Wednesday, Feb 21, 2024

“The Judges Want to Rule the Country”

 

Simcha Rothman is the chairman of the Constitution Committee and Yariv Levin’s partner in advancing the judicial reform. In a conversation with Yated Neeman, he explains the outrageous nature of Israel’s current system and the pressing need for the overhaul, answering all our questions at one of the most decisive junctures in the struggle to reform Israel’s judicial system.

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MK Simcha Rothman, the chairman of the Knesset Constitution Committee, is the unquestioned hero of the winter session of the 25th Knesset, which is due to conclude very soon. The Knesset will soon be disbanding for its Pesach recess, relatively late in the season. In a typical year, the Knesset begins its recess no later than Purim. This time, due to the late start of the winter session, it was decided to extend the legislative season as long as possible, which also proved to be convenient for the government due to the large number of laws that it intended to pass in the last three weeks of its session. In most years, there is no greater gift to the government than the arrival of a recess, but that was not the case this time. In this situation, it is the opposition that would have been happy to see the Knesset take a break from its work.

Of course, the opposition has been disappointed instead. The government and the coalition have continued their legislative blitz this week, including the passage of bills such as the so-called Deri law and Chometz Law, two measures that are infuriating the opposition. From the chareidi parties’ perspective, though, their anger is unjustified. These two laws serve to underscore the fact that the objective at this time is only to restore the status quo that has been broken and to mend the breaches in the fence—breaches created, of course, by the Supreme Court.

The so-called Deri law, for instance, is the government’s response to a simple imbalance. The right-wing government was elected by the Israeli people, including 400,000 voters who supported the Shas party. All of those voters knew that Aryeh Deri was a candidate for a senior ministerial position, and no one was surprised when Netanyahu gave him two portfolios, appointing him as the interior minister and the health minister. The Knesset then approved all of the government appointments and the entire composition of the cabinet. Yet petitions were filed with the Supreme Court, and the justices ruled that Netanyahu was required to dismiss him—because, in their view, the appointments were “unreasonable.” They also claimed that Deri had deceived the judge who issued the verdict in his trial on alleged tax offenses. Deri insisted that he hadn’t lied to the judge and that he had never promised to resign permanently from political life, but no one paid attention to him, certainly not the judges of the Supreme Court. Deri’s version of events was backed by former Attorney General Avichai Mandelblit, who agreed that he had never been asked to leave the world of politics permanently. As for the reasonability argument, this is what created the entire stir. After all, since when do ten judges, however honored and distinguished they may be, have the right to determine for everyone what is considered reasonable? Two million people clearly felt that it was entirely reasonable for Deri to receive a ministerial post; why should the judges have the right to override that call?

That, in fact, is exactly the issue at hand: Should the State of Israel be ruled by millions of voters or by a small group of judges? Simcha Rothman put it succinctly in his conversation with us when he said, “In a democracy, the decisions are made by the people.” One must wonder what the other side has to say about that….

A Problem Named Simcha Rothman

The opposition in Israel is facing a very difficult problem in its battle against the judicial reform, which it prefers to term “the reform that will destroy justice.” That problem has a name: Simcha Rothman. Whether he is chairing a session of the Knesset Constitution Committee, speaking in the main chamber of the Knesset, addressing a legal panel, or being interviewed in the media, Rothman has consistently hammered away at the left, and they have had no intelligent responses to his arguments. He is eloquent and speaks in measured tones without growing impassioned or temperamental, but above all, he is incredibly professional and highly knowledgeable. Every argument or factual claim raised by his opponents is rebutted with clear, solid facts. And just as Rothman is a problem for the opponents of judicial reform, he is a boon to the proponents of the plan, with Netanyahu ostensibly chief among them.

I say “ostensibly” because it seems that last week, as the protests against the reform intensified, the prime minister began to exhibit signs of hesitation.

