experts, and businessmen threatening to take their money elsewhere. The President of Israel, Isaac Herzog, waded in and asked legislators for a pause for reconsideration and potential compromise.
One person who doesn’t think the overhaul is all that radical is the Member of Knesset who wrote the bills that are being determinedly pushed through, Simcha Rothman from the Religious Zionism party.
For the past decade, Rothman, a lawyer by training, has worked towards this legislation through his advocacy work at Meshilut, the Movement for Governability and Democracy. A fixture in the halls of the Knesset, Rothman has written books and lobbied for what he terms a stronger democracy — through a rebalancing of power from the Supreme Court to the Knesset.
An MK since 2021, Rothman is one of the most driven lawmakers in the new coalition. As the chair of the Constitution, Law and Justice Committee, he is fast-tracking these first points of reform, which include changing the process for judicial appointments, curbing the Supreme Court’s test of reasonability, a slim override clause and severely limiting the High Court of Justice’s ability to strike down Basic Laws.
This week, days before a first vote on Monday for two proposals, I made my way through the labyrinth of the Knesset to speak with Rothman and hear why these reforms, and why so quickly.
The following transcript has been lightly edited:
The Times of Israel: MK Simcha Rothman, thank you so much for allowing me into your room here at the Knesset to speak with you a little bit and let our listeners know what is going on.
So from my point of view, I’ve been in Israel for 25 years, a third of the age of the state of Israel almost. This is a very troubling moment, a divisive moment, a moment of high anxiety. You’re shaking your head, and that’s great. But a moment, from my point of view, that I haven’t seen since the Disengagement. Usually, in times of trouble, Israelis come together. But during the Disengagement, around 2005, we saw protests in the street. We saw all sorts of divisive, hateful speech even. And it feels to me that we’re here in this moment now.
So I’m asking you, what matters now?
I think that the first thing that matters now is to say that you can’t argue with feelings… The media cares about what they see out of their window in Tel Aviv. That’s why in 2011, after the Disengagement, they all talked about the social, “cottage cheese,” protests. I’m not trying to deride it, but I do try to put it into proportion.
Not a lot of people participated in this event. It was one street in one area that at the most you can put 20,000 people in. But the numbers were maximized by the media, and everyone was talking about it because when the people in the media were going out to the streets, to them, to their favorite coffee place, they saw the tents.
But today we see protests in Jerusalem, in Tel Aviv and Haifa.
No, we don’t see protests. We see very low-key protests. We talk about the protests, we talk about them.
You’ve been living, breathing, sleeping, eating the judicial reform for about at least 20 years. And you have a long list of reforms you’d like to implement, at least 10 that I’ve heard about. And we’re starting with four here in the Knesset, and two of them are meant to come to some kind of preliminary voting on Monday. Tell us about these two, please.
So one of them, I actually find it, it’s not one of my “reforms” because I would think it would be very straightforward. It’s basically enacting what the Knesset constantly told the court. The Supreme Court in Israel has no basis to criticize or cancel or to even debate Basic Laws. The claim for fame by the Supreme Court to cancel regular Knesset laws was because of a Basic Law. That was the claim to fame in the [1995] Bank Mizrahi case, which the Court talked about for 30 years. To say that the court cannot cancel Basic Laws is the equivalent of saying that the court in other countries where there is a constitution cannot cancel the constitution or write its own constitution. In Israel, we have a court that basically created its own constitution and does whatever it wants with it. That’s a problem that needs to be changed. But I don’t see it as a reform. I see it as stating the obvious.
But what is the Basic Law? We don’t have a constitution. People say it’s quasi-constitutional. You’ve used your air quotes and constitution when talking about these Basic Laws. What are they to you?
I hold the legal position, the judicial position that former Chief Justice [Meir] Shamgar held concerning the Basic Laws in Israel. Meaning that the Knesset is like the parliament in Britain or in New Zealand, in other countries that are a parliamentarian system, the Westminster system. And we have a parliament that is all-powerful. It can basically decides whatever it wants. That’s the system, and that’s the quasi-constitutions that we do have. And as part of the legislation, it can say this law is more important than that law. But it’s all legislatures saying and maybe even telling the court, this law is more important than that law.
