What’s to stop the next government from reversing judicial reform?

Opposition leader Yair Lapid has repeatedly said he will roll back everything on the day he returns to power.

By David Isaac, JNS

Prime Minister Benjamin Netanyahu has called for a “timeout” on judicial reform to give dialogue a chance. He also promised his supporters that reform will get done. If negotiations fail, and the coalition pushes through reform anyway, the opposition has promised to reverse it once it’s at the helm.

Opposition leader Yair Lapid of the Yesh Atid Party has repeatedly said, as he did in February at the Knesset, “On the day we return to power, all these changes will be canceled.… We will fight against all this insanity with all our strength.”

Two analysts JNS spoke with, despite holding opposite views about the reform, said that’s unlikely. Russell Shalev of the Kohelet Policy Forum, who supports the reform, and Amichai Cohen of the Israel Democracy Institute, who opposes it, agree that the opposition will not want to give up the reform’s benefits because the reform takes power away from judges and gives it to elected officials. Politicians would, therefore, have an incentive to uphold the new system.

“The basic idea behind all these reform proposals is democratic accountability—increasing the public’s ability to decide on the policies that influence our faith, our politics, our country,” Shalev told JNS. He noted that the most important proposal advanced so far, up until Netanyahu froze the legislative process on Monday, was a bill to change how judges are selected by nullifying judges’ control over the Judicial Selection Committee.

“The reform gives the public [through its elected officials] the ability to appoint judges. So I have a hard time believing that should this be passed in the future, a left-wing government will give up its newfound power to decide who will be the judges,” he said.

Once they receive more power…

Cohen, despite having an unfavorable view of the reforms, believing “they would significantly undermine the identity of Israel as a democratic state,” nevertheless seconded Shalev’s assessment. “Once they receive more power, will politicians be willing to give it up? I don’t think so. They believe that they should be in control and they won’t want to hand it back,” he said, adding that he opposes politicians from either side having “unbalanced, unchecked power.”

Shalev disagreed that politicians will gain unchecked power, noting that elections act as a check. “There is a lot of misinformation about the proposals—how the coalition will have no checks and balances and can do whatever it wants; how giving it the power to choose judges is such a terrible thing. But in a democracy, the coalition today is the opposition tomorrow and the opposition in four years will be the majority. It’ll be the other side that chooses the judges and will be able to promote its policies. There’s nothing here that warrants the apocalyptic rhetoric that we’re hearing.”

Jerome Marcus, an American lawyer who has written extensively on Israel’s legal reform, took a more pessimistic view about the chances reform will stick, even assuming the legislative freeze thaws and the government resumes it. In his scenario, the opposition won’t get a chance to reverse it because the Supreme Court will strike the reform down.

“I don’t know what happens then. There’s no road map here. It’s the very definition of a constitutional crisis,” Marcus told JNS. “But I think the likelihood is very strong that the government would fall and it’s certainly good odds that the next government would not be a government that supported these proposals.

“They probably would be delighted to reverse whatever was enacted, but again I think they won’t have to reverse anything because the Supreme Court will already have struck it down.”

Marcus said he thought the government, and not the court, would fall because cracks had already appeared within the Likud Party before Netanyahu made his announcement calling for a timeout.

While Justice Minister Yair Levin warned the Supreme Court on March 20 that he wouldn’t accept a court decision overturning judicial reform, and was echoed by another architect of the reform, Knesset member Simcha Rothman, Economy Minister Nir Barkat of Likud said a day later he would accept the court’s decision. Other Likud MKs called for a temporary halt to the legislation.

The coalition has a five-vote margin in the Knesset and it won’t hold on to enough MKs to see the battle between the branches through, Marcus predicted. The court, on the other hand, will be of one mind, “which is the problem this reform attempts to address in the first place. They all think alike.”

Judicial reformKohelet Policy ForumYair LapidYariv Levin