Who should lead the struggle in Israel for the judiciary's defense?

MIDDLE ISRAEL: Netanyahu’s refusal to seek a consensus repeats Rabin’s mistake when he launched the Oslo Accords.

Former Chief Justice of Supreme Court and holocaust survivor Aharon Barak at the President's residence in Jerusalem, on April 4, 2021. (photo credit: YONATAN SINDEL/FLASH90)
Former Chief Justice of Supreme Court and holocaust survivor Aharon Barak at the President's residence in Jerusalem, on April 4, 2021.
(photo credit: YONATAN SINDEL/FLASH90)

The war has been declared, the lines have been drawn, and the battle has been engaged, but only one side – theirs – has a prophet, a commander, a plan, and an aim.

The prophet is the justice minister who declared the war, the aptly named Yariv (“he who will quarrel”) Levin. The commander is Defendant Number One, the prime minister. The deputy commander is Convict Number One, the deputy prime minister, Arye Deri. And the plan is to first castrate the Supreme Court; then besiege, replace and subdue its leaders; and then cut short the commander’s day in court.

The plan constitutes political war, because it sets out to impose a constitutional revolution unilaterally – in total disregard of a genuine constitutional quest to reflect and foster the consensus, enshrine the structure that will uphold it, and protect it from any future government’s whim.

Levin’s effort, by contrast, is designed to provoke millions, crack the system’s foundations, and serve several individuals’ momentary needs. That is why the unity and discipline that this assault’s masterminds are displaying are so vital for their scheme’s success.

That this is a tragedy for the Zionist enterprise goes without saying. Yet to make things even worse, the anti-judiciary assault’s careful planning and clarity of purpose are the perfect inversion of what the pro-judiciary camp has so far displayed. 

 MK Simcha Rothman and Justice Minister Yariv Levin present next steps for judicial reforms at Knesset legal committee. (credit: MARC ISRAEL SELLEM) MK Simcha Rothman and Justice Minister Yariv Levin present next steps for judicial reforms at Knesset legal committee. (credit: MARC ISRAEL SELLEM)

Defenders of judiciary should have coordinated before speaking

THE FIRST thing the defenders should have done was to meet, talk, produce a plan and speak with one voice, beginning with a joint press conference of all major opposition leaders flanked by jurists, academics and literati. What has so far happened is the very opposite.

Exposing a total misunderstanding of his political situation, National Unity party leader Benny Gantz ignored opposition leader, Yesh Atid head Yair Lapid, publicly bypassing him with a call to Benjamin Netanyahu to negotiate the plan with a multi-partisan forum.

In itself, that call’s rationale is actually sound. Constitutional reform, as this column has just argued, demands not only a majority, but a broad consensus. However, before dialoguing with Netanyahu, Gantz must first dialogue with the leader of the opposition to which he belongs. That’s not what he did.

Gantz apparently fails to digest this, but the fact is that Lapid’s 24 Knesset seats are twice the National Unity’s 12. At this writing, it isn’t clear whether Gantz tried to approach Lapid before making his unilateral move, but for his idea to fly anywhere it had to be backed by Lapid, and announced by the two of them jointly, along with Yisrael Beytenu head Avigdor Liberman and Labor leader Merav Michaeli. Having failed to form such a front, Gantz’s initiative expectedly nosedived at takeoff.

Having said this, Netanyahu and Levin would most likely have rejected the idea of dialogue no matter who presented it, because it negates a major feature of their tactic, which is to work so swiftly and sweepingly that the plan’s stunned opponents will have no time to pull their act together.

It is the same attitude with which Yitzhak Rabin launched the Oslo agreements. Charge ahead, ignore the opposition’s size and feelings, and impose unilaterally what demands dialogue. It was a tunnel vision that produced violence then, and it’s a tunnel vision that will produce violence now.

That, then, is what has so far happened on the unfolding war’s political front. On the jurists’ front, things are even worse. 

Barak should not lead the charge against the reform

THE OPPOSITION’S ideological case was taken up by former Supreme Court president Aharon Barak, who in three TV interviews effectively volunteered to lead the pro-judiciary camp. He is the last man they should consider.

Barak sowed the seeds of the current crisis during his 11-year presidency, inspiring an era of judicial activism that antagonized a critical mass of Israeli society.

Barak’s judicial activism, which assumed that “anything is judge-able” and that the judges should not only interpret the law, but also rule what is “reasonable,” was challenged not only by partial politicians, but also by impartial academics and jurists.

Critics of Barak’s activism included former Supreme Court president Moshe Landau (1912-2011) and former vice president Menachem Elon (1923-2013) as well as Israel’s leading political scientist, Hebrew University’s Shlomo Avineri; former Tel Aviv University Law School deans Menachem Mautner and Daniel Friedmann, and the world’s foremost expert on Israel’s constitutional law, Amnon Rubinstein.

Incredibly, in his interviews, Barak assumed no responsibility for his role in the judiciary’s plight, which is fed by well-argued charges that under his leadership the court positioned itself above the other branches. That is why Barak, too, must be sidelined as the judiciary’s defenders prepare to fight for its soul. The battle must be led by someone who is open to criticism of the Supreme Court.

Moreover, the leader who will unite and speak for all citizens appalled by what Netanyahu, Levin and Deri have concocted, must be no jurist at all, and also not an active politician.

To derail the attack, the counterattack’s leader must be a member of the political Right, an embodiment of Menachem Begin’s combination of nationalism and liberalism; someone like former education minister Limor Livnat or former defense minister Moshe Ya’alon, both of whom have crossed 70 but are healthy, energetic and now also fuming.

Such Middle Israelis, unlike Yair Lapid or Benny Gantz, let alone, Aharon Barak, can make right-wing liberals jump the ship of fools into which they have been pushed.

Conversely, if conducted the way it has been in its first days, the struggle for the Israeli judiciary’s soul will not even tickle the phalanx that from under its shining helmets, thick armor and sharpened spears is now staring at our Supreme Court’s facade, ready to storm its gates.

www.MiddleIsrael.net The writer, a Hartman Institute fellow, is the author of the bestselling Mitzad Ha’ivelet Ha’yehudi (The Jewish March of Folly, Yediot Sefarim, 2019), a revisionist history of the Jewish people’s political leadership.