That’s a regular parliamentary system. It does not have a constitutional value until it’s formalized into a constitution. That’s what a Basic Law is in Israel. We enact Basic Laws in Israel the same way we enact regular laws because that’s the way the system in Israel was always the case.
We call a Basic Law whatever law the Knesset wants to call a Basic Law, hinting to the public, to themselves, to other branches of government that this is a more important law, whatever that means.
So Basic Law is born the same way as any kind of other regular law. But the Knesset itself says this is a Basic Law. So the courts should lay off? Is that what you’re saying?
Courts, lay off. But also sometimes it says the court should check another law if it goes by the Basic Law. Meaning what we call a law a Basic Law depends on what’s in it. Sometimes the Knesset tells the court or other branches of government, to ignore a regular law if it contradicts the Basic Law. The Basic Law is at a higher level. But here at the Knesset, we will tell you which law is at the higher level.
Now, that’s a very common system. It happens all around the world. And the Basic Law, for example, if we have a Basic Law saying that elections must be equal elections, any law, regular law that has anything to do with election law has to go by this Basic Law. And that’s fine. That’s because we put the Basic Law of Elections on a higher level than the regular laws.
Okay, I understand what you’re saying there. And the second reform that is extremely divisive, perhaps even more divisive, is the judicial appointments. And you have one system that you’ve come up with, and there have been other systems that have been floated, including by Justice Minister Yariv Levin. But it’s your bill that’s going forward on Monday, correct?
It’s the [Constitution, Law and Justice] Committee bill. I’m offering the Committee to accept my proposal. If the Committee will vote for it, then it will pass.
And it’s a proposal that you’ve tweaked here and there to include hopefully, maybe women.
Not hopefully, maybe! I will explain the system today in Israel and the change. The system in Israel today: There is a committee of nine that combines basically four different groups. The biggest group is the judges, sitting Supreme Court justices, three Supreme Court justices; two members of the bar — meaning five out of the nine are unelected officials today, meaning the entirety of the public in Israel is represented as a minority in this committee — and two ministers and two Knesset members.
Usually, in recent years, it’s made up of one from the coalition, and one from the opposition, but it’s not a rule, and just recently it did not happen, so it’s not a rule today. But usually, we can talk about three out of the nine are representative of the government/coalition/majority, and one usually represents the minority. That’s the makeup of the committee today.
I’m offering to take the bar out because I don’t think the bar has anything to do with electing judges. It’s very strange. So we will still have a committee of nine, but it will be three judges, three ministers and three Knesset members. For the first time in the history of the State of Israel, the opposition will get representation.
In the basic Law, I want to make it very clear that you need to have an opposition member on the committee. I served as the opposition member in the committee last Knesset, so I definitely understand the importance of the committee and I reject the idea that if you are a minority, you are not affecting the process. That’s not true.
And you have three ministers, three Knesset members, as we said, and three judges, but not all of them from the Supreme Court, who are self-appointed. It will be the Chief Justice sitting ex officio by his position, and two ex-judges, retired judges that will be chosen together by the minister and the Chief Justice.
It seems to me that the biggest change in your proposal, other than having an opposition member enacted into law, is that most of the makeup of this committee is coming from the elected officials, from the coalition. So this is what people are, of course, objecting to. But why do you think that this is actually a good thing?
I think and I said and I actually wrote the book about it called, “Why Should the People Choose Their Judges?” That’s the situation in almost every democratic country. The fact that people in Israel — or some of them — are happy with a system that takes away, as we said, the system today gives the entirety of the public in Israel a minority in the committee, which is unheard of. It’s really unheard of for unelected officials to have this kind of power, to have a self-perpetuating court. In almost every other democratic country, the system gives the power to the ruling majority to appoint judges. I’m talking about, of course, the US, where you have the President and the Senate and 12 out of the last 15 judges that were elected to the Supreme Court in the US were elected by the same party. The President and the Senate majority were the same party. One party chose 12 out of the 15 judges.
