Prime Minister Netanyahu decided to move forward the judicial reform by passing a law limiting when and how judges can rule based on what seems “reasonable” to them. What, in Israel, has ever been reasonable?
This is a segment from The “Paragons of Reason?” Edition.
Automated Transcript:
And now it’s time for our first discussion. So, Ohad, not to get too philosophical, but who’s to say what’s reasonable and what’s not reasonable? Emmanuel Kant. It’s true. He read a few books about that. Specifically about reason, even.
Following last week’s debacle at the Knesset, when only one of two MKs that the legislature is required to elect to the judicial selection committee was chosen, delaying the constitution of the committee by another month, causing opposition leaders Elapide and Beni Gantz to freeze their participation in the negotiations at the president’s residence, participation in negotiation at the president’s residence. God damn, Noah, that’s a long sentence. That sentence is the whole paragraph. It’s not even over yet. Should maybe get a drink of water and take a little break? Yeah, no, I think I’ll just go. This sentence is 119 words long. I’m gonna power through. Participation in negotiation at the president’s residence over the judicial reform, or coup, Prime Minister Netanyahu pronounced at his weekly cabinet meeting that his government will immediately “take practical steps to reform the justice system,” meaning, apparently, that he will work to pass a law limiting the use by the courts of the “reasonableness doctrine” as one of their tools for reviewing decisions by the executive and legislative branches of government.
We made it. We survived. Who writes that shit? I don’t know. In the Latin, than we have to speak at Princeton. In fact, Netanyahu planned for such a law to be hammered out yesterday, as we record, at a meeting of Knesset Constitution Law and Justice Committee so that it could be brought next week to a vote in the plenum. In the event, the committee postponed its discussion on account of the terrorist shooting at a gas station Hormuz stand near the West Bank town of Elie the day before that left four Israelis dead and made it unseemly to hold a sure-to-be-conflictual meeting before the four were even buried. So plans are to start the bill on its way to becoming a law next week instead.
The “Judicial Reform” or “Judicial Revolution” or “Judicial coup,” call it what you will, that Minister of Justice Yerev Levine first presented in a press conference on January 5th had four main elements. This is a recap. First was changing who chooses judges, giving the majority in the Knesset a commensurate built-in majority on the judicial selection committee. So basically, whoever formed the ruling coalition gets to choose judges, rather like they get to choose ministers. Second was greatly limiting the power of the courts to void laws passed by the Knesset, especially basic laws, over which the Supreme Court would exercise no oversight. Third was diminishing the power of the legal councils who serve each ministry, the Knesset, municipalities, and other government bodies, allowing them to advise elected and appointed officials who serve in these bodies but not to overrule their decisions. And the fourth and final element of the reform evolution coup was doing away with the legal “principle of reasonableness” as a standard of judicial review. No longer would judges be able to disqualify government decisions or political appointments on the ground that they are unreasonable in the eyes of the judge.
Right now, for the time being anyway, Prime Minister Netanyahu proposes that only this fourth element of the reform-evolution coup be passed into law in this Knesset session. What Netanyahu seems to have in mind is legislating a proposal put forth by Supreme Court Justice Noam Solberg wherein the courts would no longer have the right to nullify decisions by elected politicians, including political appointments, on the grounds that these are unreasonable. However, the courts wouldmaintain the right to cancel decisions and appointments by bureaucrats and appointees if the judges think these are unreasonable. They would also continue to have the right to intervene when they judge a political or bureaucratic decision to infringe on fundamental individual rights, though not on the grounds that they are unreasonable, but rather on the grounds that they impose a disproportionate hardship on the individual whose rights are infringed upon.
For some reason, this is a distinction that is important to Solberg. To some of the supporters of the judicial reform revolution coup, bringing just Solberg’s watered-down reform of just the “reasonableness” clause is weak tea, a small, mostly symbolic act that will hardly, if at all, shift the balance of power between the courts and the other two branches of government, the legislature and the executive. To opponents of the Judicial Reform Revolution coup, it is a big deal that will destroy the ability of the courts to oversee the other two branches.
Opposition head Yair Lapid tweeted a video in which he said that the law Netanyahu is advancing is “total surrender on Netanyahu’s part, T.E.V. Levine, and his gang. It is a full-blown judicial coup, shattering democracy, shattering the Supreme Court. It is a moral blow to the economy. It jeopardizes Israeli security and the destruction of our foreign relations.”
Alison, you wrote an excellent explainer about all this for Haaretz. We will, of course, put a link in our notes for our good listeners, where you set out what’s at stake with all, including the political future of Chasse party leader Aria Derry. So please, explain away. What should we make of the law Netanyahu is advancing to limit the reasonableness doctrine? Is it small potatoes? Is it all the marbles? Or is it some other metaphor about round things you buy in a bag?
Yes, I stayed late in the newsroom writing the explainer because it was very important because it was all going to be unpacked the next day. And then, you know, there was terrorism and obviously, I’m very sensitive to the loss of life, and it was sad and tragic for other reasons. But of course, my first reaction was like, “Damn those terrorists, it made my explainer irrelevant.”