Another law that has enraged the left is the Chometz Law. For many years, all the hospitals in Israel, especially those run by the government, have made every effort to bar chometz from their premises on Pesach. There is a very sound basis for this: Just imagine how a religious patient must feel when he sees others eating bread or other chometz in his vicinity during Pesach. To make matters worse, anyone who brings chometz into a hospital might use the hospital’s eating utensils and thus cause them to become unsuitable for Pesach use. For a religious citizen, the thought that chometz might be permitted on the grounds of a hospital on Pesach is a nightmare. For someone who does not observe the laws of Pesach, on the other hand, it is a simple and harmless gesture to submit to the ban on bringing chometz into a hospital for seven days. It therefore makes perfect sense that the needs of religious patients should trump the rights of others to have chometz in their possession on Pesach. However, the court didn’t see it that way. When a petition was filed by the Reform movement and other plaintiffs demanding that hospitals cease banning chometz on Pesach, then-Health Minister Nitzan Horowitz (who has since faded into obscurity along with the rest of the Meretz party) wrote a letter to the hospitals ordering them to comply with the court’s injunction. Amazingly, this letter actually led to the fall of the government; Idit Silman, the first member of the previous coalition to break away, revealed that the furor over chometz on Pesach had prompted her decision to quit the coalition.

The purpose of the current Chometz Law, in any event, is to restore the situation that has always existed by authorizing hospital directors to prohibit visitors and patients to bring chometz onto the grounds of a hospital on Pesach. Again, the law does not actually ban chometz in hospitals; it merely gives the hospital administrators the right to do so.

Thus, the two laws that are due to be discussed this week illustrate the vital importance of the reform that is meant to curb the activism of the Supreme Court. There are other such laws that are due to be discussed in the Knesset next week, including the bill designed to change the process by which judges are appointed. At this point, there is only one man who knows whether the changes will be radical and far-reaching or shallow and conciliatory. That man is Simcha Rothman, who has been spearheading the judicial reform initiative alongside Yariv Levin (who was sidelined this past week while he sat shiva for his father). The other supporters of the reform have left it up to Rothman to determine the parameters of the changes.

A Jew from Eretz Yisroel

This week, in the midst of the frenzy of activity in the Knesset, Simcha Rothman sat for  an interview to Yated Neeman. With all the talk of dialogue or even capitulation in the air at this point, it was somewhat surprising that he agreed to submit to an interview at all, in light of the tenuous nature of the situation. Nevertheless, Rothman had already promised this interview last week, and he is a man of his word.

I understand that you were a student in Chicago. Can you tell us about that?

“I went to school in Chicago ten years ago, and I received a combined degree there.”

If it was only ten years ago, that means that you were already married at the time. What was it like to uproot your entire family from Israel and to move to America?

“It wasn’t all that dramatic a move,” Rothman replied. “We moved there for only a short time, and we weren’t even there for the academic year; there was a condensed semester consisting of a little bit more than a month in the summertime. Spending a month in Chicago isn’t exactly the same thing as moving to America.”

Where did you go to school?

“For yeshiva ketanah, which corresponds to the age of high school in America, I learned in Mekor Chaim. I went on to learn in Kerem B’Yavneh and then in Toras Hachaim.”

Is Toras Hachaim the yeshiva of Rav Tal, who established a community in Yad Binyomin to replace the community that was uprooted in Gush Katif?

“Yes.”

If you were in Kerem B’Yavneh, then I assume that makes you a talmid of Rav Chaim Yaakov Goldwicht, who was known for accepting the authority of the Chazon Ish without question.

“Not exactly,” Rothman admitted. “When I arrived in the yeshiva, it was right after Rav Goldwicht passed away. The yeshiva was already being headed by Rabbi Mordechai Greenberg, who was appointed in 1994 after Rav Goldwicht retired. Incidentally, there are some alumni of the yeshiva who can be described as chareidim, while others would be called ‘mizrochniks.’”

Are your parents Israeli?

“Yes. I am a fifth-generation Israeli on both sides.”

I am remembering now that someone told me that there is a member of the Knesset who wears a kippah serugah and has a brother who is a brilliant maggid shiur in the Wolfson yeshiva. Was he referring to you?