If you talk about Canada, the prime minister appoints judges. If you talk about Ireland, if you talk about Sweden, if you talk about Norway, Australia and New Zealand, that can go like that all day.
It’s either the parliament alone or the executive alone, or a combination thereof. That’s the common case, though, to say it’s a strange system that gives too much power to the public, to the elected officials. I really don’t understand. Why should people think that the people in Israel are less capable than the people of Ireland or Sweden or Canada or the US to choose their judges?
That’s one issue. The answer to the question that I am asking is that some people in Israel are used to the fact that it doesn’t matter if they win or lose the election, they win the election. Meaning, it doesn’t really matter what people vote for on election day because the real decision-making power is in the court or in the legal advisor that is also elected in some way by the court or in other unelected branches of government in Israel that are elected by the court.
If you talk about the power of the Chief Justice in Israel — just the Chief Justice — he appoints the head of the public broadcast company. In Israel, the Supreme Court has its own broadcasting group appointed by the Chief Justice.
He appoints, of course, the chief legal advisor, he appoints the committee that appoints the chief legal advisor, and he appoints investigative committees. He is a branch of government but unelected, unaccountable, and self-perpetuating. We have the same people appointing themselves and I’m not even talking about the corruption that comes with so much power, unchecked and unbalanced. I am talking about pure democracy. The people of Israel should be able to vote and change what’s happening in their own country.
Don’t you think though that once judging becomes a political appointment there is the tendency of any kind of human who wants to have a job to try and make his elector happy? And so perhaps he’s not even paying attention to the purity of the law but is trying to make the people who will vote for him, vote for him.
First, show me a system in democratic countries that works like that. That’s a valid argument but if no other country believes that that’s happening that should be the case, then this argument is apparently wrong just by the fact that no other democratic country has a self-perpetuating court.
But the independence of the court is extremely important. Once you appoint a judge, it should be, and we’re not touching this, extremely, extremely hard, or almost impossible to kick a judge out of office. Why? Because we want an independent court, we want the judges to abide by the law and they take an oath when they are being elected and chosen by the President of the State of Israel. There is of course appointing the people that are elected by this judicial selection committee. He does not have the power to say no, but he appoints them at a very nice event in his house and they come and pledge allegiance to the laws of the State of Israel.
They are independent, you cannot touch their salary. There are many rules to safeguard the independence of the court. But appointing judges is not one of them because you have to give the public in a democratic country [the ability] to elect the people that hold big power over their heads. That’s the idea of a democratic country.
There are many ways to reform the judicial appointment and in fact yesterday I believe it was MK Yulia Malinovsky. She had a proposal. Perhaps not a good proposal, but are you open to hearing other proposals?
We talked about her proposal and proposals like hers in the committee. I am willing to accept any proposal if the principle that I mentioned is present. If the public in Israel can appoint judges through its elected officials, I’m fine. If it’s a smoke screen that is intended to keep the power away from the public, I will object to it.
I am not in love with my ideas. As you mentioned, there is [Justice Minister Yariv] Levin’s proposal, which is different from mine. My proposal has changed over the last two, three weeks when we spoke about it in the committee. You spoke about the women. The legal advisor of the Knesset said that because the basic offer was three positions from the Knesset ex officio by the position heads of the committee, she wanted to know what would happen if none of those positions were taken by a woman. You would not have a female representative from the parliament. So I said, okay, let’s change it so that only one position will be ex officio and the other two will be elected by the opposition. One will be from the opposition, one will be from the coalition. The opposition will choose their own representative. The coalition will choose in a different way.
Through the speaker.
Through the speaker. Excellent. We are open to changes. We are open to negotiation. We’re open to good ideas. We will not compromise on the general ideas, saying the public should have the final word on who the judges will be. We won’t compromise on that because it’s not a compromise to tell me to take away your position, your offer and throw it away, and we’ll do something else. That’s not a compromise. That’s saying we are objecting — which is excellent. A position is good to oppose, but they can also oppose a section and not oppose the grand idea. And then we can talk. If they say we object to the fact that you are in government and we object, to the fact that you are trying to give the power to the public. Now, when you look at it a little bit deeper, it’s not a distrust in what I do, because what I do I did not say from now on, Simcha Rothman will appoint judges. That’s not my point. I said the majority.
