The Need for Judicial Reform Isn’t Going Away

Many thanks to Neil Rogachevsky and Netta Barak-Corren for their thoughtful responses to my essay. Barak-Corren addressed the issue of judicial reform more directly, but let me begin with a brief comment on Rogachevsky’s response, which was devoted to a different problem with Israel’s system of government—the fact that small parties have excessive power. Many Israelis agree, myself included, and various attempts have been made to solve the problem. But that’s easier said than done.

In 1992, for instance, the Knesset instituted direct elections for the premiership in hopes of giving the prime minister more power over small coalition partners. But once voters could support their prime ministerial candidate without voting for his party, the big parties shrunk, enhancing small parties’ power. In 2014, the Knesset raised the electoral threshold in hopes of forcing out the smallest parties and making resultant coalitions more manageable. Instead, faced with the risk of not crossing the threshold, smaller parties united with even smaller and more radical groups to avoid wasting votes, and the radicals then vetoed compromises that the mainstream factions probably would have accepted, making coalitions even more unmanageable. So even though the problem of small parties having disproportionate power is widely acknowledged, it still awaits a feasible solution.

Now, back to judicial reform. Contrary to what Barak-Corren seems to think, she and I actually start from an identical premise—that you can’t turn back the clock. But from that premise we reach very different conclusions. She believes there is no way to restore the more restrained and responsible political culture of earlier decades, so the Supreme Court must remain a powerful counterweight; consequently, she argues, judicial appointments must remain beyond the politicians’ control. I believe there is no way to restore the more restrained and responsible judicial culture of earlier decades; consequently, I consider more ideological diversity among the justices essential, and that requires political control of judicial appointments.