“Yes. My brother teaches in Wolfson’s. As I told you, I come from a very diverse family. We all accept each other. I will say that I think that I have chosen a lifestyle that is more similar to that of my father and my family. My children are being raised in a home that is very similar to the environment of my own upbringing.”

What does your father do for a living?

“He is retired today. He is eighty years old now; may he live until 120. He used to work for the International Bank.”

The Left Would Rather See the State Burn Down

It was time to end the small talk and get down to the topic that has inflamed passions throughout the country. The Likud party met today for a special conference to discuss the possibility of compromise on the judicial reform, especially with regard to its plans to change the composition of the Judicial Selection Committee. It is no secret that the proposed changes in the process of selecting judges have infuriated the left more than anything else. They are able to use the courts to control the State of Israel only because all of the judges belong to the left (and anti-religious) side of the Israeli political map. Several members of the Knesset from the Likud party have declared in recent days that it would be proper to reach some sort of compromise on this subject, which would imply that conservative and right-wing judges will indeed be appointed, albeit on a gradual basis and in tandem with the appointment of judges similar to those who serve on the courts today. And considering that these sentiments are emanating from Likud members such as Yuli Edelstein, it is clear that this makes the situation much more complicated, even if the opposition is unwilling to accept a compromise of any kind. At this point, everyone is watching Simcha Rothman to see what his next move will be.

I have a copy of an e-mail here that was sent to me by Rabbi Pinchos Lipschutz of Yated Neeman. He points out that you didn’t first become aware of this issue only now; you have been speaking about the need for judicial reform for years, and you even wrote a book about it. You didn’t simply wake up one morning and decide to go to war to change the judiciary. Is this an accurate take on the situation?

“Rabbi Lipschutz is absolutely right,” Rothman confirmed. “I began to work on this issue in a serious way ten years ago, when I launched the Movement for Governance and Democracy in 2013.” Until the year 2021, Rothman also served as the organization’s legal advisor.

What do you mean by “governance and democracy”? Do those two ideas automatically go together? There are those who govern in a very undemocratic way, aren’t there?

“The State of Israel needs to be the type of country in which the state rules. You are right that there is a group of people who are preventing the state and the people from ruling this country. That group consists of the judges, who want to take the reins of this country without being elected. They feel that they have the right to rule the country without being voted into power.”

Isn’t that true of most judges throughout the world?

“Not at all. In most countries, the judges are chosen by elected officials or directly by the people. There is almost no other court system in the world that is self-appointed, in which the judges have the power to veto judicial appointments. This situation is unprecedented.”

Just to play devil’s advocate for a moment, isn’t it better this way? How can the people have the ability to gauge a judge’s qualifications?

“The people are certainly capable of that. In any democracy, it is a basic presumption that the people know how to vote for what is in their best interests. The people can choose the members of the Knesset and the prime minister—or, in the case of America, the president—and they also control the selection of officials such as the chief of staff of the army, who is appointed by the defense minister elected by the people, and the director-general of the Health Ministry, who is appointed by the health minister, who is in turn elected by the people. In short, the people are capable of making these choices. That is the essential philosophy of democracy. If anyone thinks that there can be a group of ruling figures who should be able to appoint themselves without answering to the people, that is an interesting point of view but it has nothing to do with democracy. That is why this system does not exist anywhere else in the world.”

For argument’s sake, let me present an opposing view to hear your take on it. It might be argued that the people can’t really be trusted to make the correct decision as to who is worthy of serving as the prime minister, the chief of staff, or any of the other positions you mentioned. Nevertheless, we give every citizen the ability to vote since we know that, after all is said and done, we will always have the Supreme Court to protect us from mistakes. What would you say to that?

It seemed to me that it was only Rothman’s courteous nature that prevented him from erupting into laughter upon hearing that theory. “Why do you think the judges have the knowledge to determine who would make the best prime minister?” he asked. “How can they possibly know when the prime minister is right or wrong? Did someone teach them in law school how to select the best prime minister? What makes them more qualified than anyone else to make that call?”

You are definitely skilled at the art of debate. When you speak, the other side has no answers.