Do you think, if they object to that, it’s either that they think that they will never be in power again? Because I’m not offering to change all the Supreme Court, even if this government will stay for four years, full four years, we will appoint only four out of the 15 judges that are in the Supreme Court today. So what they actually say, we don’t believe that we will ever be in power, we will ever be in the coalition. And we want to keep the power that we have today, even though we are not elected and we’re not going to be elected.
Now, I don’t think so. I think that Yulia Malinovsky has a chance to be in government in the next decade or two decades of the State of Israel. Not less than me. I think we are equal. There is an equal opportunity that she will be in the coalition and then I will be in the coalition. And I am building a system that will give her, when she is in power, the same opportunity I want for myself. I’m not trying to change the rules of the game to get some more power for myself.
So either they don’t believe they will ever get into power or they say we are not trustworthy, don’t trust us. We don’t want power for ourselves. Take the power away from the elected officials and give it to some dictatorship. I object to that.
We don’t trust you, is what they’re saying. Not us.
No. Because if it was only me, then they would say, okay, so the coalition will have the power. This coalition will appoint four out of the 15. Next coalition we will be in power. We will appoint three or four.
We don’t trust us, as members of Knesset.
They don’t trust elected officials. Actually, they don’t trust the public. Actually, they think that the public in Israel is stupid or incapable of dealing with their own issues. And that’s the undemocratic spirit that I am against. And it’s out there, it’s open.
Some people tell me, oh, it’s a smokescreen. You want the coalition to appoint judges. I said that’s not a smokescreen. I am saying out loud, I want the coalition to appoint judges because I want the people to have the ability to appoint judges.
As we said earlier, you have been living, breathing, dreaming of this for so long. The public perhaps didn’t quite pay attention to your list of 10 steps for a stronger democracy and all sorts of other things that you’ve had in the past years coming forward. So the question is, why so fast? Why the wrecking ball approach?
No wrecking ball and it’s not fast. The last coalition passed way more Basic Laws and changes in the system in the first two months of the government than us. Most of them were never campaigned on. People did not talk about it. It’s not so fast because in the coalition agreements in 2015 and in 2019 — the government that never happened, that was already ready to be signed and then [Yisrael Beitenu head Avigdor] Lieberman crossed to the other side, not to say double-crossed. But the coalition agreement in 2015, in 2019 included an override clause in the 61 majority.
The last Knesset in a preliminary reading in the Knesset, passed a Basic Law proposal to enact an override clause.
For 70 though, right?
No. 61. And I took the language of the law that was passed in May 2021 by a majority in the Knesset, including people that today are in the opposition, like [National Unity head] Gideon Sa’ar and [National Unity’s] Ze’ev Elkin, Matan Kahana, Sharren Haskel and Yifat Shasha-Biton.
And they voted on that. I took this same language and put it in my proposal, not because I believe that’s the truth, because I wanted to try to get their compromise to a wider… It didn’t help me because it’s not about the matter. It’s about the fact that they are not in power. Therefore, nothing that we can do will be better, will be good for them.
I respect the democratic process. They chose to object to anything that this government offers — their problem. But when you talk about reality and talk about the plan and what people knew and what people were talking about, this has been on the table for almost a decade. The same plan.
Okay, so talking about what’s on the table, we have the two that are coming up on Monday, which we already discussed, and the override clause you’re talking about now, but it’s separated off.
The override will be on Wednesday in the plenum. It’s going to the government cabinet committee for legislation on Sunday. My bill, my private bill — again, it’s a copy, the same copy of the bill that was passed last Knesset in the preliminary reading. I’m not making anything up. It’s the same bill. Exactly.
And the fourth item?
The fourth item is reasonability, the fact that in Israel, unlike any other country, again in the world, the court can interfere in any government action. Not because it’s hurting human rights, which is a different issue. That’s one thing. Not because it did not go in the right procedure or against any law, not because you didn’t have a hearing or you didn’t have the ability for due process. Everything was fine. All the dots are excellent. But the court says, we don’t like the outcome. We don’t think it’s reasonable we’re canceling it.
