Israel's Judicial Reform Democracy in Action, Not Its Destruction

The time has finally arrived, to fully explain, in concise, clear language what the upheaval in the streets of Israel is all about.

It's time to ebaborate, objectively, what comes next on the agenda of judicial reform in Israel.

Spoiler alert: if you think these protests were heated — it's only the beginning.

Why?

We would be wise to prepare ourselves for the next set of reforms, and the reactions they will engender. 

To date, the pictures we’ve seen and the speechifying we’ve heard, both for and against judicial reform in Israel have, for the most part, been hyperbole.

The hotly debated law just presented to Israel’s Knesset, and passed by that same body of its 120 members, was just a tiny segment of the judicial reform bill originally presented to Israel’s parliament.

Prime Minister Netanyahu separated out the "unreasonableness clause" from the larger package because it was easier to sell in fragments and because that segment was, he reasoned, less problematic than the next section.

So what’s in that next, more problematic section?

The who and the how of selecting and promoting judges.

That section has, understandably, proven thus far, to be more prickly and far more emotionally- laden than what we have witnessed until now.

Given its ambiguous title, it's important to understand exactly what the "unreasonableness" clause was and is. "Unreasonableness" was a test that the Israeli Supreme Court used to evaluate cases where no law was germane or specific, especially regarding the actions of political leaders and political bureaucrats who may have overstepped their authority.

For example, Aryeh Deri — a long time political figure in Israeli society, a rain maker and often times member of the Knesset, was twice convicted while serving in that legislative body.

Twice!

Deri was convicted of corruption and tax fraud.

Before his second conviction, Deri rapidly resigned from the Knesset so that the "moral turpitude rule," which would have prevented him from holding office for seven years, would not kick in.

But in his settlement and sentencing hearing, he agreed that he would no longer serve in Israel’s government. He was also handed a three year prison sentence.

That was in 2000.

Now, fast forward to 20 years later.

Deri was elected, once again, in 2022.

He was appointed minister of health and deputy prime minister in January, 2023.

Aryeh Deri claimed that his plea agreement encompassed only the government that was in power at the time of his conviction and sentencing — not the current government, or any new government.

The Supreme Court ruled no — and forced Prime Minister Netanyahu to fire Minister Deri.

It was the "unreasonableness" standard giving the highest ranking justices in the country the authority to overrule the prime minister and force the replacement of a minister.

The court ruled that it was unreasonable to conclude that Deri’s agreement was intended for that moment in time and that moment only.

The court ruled that Deri could remain in the Knesset because he was duly elected — but he could not serve as a minister because a minister is an appointed position.

Israel’s "unreasonableness" rule should not be unfamiliar to U.S. citizens. 

It's not dissimilar to the U.S. super-constitutional rule of "judicial review," when the U.S. Supreme Court in Marbury v Madison, 5 U.S. 137 (1803) took upon itself powers not defined in the U.S. Constitution, to strike down a law that was "unconstitutional" under the supremacy clause of Article Six.

In his decision, then U.S. Chief Justice John Marshall ruled that "judicial review" gives the Court, what was known as the Marshall Court, new powers and strength that made the Court an equal partner in the checks and balances of the United States government.

Another U.S. rule, also very similar to the "unreasonableness" rule in Israel, is called "The Rational Basis Review." This rule was first applied by Oliver Wendell Holmes in a famous dissenting opinion in 1905.

He wrote:

"[T]he word 'liberty', in the 14th Amendment, is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law."

In other words: what would a normal person infer?

Is it rational?

Is it reasonable?

This reform is miniscule relative to the next stage — reforming the Judicial Selection Committee.

As of now, the Judicial Selection Committee is comprised of members of the bar association, and of judges.

They are tasked with selecting the judiciary, and elevating judges to higher courts.

In many instances, the judiciary was choosing its own replacements.

Reformers rightly point out the numerous problems in having judges select judges and having a committee absent  any accountability to the voters.

One reform already implemented was to add a member from both the opposition and from the governing coalition from the Knesset to the selection committee.

Two additional people, each of whom was elected to Knesset, joining the other members of the committee who are academics and judges.

No diversity. A narrow sliver of Israel’s elite.

About this segment of Israel’s judicial reform, this writer neither seen nor heard any suggested compromise.

Just a time "freeze."

A "freeze" does not solve the issue, it allows for time to discuss potential compromises.

Reformers want a new committee. Anti-reformers want things to remain as is.

Their position is that if the committee were to reflect the Knesset, it constitutes a rubber stamp for the governing party.

And that means that the legal system becomes political.

This is where the big problem rests. What we have witnessed so far will look like child’s play. But is it the beginning of the end of a democratic Israel?

This writer doesn't believe that it is.

He believes it's an exercise in democracy, not democracy's demolition. 

Micah Halpern is a political and foreign affairs commentator. He founded "The Micah Report" and hosts "Thinking Out Loud with Micah Halpern," a weekly TV program, and "My Chopp," a daily radio spot. Follow him on Twitter @MicahHalpern. Read Micah Halpern's Reports — More Here.