An Effort to Resolve Israel’s Impasse Stalls on How to Pick Judges
On the streets of Israel and in the corridors of power, a standoff over the government’s plan to take greater control over the country’s courts was as heated as ever on Thursday.
Protesters opposed to plans by the government to overhaul the judiciary clashed with police in Tel Aviv on Thursday and also scuffled with counter-demonstrators, angered by Prime Minister Benjamin Netanyahu’s refusal to compromise on the issue.
Mr. Netanyahu on Wednesday rejected a new proposal made by Isaac Herzog, the country’s mainly ceremonial president. Mr. Herzog, in a nationally televised address, sought to resolve the impasse that has divided the country and warned that the issue might even prompt a civil war.
The right-wing coalition led by Mr. Netanyahu that took power in December is trying to significantly reduce the ability of the Supreme Court to check parliamentary power while giving the government much greater control over who gets to be a judge at every level of the judiciary, including the Supreme Court. The government says this would strengthen Israeli democracy by giving unelected judges less power over elected lawmakers, but critics say the changes would destroy one of the few restraints on government overreach.
Mediators, including the president, said that consensus had already been found in private on most parts of the overhaul during closed-door meetings between government leaders, their supporters and legal experts opposed to the plans. But participants said that efforts to reach a compromise have been stymied by conflict over how to appoint judges.
For both sides, the judicial issue has become a proxy for more fundamental questions about the nature of Israeli society, the role of religion in public life, and the balance between majority opinion and minority rights.
While even some government supporters say that a solution is possible, failure to resolve the tricky question of how to pick judges could sink the mediation effort that has been primarily overseen by Mr. Herzog.
What to Know About Israel’s Judiciary Overhaul
If the government does enshrine the overhaul in law in the form it has proposed, it could set the stage for a constitutional crisis. If the Supreme Court later rules the legislation is unconstitutional and decides to strike it down, the government could refuse to respect the decision.
Analysts say that might force civil servants, police officers and the military to choose between following the orders of the executive branch of government or the judicial branch.
Currently, judges and lawyers are a majority on the committee that appoints new justices, who are replaced once they turn 70. The government says this dynamic has turned the judiciary into a self-selecting club, and wants to give its own appointees a majority on the committee.
Critics argue that the government’s plan would simply replace one power imbalance with another. But the government and its supporters remain determined to proceed with the change — and that stance blocked efforts to find a middle ground during behind-the-scenes negotiations held in recent weeks by President Herzog, mediators said.
“This is really the reason why the ability to create consensus fell apart,” said Yohanan Plesner, president of the Israel Democracy Institute, a Jerusalem-based research group that was involved in the mediation effort. On judicial appointments, there remains “a cliff, or a chasm, or a major valley” between the two sides, Mr. Plesner said in a press briefing on Thursday.
But on other aspects of the plan, leading right-wingers have signaled readiness to soften, with some even indicating that they are ready to scrap a so-called “override” mechanism that would allow Parliament to overrule decisions made by the Supreme Court.
“With regard to many issues, the gaps could be bridged,” the Kohelet Policy Forum, a Jerusalem-based research group that helped conceptualize and build support for the proposed overhaul, said in a statement earlier this week.
But, the forum added, “The issue of the composition of the committee for the selection of judges remains unsolved.”
Kohelet’s shift in tone followed a similar call for compromise from Miriam Adelson, the publisher of Israel Today, the country’s highest-circulation pro-government newspaper.
“Slow down!” Ms. Adelson wrote in a column for her own newspaper. “It is important to ensure that all sides emerge from this argument with heads held high.”
So far, however, such requests have not been heeded, with figures on both sides reacting ever more emotionally.
A former prime minister, Ehud Olmert, who opposes the judicial overhaul, said in an interview on Thursday that world leaders should boycott the current prime minister, Benjamin Netanyahu. Former soldiers who fought alongside Mr. Netanyahu’s older brother, Yoni, joined an anti-government protest in a car resembling one used during a counterterrorism operation in Uganda in 1976 in which the elder Mr. Netanyahu was killed.
On the other side of the debate, a government minister, Miri Regev, described protesters as “privileged thugs who damage the country’s infrastructure.”
“The president’s outline unfortunately gives power to the privileged who want to keep their power,” Ms. Regev wrote on social media. “We will continue with the reform until the end,” she added. “The power returns to the people.”
Some governing lawmakers, including the justice minister, Yariv Levin, have previously suggested that they hope to enact at least part of their plan by the time Parliament breaks for recess in early April.
Nevertheless, there were signs on Thursday that some coalition lawmakers — and even Mr. Netanyahu himself — hoped to water down some of the proposals.
At a press briefing in Berlin, where Mr. Netanyahu met with Olaf Scholz, the German Chancellor, he appeared to suggest that he would be willing to consider less government control over judicial appointments.
“Today, judges in Israel have a veto over the selection of other judges,” he said. “There needs to be some kind of balance in terms of how judges are selected — and at the same time not allow one side to dominate,” he said, without giving more details.
“You want to maintain a balance, but you can’t let that lead to other imbalances,” he said.
Danny Danon, a lawmaker from Mr. Netanyahu’s party, Likud, said on Thursday that the party was listening to its critics and that a compromise would be found. Earlier in the week, a veteran Likud lawmaker, Yuli Edelstein, missed a preliminary vote in Parliament on part of the proposal, a move interpreted as an expression of discomfort with the program.
A third Likud lawmaker, David Bitan, was more explicit. “What we need to do is soften the reform, and we will do it — we have no choice,” Mr. Bitan told Kan, the national broadcaster. “We need to stop the legislation for a week or two,” he added.
But opponents of the overhaul fear such unilateral gestures will only be cosmetic in nature and will maintain its most problematic aspects.
Isabel Kershner and Myra Noveck contributed reporting.
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