So the court can appoint and fire anyone they want in government. That’s not a power any court should have. The court can decide on policy issues because it doesn’t like the policy — based on nothing, because there is no jurisprudence on that, it’s what the court likes or not.
That’s not a rule of law. That’s a rule of lawyers and judges. And that needs to be changed. There is no other country like that.
Now, the things that I put forward in my bill are to enact what a sitting justice wrote in articles and wrote in his opinions in court saying this reasonability way to cancel government action should not apply to elected officials. You can do it if you want. If you think that some low-level government executive decided something that is unreasonable, okay, so change it, not a problem. But when you talk about elected officials, that’s a democratic problem. That’s why he’s offering not to use this power on elected officials.
I’m all for it and I’m trying to legislate it again, very reasonably, very moderately. Now I’m a politician. Of course, my motive is to tell you I am changing Israel upside down. Israel will never be the same again.
But it could be true, actually.
No, but I’m saying no: It’s a moderate change. It’s huge in Israeli terms because Israel is in such a bad place, considering the court trust, the public trust in the courts, and the court taking power they shouldn’t have, and they’re self-appointed.
So in Israel, in the Israeli context, it might be huge, but when I talk about it with my fellows from across the ocean and I’m telling them what I’m changing, they say, you’re just stating the obvious, Simcha, what are you talking about? Of course, the court should never have this power. Whoever thought about this crazy idea to give the court this power to begin with. So what I’m saying is it’s huge in Israeli terms. When you talk about it in the comparative constitutional Law, it’s okay. Nice.
So Monday, we’re also marking five years to the Bibi trials — to the Prime Minister Benjamin Netanyahu’s cases that were opened. Many of the people who are criticizing your moves are saying this is just the perfect opportunity to get them through because they can, in a very practical way, be used to help our prime minister. What do you say to that?
In all the four issues that we talked about, I don’t see anything that’s connected even remotely to Netanyahu’s trial. I don’t see a connection. I’m not touching, as of now, and it’s not even in the plan to touch the criminal procedure concerning Netanyahu.
We did say that some of the criminal offenses that Netanyahu was charged with, it’s a shame to have them in our law books. Many other countries have canceled them. Like the breach of trust. It’s in Israel’s terms, there is misconduct in public office. That’s the term in Australia and Britain, which basically gives the court and the legal advisor the ability to indict anyone they want on anything and just try to stick something on them. It’s a bad law.
The criticism of this law started way before Netanyahu’s cases. And if you want something of personal motive, the personal motive is all the people that wrote articles and op-eds against this issue when it was [former prime minister Ehud] Olmert’s trials or something like that, and now, because it’s Netanyahu, they say, no, don’t change it. So if there is some kind of change, it’s on the other side.
But as you mentioned, I’ve been involved in this issue for 10 years since I started Meshilut, the Israeli Movement for Governability and Democracy, I was thinking about it and talking about it in the earlier stages of my professional life. But for 10 years that’s what I’ve been doing. Netanyahu cases, as you said, five years. I think it’s less. I think it’s four, but doesn’t matter. I’m not offering anything new because of the Netanyahu cases. I am not trying to change the system because of the Netanyahu cases.
I wrote about those issues before Netanyahu was indicted. I was dealing with those issues way before. The same way Yariv Levin, the same way, other people so, again, I think there are people and it’s the other way around. [Former prime minister] Yair Lapid, the head of the opposition, said that you have to split the powers of the chief legal advisor, but you don’t do it now because of the Netanyahu cases. So it’s the personal motive and the political motive of the people who object to it.
Without Netanyahu’s trial, without Netanyahu in power, I would have 90 members supporting the positions — even more — because that’s what’s true and right for any other country around the world. Sadly, that’s the way politics works. Maybe some people support what I do because of Netanyahu. Maybe some people object to what I do because of Netanyahu. I am in this business way before, and I’m probably going to be in it way after.