They say it’s coming up on Sunday, so it will soon be relevant again.
Yeah, well, you know, the good thing about explainers is they can always be recycled, especially in this country, because everything happens again. I’m no legal scholar like my husband, but it does seem to be very significant to take this power away from the judiciary. And we always have to remember, this isn’t like the court spontaneously stepping in and saying, “I think that’s bad. I think that’s…” These are people petitioning to the court, citizens. This is giving citizens recourse to say, “Wait a minute, this law is really screwing me over, guys. Let’s take another look at it.” And it has a recourse beyond the legislature looking at the judiciary. The weirdo distinction between decisions by politicians and decisions by bureaucrats, okay? So if it’s a Ministry of Education decision, how do you decide if that’s a minister’s decision or if that’s the head? I mean, that distinction seems to be completely ridiculous and meaningless. So yeah, I think canceling the clause is a really big deal.
That said, the legal scholar to whom I happened to be married way before all of this mess started did write an article about the reasonableness clause and gave examples of ways in which it isn’t necessarily the greatest thing that the judges have the last word because the judges are looking at this case sort of in a microscope or a microcosmand he gave the very famous and much-cited example of protecting the classrooms in Stereote against the missiles. The Ministry of Defense had decided, okay, with the little kids, you have to reinforce all of the classrooms against missile fire. But with the bigger kids in a bigger school, you can say, okay, these classrooms are reinforced and you get the siren, and all the other kids can run to that reinforced classroom. You know, and that’s the plan we’re going to do because it’s just too expensive to reinforce every single room in the school. And the legislators were taking into consideration their budget considerations, and it’s the defense ministry. So if we take money and put it to that, other things are not going to get addressed, and other places will be in danger. So they see the whole spectrum of decisions. And the court looks at it in a microcosm and says, “No, sorry, it’s not fair for these kids to have to run to a classroom under a missile attack. You go spend that $2 billion or whatever it costs to protect every classroom.”
So there is some legitimacy to questioning whether the judges should have this final say, should have this final word in what they consider reasonable or not reasonable because they’re only considering this case, and the bureaucrat/politician/ministry has to look at it in a wider sense. So I think that the reasonableness clause and standard does need to be maybe questioned or tinkered with or nuanced, you know, in many of the ways that all of these reforms, none of us are against having reform per se, but doing it in a super sweeping way or making these weird, as I said, strange distinctions between politicians and bureaucrats, I don’t think makes a lot of sense.
You touched on what, to me, seems like the absolute most important thing, the matter of principle. But I’d also like to ask you to talk about something that you, I think, described interestingly and well in your article about Aryeh Derry. Like the reason why it seems to me politically why this is the first thing coming up and why it’s coming up with such force, and why Netanyahu was unable or unwilling to let this, like the rest of the potential reform, just wait for some, some future, who knows when it will come, is because changing this is the thing that people, some people think and hope will allow Aria Derry to come back and become a minister. Again, he was, in fact, a minister of two different ministries before the courts decided it was unreasonable for him to serve. So can you describe that a little? Yeah, so it’s very touchy because he’s been, you know, basically a fox in the henhouse, right? This guy has been convicted of, you know, messing around with funds and money twice. And now he’s supposed to be because he was, you know, the major coalition partner, his party got plenty of votes. There was a Democratic mandate for the Shas Party as headed by Aria Derry to have power. And, and Netanyahu wants to appoint him again as interior minister, you know, the place where the crimes he was convicted of were committed. And the previously, when it was brought in front of judges, they were like, no, a minister who has been indicted for crimes or while they are minister during their term is indicted for crimes, should not be minister. He needs to be fired. He needs to be removed. Now, why this is super touchy is that it applies to all ministers except for the prime minister. And what do we have right now? We have a prime minister who is not only indicted but is on trial for crime. So it is difficult politically from multiple angles for Netanyahu not to give Derry his ministerships. He wants to give him health and interior. Number one, because again, the people have spoken and they said that they want Aria Derry and so who is he to not give him what his political due? And number two, it’s a little bit absurd, right, for Aria Derry to be denied power and for Netanyahu to be, you know, continue to be prime minister and to be your elected prime minister without any judicial interference, which is, you know, which is the world we’re living in right now.