“That isn’t because of my debating skills. The reason they have no answers is that there is really nothing for them to say in defense of this perspective that has seeped into Israeli discourse, largely due to former Chief Justice Aharon Barak, who insisted that the people do not have the right to make decisions and that a self-appointed cadre of judges are entitled to make all the decisions for them. The judges are a group who have infiltrated all the focal points of power, and they are not willing to accept that the people have made different choices. It is a terrible phenomenon; they really should accept the decisions of democracy. It should be intolerable for anyone to say, ‘If I am not in power, then let the country burn!’”

There Will Be No Civil War

I felt compelled to ask Rothman outright whether the initiative that he has been leading has failed, and whether we should expect a compromise to be reached and judicial appointments to continue to be handed out to liberal judges. Will this rare window of opportunity be allowed to pass?

It seems to me that this conflict didn’t begin suddenly.

“No, it wasn’t sudden at all,” Rothman confirmed. “As we discussed, I have been working on this issue for ten years. Yariv Levin has also been speaking about judicial reform ever since he was first elected to the Knesset.  He is also promoting the override clause, which will allow the Knesset to pass laws stating explicitly that they are immune to judicial review. Did you know that coalition agreements as long ago as 2015 contained stipulations about the passage of an override clause that will prevent the court from striking down laws passed by 61 members of the Knesset? It has simply become more pressing at this time.”

Why is that?

“Because of the political turmoil. Are you aware that the repeated rounds of elections were forced on us by the Supreme Court?”

How so?

“When the Supreme Court overturned the draft law, it essentially forced us to go to elections. And that turned into five election cycles rather than one. This made the judicial reform fairly urgent. We couldn’t wait any longer when the Supreme Court was running the country.”

I thought changing the selection committee would not have altered the fact that the judges are running this state.

“If the judges make all the political decisions, then there is no justification for drawing all of them from a specific side of the political map.”

Doesn’t that mean that you should be deciding between two strategies: Either for the judges to stop ruling the country or for them to continue being in charge of the country, albeit with the inclusion of right-wing justices?

“Even in countries where the courts do not interfere with legislation, judges should still be appointed by the public, because that is the nature of democracy. Every branch of the government that makes decisions for the people must derive its power from the people. The Torah requires dayanim to receive semicha that can be traced back to Moshe Rabbeinu, but in the secular world, there is no authority that comes from anywhere other than the people. That is how things work even in countries in which the courts do not have the power to weigh in on legislation, and it should certainly be true in a country where the court is involved in politics as well. That is why I want the judges to be appointed in a democratic way, as it is done in all the other countries of the world. That is the democratic thing. I also want the judges to refrain from interfering as much as they do. You have asked a good question, and you are only reinforcing the concept that we have a twofold problem: the judges interfere too much, and they are all drawn from the left. We must rectify both of those flaws in the system.”

Do you believe that you will succeed in fixing these problems?

“I certainly hope so.”

There are rumors that you are going to reach a compromise on this subject.

“People are using the term ‘compromise’ even though it isn’t entirely accurate. We are emending the bills that are being brought to the Knesset, just as every piece of legislation is revised in order to address various problems or concerns.”

Our American readers have heard that you are actually giving in on certain issues. Is that not true?

“There are a thousand different ways to describe it, but in the final analysis, we are standing firm regarding the basic principles that we have set out to establish. The judges must not have a veto in the Judicial Selection Committee, and the coalition must have a majority on the committee. Aside from those basic provisions, we are addressing the concerns of coalition members and experts who fear that we are trying to take over the court system.”

You don’t believe that there is going to be a civil war over this issue?

“I don’t think so. The Israeli people will ultimately understand that there is no need to go to war over this issue, certainly not when we are moving forward in an organized and moderate way. The people of Israel understand that national unity is more important than the desire of those in the opposition to create bedlam.”

During your relatively brief time as a member of the Knesset, you have probably learned that there is a good deal of hypocrisy in politics.

“I have learned that some politicians are hypocrites, but many of them are good people, even if they sometimes make mistakes or act with problematic motivations.”

 

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