Judging a Court By Its System – Interview with MK Simcha Rothman
By Sara Lehmann
The ascent of MK Simcha Rothman, who was appointed chairman of the Knesset’s powerful Constitution, Law and Justice Committee, may prove to be the biggest nightmare for Israel’s current Supreme Court and its progressive supporters. Rothman has become the poster boy for judicial reform in Israel and has been a leading voice in the fight against judicial activism.
A principal member of the Knesset for the Religious Zionist Party, which saw huge gains in the recent election, Rothman is hoping that newfound success at the polls will deliver much-needed reform. This reform, supported by all religious parties in Israel, centers on legislation in the form of an override clause, which would enable the Knesset to “override” Supreme Court reversals of laws it enacts, thereby halting overreach by the court.
An activist turned lawyer turned politician, Rothman is the founder and legal adviser of the nonprofit, nonpolitical organization Meshilut, The Movement for Governability and Democracy, which works to strengthen the rule of Israel’s elected officials by restoring the proper balance between Israel’s legal and executive government branches. He is also the author of The Ruling Party of Bagatz: How Israel Became a Legalocracy.
Rothman, who is married with five children, studied in Yeshivat Kerem B’Yavneh and served as a chaplain in the Combat Engineering Corps of the IDF. He earned his L.L.M. in Public Law in the joint program between Northwestern University and Tel Aviv University. While in Israel on a recent visit, I sat down with this judicial warrior in his Knesset office to discuss his efforts for judicial reform and other challenges facing the State of Israel.
The Religious Zionist Party was extremely successful in this past election. Do you attribute this success to votes for security or also to ideology?
I think it’s security and Jewish identity — it’s all combined. Of course, that includes judicial reform, which has caused a huge buzz. If you had asked me whether I would believe that two weeks before the election a whole week would be dedicated just to judicial reform, I would have said no. But it created a lot of attention, media, and public discourse.
I think it’s ripe. I personally worked on this particular issue for many years. The public needs to understand the problem and that takes time. The justice system needs to overstep its boundaries one time, a second time, and a third time, until the public sees and understands the problem. It became a huge issue. Even the chareidi parties are now talking about wanting reform. It was never a hot-button topic for as wide an audience as it is now.
The things I wrote about and the issues I pushed for before joining politics have now become the mainstream agenda of the right wing. It’s actually not only the right wing, because many people in the opposition had signed on to such legislation. We will call on them now to see if they are for the change they had advocated for or they are about party politics, because reforming the justice system has become a right-wing agenda. However, it wasn’t and it shouldn’t be right-wing. It should be for anyone who cares about democracy.
Sadly, some people say that they don’t care what the justice system does as long as it helps to get rid of Netanyahu or the chareidim or anyone they don’t like. Look what Yair Lapid wrote about gender separation. For decades, Israeli law speaks about how separation of men and women among chareidim is needed for them to enjoy public services. Such things as bathrooms, swimming pools, gyms. It’s legal and has been the law for ages. But over time, the court and the attorney general created a crazy situation where a religious woman who wants to sing in front of women because of her religious views cannot do so for fear of getting a fine. It’s a problem for Motti Steinmetz, the famous chareidi singer, to have separation between men and women in a chareidi crowd. It’s a problem now at a simchas beis hasho’eivah. It’s crazy.
When did the court and attorney general get involved in this issue?
In the recent decade. The law specifically says it’s fine, but some crazy progressives in the attorney general’s office decided that they want to educate the religious about how it’s not good to have separation of men and women. They force their views on the public without any legal standing, and now the public is pushing back. So, Yair Lapid says we will be like Iran. No, Iran is where views are forced on the people. According to the progressives, we are Iran. But we want freedom. We are really the liberals, and they are the dictators.
All this was created by the justice system. It’s sad that we need to legislate when the law is very clear. But we have been forced to legislate to include in the coalition agreement that religious people can live their lives without interference from the government. In the U.S. it’s the first amendment.
You mentioned your many years of involvement in this issue. Can you describe how you became involved and what efforts were made in pursuing judicial reform?
I am in this business now for at least two decades, going back to the judicial coup led by Aharon Barak, who was the face, the creator, and the engineer of the activist judge. And I fought against it. I was quite young when there was a big demonstration against the Supreme Court in 1999. They called it Hafganat Ha’milyon. Many people were on the streets, most of them chareidim. But there were some kippot serugot in the crowd and I was one of them.
When I went to law school, I learned more and became more involved. A year or two after I started my own law firm, I opened Meshilut — The Movement for Governability and Democracy, together with my friend Yehudah Armani. We advocated for change through researching, publishing, giving interviews and helping Knesset members write legislation. When I joined the Knesset, it naturally became the main issue for me to deal with.