It’s also worth saying that the Supreme Court did not accept the petition to stop Netanyahu from becoming prime minister on the grounds of the reasonableness clause. And people brought that petition to the Supreme Court and they said, no, this is taking the interpretation a little too far and we’re not gonna stop Netanyahu. So how is it reasonable for an interior minister to not be allowed to hold his seat because of crimes, but for the prime minister to be allowed to, you know, so it’s all unreasonably unreasonable. Well, um, and just to, to, to say even more why, um, to explain even, even more fully why the judges, um, decided that Aria, it was not reasonable for Aria Derry to serve. he, in his hearing, which ended with him getting a suspended sentence for the relatively small tax infraction that he was most recently tried for, he promised that he would leave government. And, um, and he did leave government. He left the Knesset and he remained the head of his, of the Shas party. And then, and then there was just several months after that, a new election. He did quite
well in the new election. His party did, and he came back and said, “Okay, now I’m no longer leaving government,” and that was part of what they said was unreasonable, which is unreasonable. But here’s the thing: I think he said he was leaving government for a period of time, but an undefined period of time, right? And so, the… and this was a very, very short period of time. And the thing about it is, it does point to what, for me, remains the real problem with this doctrine of reasonableness or unreasonableness, which is that it puts in the hands of the judges a lot of power and also a lot of responsibility to make these amorphous judgments that aren’t linked to anything that is written that we can all agree about. There’s no text to interpret. So you have this person who, from the bench in the robes, says, “I believe that this is unreasonable.” And if you agree with him, then it just seems like, “Oh yes, he is referring to universal canons of reasonability that we all accept.” But if you don’t agree with him, it just seems like he’s making that shit up. And it’s really bad. I mean, it’s a really bad position for the courts, and it’s bad for the kind of the political culture in general to have people have this ability to just say, “Well, it seems to me, speaking from my position. And so that’s why.”
But there is good stuff that does come out of it. For example, having all of these classrooms reinforced in Stérot. And for example, another thing that I cited in the explainer was Lea Shaktiel being appointed to a religious council that the Religious Affairs Ministry can’t just say, “No, sorry, you know, you can’t be on this religious council because you’re female, that’s discrimination.” And, you know, even though it’s not laid out in the law, the court says, “No, that’s wrong. That’s discrimination. You know, you are also giving them power to do good shit too.”
Absolutely. I’ll just add on in terms of the information that this is a difficult topic to understand for us, let alone, I don’t know, for people listening, to just… this is that it seems to me that this idea of reasonableness weighs on the question of balancing of interests. Like, from what I read, you know, the minimal things that I read, the court is allowed to say that something is unreasonable when the question is of a really, really, really great imbalance in any kind of executive decision that tends towards personal interest over public interest, for example, or that tends towards a financial or fiscal interest versus a public good, right? Like in the example of the classroom. So it’s not just unreasonable in its very general sense. That’s something to be said. And I think that the question here, the thing that I’m conflicted about at least, is the question of principle, right? So it seems to me that on the one hand, I haven’t been here for a while. I wasn’t here for the big protest. I don’t really have my finger on the pulse in this way, but it seems to me that people are really, really, really scared and really up in arms about this proposed judicial reform. Like my friends, my friend’s parents, you know, it seems that everybody is really anxious about these proposed changes and are really solidly going out to protest for weeks and weeks and months and months and months, which is something I have never seen here before in my lifetime.
We’re tired, it’s your turn while you’re here
No, absolutely not. (laughing) And the point of all this is to say that coming from the outside and not being so anxious about this, maybe just because I wasn’t here for most of it, it seems to me that this decision on its face actually makes sense. The decision to do away with this clause. Yeah, it seems to me that in a democracy, leaving such a large space for interpretation is problematic, especially if historically, as the right says correctly, the Supreme Court is of a certain class and a certain background and a certain political leaning that makes its common sense something quite consistent and also consistently different from the common sense of the past ex-elected governments that we’ve had in this country. But then on the other hand, and then the conflict comes in because it seems to me that people are rightly saying, “We’re on a slippery slope. And if we accept any little piece, if we budge at all on this reform, then that means we’ll let the devil all in.” And I honestly don’t know. I think that at this point, it’s a question of political strategy. I don’t know if the right way to go is to negotiate with the right, to accept some of the reform, to try and reach some kind of middle ground where both sides are unhappy, but a little happy, or keep pushing this hard line. I really don’t know what’s gonna be better in the long term for the benefit of everyone here, but I do think that there is a tension there that we need to try and figure out.
I mean, in the world that doesn’t exist, in which these negotiations are actually happening and working, you could see a situation, among the list of compromises, for example, on the override, like, yeah, have an override, but not with a simple majority, have 90 or 100 or whatever, and from the opposition, you could see that as a compromise. And you could see, potentially because of what Ohad said, the opposition compromising on, okay, yeah, let’s get rid of reasonableness, but keep your hands off of the judicial selection committee, in sort of a quid pro quo trade. It’s true that this is a soft spot in which I think there could be compromise possible because I think reasonable people can see that there’s a problem with the reasonability doctrine.
Yes, I think that you’re all right about all of this…
The one thing that seems to me to be clear, apropos the question you asked, Ohad, is that it’s not a good idea for Yair Lapid to say, “This, if this passes, it’s the end of democracy.” Like this, the sky is falling, this inability intellectually even to say, “If we weren’t so worried that you weren’t going to use this as the beginning of a revolution that really would be the end of democracy, we would talk to you about this,” and instead to say, “If you pass this thing, then we will no longer be a democracy, we will be a dictatorship.” That just seems like a mistake. Like at least we have to be able to distinguish, certainly among ourselves, but also I think in public, between the intellectual issues and the political issues. And I think that all of us are smart enough to be able to deal with those distinctions. And so this rhetoric of, “Oh my God, we’ve just become Nazi Germany every single time,” I think is problematic. Now listen to this.
