The headlines accompanying the fight for the conservative revolution of Yariv Levin illustrate well the saying “The press is the first edition of history”. But to know if President Yitzhak Herzog’s initiative leads to national consensus, or will be forgotten as an unimportant episode on the way to the great conflict, we will have to wait for the second edition.
What made the president’s speech at the beginning of the week be accepted as a proper presidential speech was his tone more than his content. His words showed the internalization of the parties’ arguments and their plights, and especially the effort to make the arguments of each side accessible to the closed ears of the other side. One can agree with most of the president’s proposals, some or a minority, but overall it is a fair outline. The question is whether he will be able to start a dialogue instead of the dialogue that each party conducts mainly with itself
On one side stand many tens of thousands of protesters mobilizing with their hearts, legs and vehicles to repel what they are convinced is a real threat to democracy, impervious to any logical explanation that would convince them that their feelings have no dawn. They cling to their deafness to every contradictory argument, even though they fail to articulate a single reasonable argument, or even a real example of any single element of Levin’s conservative reform, which harms the democracy for which they set out to demonstrate with an emotional heart.
And on the other side of the barrier of deafness – from the sides of the reform who find it difficult to accept that a very large public of ordinary citizens has formed who are convinced, one way or another, that they are fighting for fundamental constitutional values. Therefore, even if the birth of this great public in sin and brainwashing is riddled with lies and fragments of truth, it is impossible to ignore the fact that these are people to whom the country is dear and cares – and therefore we must talk to them. Only an open public discourse that will be accompanied by a real discourse in the Constitution Committee, according to agreed discussion rules, will be able to give rise to mutual listening.
in their likeness and image
The central axis in the president’s outline is the “legislation” basic law, based on compromises and broad consensus. This is a procedure that will take many months to carry out properly. Regarding four of the five parts of the president’s outline – agreement on the main points of the platform in the outline is enough to start it. Its details can be discussed without preconditions and with an effort to meet halfway. The one exception is the fourth chapter of the president’s proposal, which cannot wait for the conclusion of the clarification regarding the “legislation” basic law.
This is the chapter that deals with the composition of the committee for the selection of judges, which does not tolerate delay: there are vacant judicial standards in the magistrates’ courts as well as in the districts. This understaffing seriously harms the citizens who suffer severe legal torture. There is no justification for postponing the appointment of the missing judges, along with a significant increase in additional judges. President Herzog did not leave any loose ends in this matter. He submitted to the parties a well-considered and precise formula on his behalf, which is evident in the dialogue with all the parties. Therefore, it can be accepted as a wife, and matter-of-factly – she should be the opening to the process.
The problem is that this is exactly the issue that has become the symbol of the public conflict surrounding the reform. The left presents it to the public, with a large degree of success, as the politicization of the judicial system. This success is exactly what infuriates the right. He sees it as a consequence of the brainwashing of those who do not respect the voter’s decision, and take advantage of the total support of the media, which allows the opposition to throw sand in the eyes of the public. And the media is indeed more fueling the demonstrations than accompanying them.
In the current debate, the left markets the issue of appointing judges by the government as the fathers of impurity, an improper and undemocratic phenomenon. But in fact he only means the appointment made by the right-wing government, since the court has always been appointed, in Israel as in most countries of the world, by politicians. Only in our case these were always politicians from the left. They appointed worthy judges, but those who, like any thinking person, had a world view, an ideology, and it can be assumed that even a political view. Later, these judges, together with the politicians – who share with them a similar worldview and also the same political cultural background – appointed judges who are the overwhelming majority in their likeness and image. This is after the delegations sent by Aharon Barak to search for Jews of Moroccan origin who have the capacity to judge, returned empty-handed from around Rehavia.
The truth that the channels of the ruling establishment hide from the protesters for democracy is that in the dark and undemocratic United States, the judges have always been appointed by politicians – and only by politicians. Moreover, in the current term in the US, all the judges appointed to the Supreme Court will be from the Democratic Party. This is as a result of the fact that the president who appoints the judges is also one of its ranks, and it also controls the Senate that approves them. Miraculously, despite this power given to politicians from the left, even Trump Accepts this reality with humility and resignation and does not incite thousands of Republicans to block the movement in Washington and storm the Congress to the sound of “democracy”. This is even though he knows that the exchange of two judges from the Republican majority is enough to bring about a revolution – and return the majority in the Supreme Court to the Democrats.
Just to illustrate: if the method of appointing judges that was used in Israel until today were adopted in the US today – three conservative judges on the committee voting as one (as is customary here in Israel) – they would have perpetuated the right-wing majority. It was proposed in the US to adopt the wonderful Israeli system “for which the whole world praises”. After all, the heart of the Israeli system with us is very simple: as long as there is an ideological identity between the representatives of the judges and the representatives of the left in the committee for the appointment of judges, it will never be balanced.
The balance that the authors of the articles talk about is always between the government and the judges: “Both sides have a veto”, they say with a self-righteous and dumbfounded eye roll. Indeed, thanks to the Sa’ar Law requiring a majority of seven out of nine members to appoint judges to the Supreme Court, the current coalition will have a blocking block of three members on the committee. But this is a partial and therefore false representation of reality. The real situation regarding the appointment of the judges is as follows: when the right is in power – then it at least enjoys a blocking block – two hold a blank and divide. But when the left is in power, a majority of eight members says it’s all mine, and the right is left, at most, with symbolic representation resulting from breakdowns within the majority.
The balance force
President Herzog, who understands that without solving the problem of appointing judges there will be no agreement, obscured the solution he proposed, which apparently gives the coalition a majority. The voices in Likud that support moving toward the President’s outline do a simple calculation: three government representatives, two out of three Knesset representatives, and one representative from the two representatives appointed together by the President of the Supreme Court and the Minister of Justice. As Menachem Begin said at the time: even a majority of one voice is a majority.
But on the other side, a different explanation is presented. The president and the minister of justice will choose two agreed neutral people, so in practice the decision will be in their hands and the practical symmetry will prevail. After all, when the Likud is in the opposition, the left will have a majority of 10 of the 11 members of the committee. In order to meet the President’s proposal, the Likud will have to agree to accept an extreme asymmetry – its majority will be by a hair’s breadth, while when it is in the opposition it will be in a void minority of sixty. But he will not be able to give up that, unfortunately, this majority will be clear and not subject to manipulation. Alternatively, if the left does not agree to give the coalition an advantage, however slight, a de facto balance can be reached from the opposite direction, by giving real weight to each opposition.
Two legislative moves that complement each other can produce this. According to this outline, it will first be established that the representative of the opposition will be appointed by the head of the opposition, and at the same time – it will be established by law that the decisions of the committee will be adopted unanimously. If the European Union allows a veto to each of the 27 members of the Union, the Commission for the Appointment of Judges can also do so. This section must be accepted by the Knesset with broad agreement and a significant majority, when a change will require at least the same majority. This is to prevent the future coalition from depriving the representative of the head of the opposition of the power of balance in the committee.
Along with the difficulty in creating a consensus that would ensure a long-term balance in the selection of judges, there is a significant advantage that it entails: the prospect of a potential balance will greatly dull the edge of the other disputes. In a balanced court, it is possible to compromise on the privileged majority required to repeal laws, and on the majority required to overcome the repeal. Also eliminating the cause of reasonableness in conflicts between the authorities and citizens – as opposed to public-political issues – is also not desirable in the eyes of many in the coalition.
The writer is the president of the Likud court