Can you give an overview of Israel’s justice system and how it differs from the American justice system?
To begin with, Israel does not have a constitution. We follow the British system, which is the parliamentary system. The U.K. also doesn’t have a written constitution. That means the government has the final word. In the U.K. you don’t have judicial overview of legislation. The court can point out problems, and the parliament can make changes or not. But when the parliament legislates, that’s it.
For Americans, it might be hard to understand, because they are used to a constitution. If a law is unconstitutional the court will do something about it. But in America, when the court exaggerates its power, you hear talk about packing the court. The court cannot really hold against the majority for a long time. In U.S. history, when the court did so, as in the Dred Scott case, it created a Civil War. Also, in the New Deal rulings, when the court ruled excessively against politicians, there was talk of packing the court and the court changed its mind willingly.
In what way does the Israeli judicial system navigate through its own set of checks and balances?
From the founding of the State of Israel until the 1990s, it was very clear that the court could not cancel Knesset laws, full stop. Believe it or not, Israel was a democracy with human rights even then! Israel even had a female Prime Minister when women did not have the right to vote in some Western countries. It’s not that we had a crazy parliamentarian system with a dark and evil majority that wanted to take away rights from everyone. This was never the case in Israel, contrary to how some might want to portray it. For many years it worked. That’s why Israel had a mechanism of appointing judges in a way that nobody really cared about, because the court didn’t push policy and only focused on applying the law. But the way we appoint judges is undemocratic.
Can you describe the process of appointing judges in Israel and how the practice of self-appointed judges allows them to become activists?
We have a committee of nine members in the judicial selection committee. I am currently a member. Two of them are Knesset members (usually one from the coalition and one from the opposition), two ministers, three Supreme Court sitting justices (the chief justice among them), and two members of the bar. Out of the nine, the two ministers and one Knesset member in actuality represent the majority of the public in Israel. In essence, the majority is a minority. Even if all the elected officials — the two Knesset members and two ministers — object to a judicial appointment, they are overruled by the five who are unelected officials from the bar and from the court.
To make things even worse, to appoint a Supreme Court Justice, you need to have seven out of nine, meaning the sitting justices in the Supreme Court have veto over who will join their forces. Essentially, we have a self-appointing court who, in the ’90s, usurped power to cancel Knesset laws. And it’s almost impossible to change the court. That means that when the right is in power, the most they can hope for is to appoint someone moderately right-wing who will be acceptable to the court, but when the left is in power, they can appoint whomever they want because the court will not object. We appoint our moderates and they appoint their extremists. This creates a biased court that does not represent the public in Israel, its interests or its values. That’s why we have such a big clash.
Can you give an example of how this process negatively impacts everyday Israeli life?
Take the immigration policy. It was enacted by 80 Knesset members and was canceled by the court. The Knesset enacted laws concerning illegal infiltrators four times, and the court canceled them all. The Knesset enacted a law three times to solve the issue of the chareidi draft law, and the court canceled them all. Even the law that was passed by Yair Lapid on this issue was not good enough for the court.
No matter what your position is, you cannot reach political understandings and agreements on very problematic issues. It’s an open wound in Israeli public debate. And you cannot do anything about it because any Knesset decision can get canceled by the court. This creates instability politically. The last three years can very easily be blamed on the court, like the fact that we went to early elections because we couldn’t reach an agreement about a new draft law. And we only needed a new draft law because the court canceled all the previous ones. This is not acceptable in a democratic country.
You stated that one of the first pieces of legislation you want to pass is the override clause, giving the Knesset the ability to override the court when it strikes down laws. But if the Knesset passes such legislation, what’s to prevent the court from striking that legislation down?
The court does not have the ability to strike it down as a basic law. The court might do it without the ability. Then we have a problem. But who gives the court the power to cancel basic laws?
What’s the difference between a basic law and regular laws? Does the court have the ability to strike down both?
You hit the nail right on the head. For many years, the court claimed the power to cancel laws was given to it by the Knesset, which enacted the Basic Law of Human Dignity and Liberty. A basic law is superior to regular law, and the court claims that they are canceling regular laws because they contradict the basic law.
Is the basic law a substitute for a constitution?
That’s what the court claims. I don’t accept this view but I’m willing to play along for a basic law of the override clause.
What recourse would you have if the court cancels the basic law of the override clause?
We can ignore them the same way they ignore us. That’s a war. That’s a civil war.
Does it come down to who has the power to enforce the rule?
That’s true. But again, what would happen in the U.S. if you would pass an amendment to the Constitution fair and square and the court says it is disregarding it? What basis does the court have to ignore the Constitution? In Israel, the court claims for many years that the basic law substitutes for the constitution and cancels regular Knesset laws because of the basic law. If then the basic law changes to disallow that, what claim would the court have to oppose it?
