The Four Camps of Israel’s Judicial Overhaul

February 24, 2023 – ג׳ אַדָר תשפ”ג

Greetings from Tel Aviv! Despite our preoccupation with the impending judicial revolution and the grave threats to Israel’s democracy, there is nothing quite like being here. Being here during this crucial moment in Israeli and Jewish history leads one to ponder the purpose and the goal of having a Jewish State as the manifestation of the Jewish people’s national aspirations and the fulfillment of our joint fate and destiny. As I joined multitudes of Israelis pouring into the streets at protests outside of the Knesset and running marathons through the streets of Tel Aviv.

Is the notion of a national project passe?

The great Labor Zionist A.D. Gordon was a major champion of a national endeavour. However, he taught in his work, “Partnership and Creation in the National Project: Letter to the Diaspora” that in order for us: “to find our true ‘national soul,’ our pure national self, each individual had to look into their own selves, and realize their own being. But, unquestionably the task of identifying our national soul – or the binding fiber of Jewish fulfillment and actualization – was the aspiration.

Our parashah this week, Terumah, lays out the quintessential national project: After centuries of slavery, we, as a free people wandering in the desert, needed a central institution. And we needed to build it together. It would be a unifying project that would serve all of the tribes equally. At the outset God speaks to Moses telling him to give very detailed instructions to all of the Israelites – a quasi “how to build a Mishkan for dummies” volume. The details aren’t terribly important right now, as it’s all about the creation.  It was a project to unite the people and establish יהוה as their supreme and central source of authority. But what if the tribes would disagree?  What if one tribe believed firmly that the national project should look one way and another believed with complete determination that it should not?

We don’t see such disagreement in the Torah (this week), but that is exactly what is happening now in Israel.  Different tribes, camps, or ideological schools of thought are advancing their version of what they think the national project should look like and how it should function.

Being here in Israel this week, I felt the impending doom of the judicial revolution as the legislative process has been shot out like a cannonball and is pummeling its way through the Knesset.

I would like to suggest that, within the ruling coalition, there are 4 distinct camps/schools of thought/interests in pushing through these Reforms.

1. MK Simcha Rothman and Justice Minister Yariv Levin:
   The Rothman/Levin camp has been waiting for this moment. As soon as the coalition government was ratified they got to work. Rothman is racing ahead with a more radical overhaul than that of his ideological twin, and this week succeeded in getting two of its elements through a first vote: giving the government the power to appoint judges without a countervailing force to serve as a balance and depriving the High Court of Justice of the authority to overturn Basic Laws.

The Rothman/Levin camp is a staunch ideological camp that does believe in democracy – as they interpret it – and have felt that the Supreme Courts simply have too much power. Their position can be summed up in the following way according to MK Rothman:

“What I am saying is that the executive branch has a sea of checks and balances. The legislative branch has a sea of checks and balances. And there is only one branch – the judicial – that has neither a check nor a balance. All I am doing is placing checks and balances on it.”

While they claim to be willing to make compromises on their “reforms,” it will only be after they pass a round or two in the Knesset. Their camp has been working closely for the last several years with the Kohelet Forum – the right-wing think tank behind much of the judicial overhaul – and they feel that the protests are less about the content of the proposals rather more about the fact that the left lost.
Their gripe with the Supreme Court essentially boils down to this:

“We don’t think the Basic Law of Human Dignity and Freedom should be above other laws, so we’re going to radically change the power and independence of the court regardless of whatever irreversible damage is caused.”

2. Ministers Betzalel Smotrich and Itamar Ben Gvir:
   While they have been less vocal about the role of the Supreme Court their bone to pick has everything to do with the future of West Bank Settlements, legalizing lethal use of force, and further suppression of Palestinians in the name of security. They have moved quickly in legalizing outposts in Judea and Samaria, passed an initial reading of a bill that would negate the disengagement law of 2005 to reinstitute the 4 Settlements in Northern Samaria that were dismantled, and have pushed their way into having authority over the Coordinator of Government Activities in the Territories (COGAT) and the Police. Smotrich, Israel’s Finance Minister has been handed broad authority over civilian issues in the West Bank, enabling him to deepen Israel’s presence in the West Bank, increase settlement construction and thwart Palestinian development.

Theirs is an ideology of Jewish supremacy, messianism, and racism.

Their gripe with the Supreme Court essentially boils down to:

“We want to pass racist and unconstitutional laws, and gosh darn it, that pesky Supreme Court won’t let us!”

3. The Haredim and ultra-Orthodox camp:
   They are looking to solidify specific laws that will impose strict Jewish laws over the public space. Some of the recent laws are to prohibit bringing chametz into hospitals during Pesach, gender segregation of Israel’s national parks, and a bill to expand the powers of state-run rabbinic courts, giving them the authority to again hear civil cases.. That passed 58-43. This will be a “demo-catastrophe,” especially for women’s rights in ultra-Orthodox communities. A State cannot have two parallel legal systems.
   Their gripe with the Supreme Court essentially boils down to:“We want to impose our way of life on the entire country and insist on an override clause of 61 MKs so that that pesky Supreme Court won’t get in our way!”
4. Prime Minister Netanyahu:
   No one has accused PM Netanyahu of being a pure ideologue (despite his having laid out his ideology in books and memoirs), but he is certainly in a camp of his own. It is clear to most that he is doing all this to avoid the outcome of his criminal trials and now has to pay the price of the unmaking of a system initially set up by his own party in the 1980s and 90s and which he likely supports. It is hitting him where it hurts as he is frantically trying to hold on to the high-tech start-ups and millionaires who feel a sense of instability thus transferring their money elsewhere.

When these four camps come together in coalition it creates a disastrous recipe that could potentially end up, not only dismantling Israeli democracy as we know it but also rendering Israel an undesirable pariah state among the nations.  Millions of Israelis and people around the world are working hard to prevent this – namely a 5th camp – the Opposition – who is fighting tooth and nail against what many of them see as severe damage to the country they represent (but more on that next week).

We are not only fighting for the soul of our national project but doing all we can do to ensure that it will survive.

Shabbat Shalom and Hodesh Tov!