I’m listening to you, and it sounds like patches upon patches upon patches of legal fixes for a principled problem in that we have no constitution, no way, that has already defined all the things that the court can do, that the Knesset should do, etc. Do you feel that perhaps we’re coming to a precipice where it could be a constitutional moment? The President of Israel, Isaac Herzog, of course, has already asked for a pause. Let’s stop, let’s think, let’s redress. Let’s have a moment here. Is this possibly the moment?
I think that Israel has had few constitutional moments in the past, and I think that we cannot have any moment to talk, to think, to speak, to negotiate, to agree if we don’t have the certainty that what we will decide, that will be the case. You need to trust the system in order to compromise, in order to get to an understanding. If you would try to, you and I, not many people, let’s try, let’s do a draft of a constitution for the State of Israel. So you will say that I will say that, I don’t know exactly what your position on religion and state and you don’t know what exactly my points on free market — doesn’t matter. We’ll talk about the issues, all different kinds, and we’ll get to some kind of agreement. It will be nice. It will be meaningless because, okay, nothing will happen.
When you have a constitutional moment, you want to sit and talk and to know that whatever you decide at the end, whatever you draft, that would be the case in Israel because of the act of the court after the passing of the Basic Law: Human Rights and Dignity, and the Freedom of Occupation in 1992. There were other laws planned to be passed after that, but it stopped. And the reason that happened is because the people and the politicians saw the court basically hijacking the constitution. Meaning the head of the constitution committee for that time, Uriel Lynn, said that the Justice Ministry put in the draft Basic Law the ability of the court to cancel laws, that they put the equality clause inside the Basic Law. [He said] I took those out because I knew that if they will stay in, I wouldn’t get to an agreement.
Meaning? To get to have a basic law with human rights, dignity, some kind of bill of rights in Israel, something, they had to go. And part of the political compromise was to take out the judicial review and to take out the equality because of the judicial review. Again, the problem of a constitution in Israel was the court, because they said, we know what we mean when you say equality. We don’t know what the court will do with it, let’s put it outside. And that was the basis of the agreement to pass the Basic Law to start with.
And then the Court said, okay, you didn’t give me the power for judicial review. You didn’t give me the power to check laws based on equality. I will do it anyway.
Why would they ever agree to give any other power to the court if he misused whatever I gave him and took what the Knesset, trying to enact quasi-constitutional law or whatever, if there is no trust, that what I write, that’s what would be the case, that the Court will respect the constitution and the compromises that must come with it. You can’t have a constitution without compromise. Why would they compromise? Why would they talk? Why do I try to create a constitution?
So the first step in ever trying to make a constitution, half a constitution, a procedural constitution in Israel is the trust of the people, that whatever they decide will be respected by the court and by the other branches of government. We’re so far away from that day, and there is one person to blame [former chief justice Aharon Barak] on that.
So just to end with, in 2015, Aharon Barak was asked what will happen if the government says one thing and the court says something else. And he said something along the lines of, it will be decided by the tanks [Hebrew]. What do you think of that? And are we close to that?
I think that the second he said that he should have been sentenced and jailed. That’s not a sentence you say in a democratic country or at all.
But could it be just a practical fact?
That’s not a sentence to say. And the fact that the chief justice, the former chief justice of the State of Israel spoke like that shows you how far away he is from understanding what democracy is. If you say that the court can send the tanks on the elected government, then you don’t understand what the role of the court is, the role of the tanks, and not what the State of Israel is.
And I am terrified and deeply troubled by the fact that this guy was the chief justice and the chief legal adviser for so many years. That explains a lot. This sentence explains a lot. No other person that grew up in a democratic country and understands the basic fundamental ideas of democracy would ever think like that. Not to say speak like that.
And the fact that he talks about tanks, that’s terrible. Terrible. And I think that any person with a conscience should say, if there is any debate on what democracy is, I don’t know what’s my position, but I will make sure to check what was Aharon Barak’s position and be sure that I’m as far as I can from this position. He doesn’t know the first letter of democracy.
Simcha Rothman, thank you so much for your time.
Thank you.
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