You were appointed chairman of the Knesset’s Constitution, Law and Justice Committee, a spot to be vacated by Gilad Kariv, president and CEO of the Israel Movement for Reform and Progressive Judaism. Was there damage done to religious issues under his tenure?
I don’t think the problems of what happened with Israel in the past year and a half was the making of just Gilad Kariv. What was more problematic was what was done in the Ministry of Health by Nitsan Horowitz, with the chametz in the hospitals, and with Matan Kahane in the Misrad Hadatot (Religious Services Ministry). The problem was the whole coalition. The identity of the Jewish state was at stake.
That’s how we began our conversation. The Jewish public in Israel voted for Israel to keep the Jewish attributes of the country. I think that the last coalition fought against that with all its power. The Jewish public of Israel would be considered very conservative if they would be in the U.S. I think the majority of the voters for Yesh Atid voted out of hatred for Netanyahu or fear of the right, but the way they live their lives is very conservative. They believe in security, family and Jewish identity. Sadly, they are hijacked by fear mongering, mostly by the progressive left media.
Despite receiving this right-wing mantle, Netanyahu seems to be bowing somewhat to pressure from the Biden administration on the subject of appointments. How do you explain this?
I think it’s politicking. The U.S.-Israel ties are extremely important to everyone. Israel needs both Republican and Democrat support, and I do not write off bipartisan support. Our connections are strong, but it’s not acceptable to have interference in Israeli democratic elections and choices. It’s not legitimate to interfere in who will be appointed minister. This belongs to the Israeli public. We’re allies, but allies don’t interfere in each other’s parliamentarian and electoral systems. I would think that anyone would be offended if we tried to tell Biden who to appoint to which position. I do believe this interference is wrong. And I think the pressure even made it more problematic to give up on positions in the negotiations between us and the Likud.
You don’t want to be seen as giving in?
I don’t think it’s in the interest of the State of Israel to be seen as giving in because of this pressure.
Can you comment on the FBI interference with the investigation of the death of the Al Jazeera journalist?
I think the coalition and the opposition will be united on this issue. Some people in the current coalition already spoke very loudly. I think it’s a big mistake by the FBI and the administration to push forward on this. Personally, I think it’s a failure of Israel’s Foreign Ministry and Lapid’s and Bennett’s behavior in the past year and a half in the way they dealt with the Americans on this issue, on the maritime border deal, and on all the issues. We definitely need a new government, a new approach to American pressure. Israel has to stand strong for its interests.
You spoke of interference, but is there anything that Diaspora Jews can do regarding judicial reform or other issues in Israel?
I think it’s important for them to be educated. But I don’t look at Diaspora Jews’ involvement in Israel as interference. It’s not like the U.S. government or any other government. For Jews, this is their country. We are hoping for many Jews to make aliyah as soon as possible and we want to them to be more involved. Of course, they don’t have the final word in Israel; that is for the voters.
But it also works the other way around. Sadly, the Orthodox and chareidi communities in the U.S. interfere less in the State of Israel than some of the Reform Jews and the federations that they control. When the Reform Jews come, I listen to them. I personally see them as mistaken, but I think they should also feel that Israel is their homeland.
Even though many of them are not halachically Jewish?
I am talking of the Jews. But they don’t see any problem with influencing politics in Israel. They make their voices loud and clear. And the Orthodox take a step back. The chances that an Orthodox family from Boro Park or Lakewood, and definitely from the more Modern Orthodox communities, will make aliyah are much higher than the Reform. And the Orthodox have family and children in Israel. They have skin in the game. Yet, sadly, they sit back.
If we talk about reforming the Law of Return to make sure it will serve its purpose to bring Jews to Israel, some Reform Jews will very loudly object. This concerns a lot of people from former Soviet Union countries, of which 70% are non-Jews, not even self-declared Jews. But we don’t hear the Orthodox Jews in the U.S. speak about or support this effort. It’s saving Israel for them.
With the rise of antisemitism in America, perhaps this will become more relevant?
Yes, there’s an investment that needs to be made by the Orthodox American Jews. I want the Orthodox to be involved. I’m not on a fundraising mission. But the amount of money needed to have influence in Israel is very minimal. A small investment in organizations can make policy changes. I don’t want them to interfere. I want their voices to be heard. They have families here. They can be involved in policy and they are not.
I’m not trying to promote certain organizations, but the same way the New Israel Fund works in Israel, there is no reason that Lakewood or Boro Park or Flatbush or the Five Towns shouldn’t have a new New Israel fund. We need to have stronger ties and more involvement.
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