MK Simcha Rothman speaks out on the High Court torpedoing judicial reform during wartime

Photo: Flash90

Last Monday, as Israel was fighting an existential war in Gaza, its High Court handed down a deeply controversial decision that threatened to re-open the same splits that had driven Israeli society in the lead-up to the war. The government’s law limiting the Court’s “reasonableness” standard, its flagship judicial reform legislation passed back in July 2023, was struck down by the High Court on the first day of 2024, in a narrow eight-to-seven decision.

To get his views on the ruling, Mishpacha interviewed MK Simcha Rothman, chair of the Knesset Constitution, Law, and Justice Committee and a leading proponent of the government’s judicial reform strategy, led by Justice Minister Yariv Levin.

No sooner had our interview with Rothman concluded than the Court struck again, ruling (again by a razor-thin margin) against implementation of the so-called “recusal law,” passed by the government with the theoretical intent of preventing Attorney General Gali Baharav-Miara from declaring Prime Minister Binyamin Netanyahu unfit to serve due to his ongoing legal situation.

If American readers sense a parallel with the legal battles raging against former president (and current candidate) Donald Trump, they’re not really wrong. In Israel, as in America, the right more than ever perceives the justice system as having taken political sides.

The fact that the vote split so sharply along ideological lines, with conservative justices opining that the Court lacks the prerogative to disqualify a basic law, and liberal justices arguing that it can, didn’t do much for the Israeli public’s already flagging trust in the High Court, to put it mildly.

But unlike the United States, the Israeli High Court’s ruling, coming in the midst of war, brought to the surface everything that wartime Israel has tried to sweep under the rug. The battle over the judicial reform, which almost seemed to belong to a different timeline, was suddenly dragged back into Israel’s turbulent public square.

In this context, we sat down with Simcha Rothman, one of the masterminds of the judicial reform, for a conversation about accountability.

In wartime, with the political echelon imploring the High Court not to issue a ruling that would divide the nation, we’re met with the “judicial revolution” of 2024, with the High Court striking down a basic law for the first time. Our question to you, as one of the two leading proponents of the reform and chairman of the Constitution Committee, is: Where did the right-wing camp go wrong? You can talk about a rigged system all you want, but at the end of the day you failed. The judicial reform is a dead letter as of this week.

“Thinking back, it was clear to everyone that a comprehensive reform of the judicial system was necessary, and I think that in this respect, nothing has changed. It’s just not the right time for it, and that to me is the essential point.

“I don’t think a single person was persuaded or won over by the High Court’s ruling. But more importantly, it’s a ruling that should never have come out during wartime, and it’s a pity that it did. After October 7, elected officials understood that this was not the time to address divisive issues. Unfortunately, the court didn’t rise to the occasion, and in my eyes, it’s simply detached from reality.

“I don’t think I’m alone in my opinion, because I get this response from a great many people in the coalition, the opposition, and the public. It seems detached to me to fight over this as I make my way to a shivah, or as I legislate on how to incarcerate and sentence Nukhba terrorists. Okay, so we’ll have one more issue waiting for us after the war.”

Maybe retiring High Court president Esther Hayut was the one who showed leadership, in her own way. She understands that she’s at war, and so she took advantage of the political echelon’s shaken credibility post–October 7 to assert herself and show who’s in charge in this country. And that she certainly managed to do.

“And I say, just the opposite. The High Court didn’t show leadership, but chose to engage in petty politics that contributes nothing to the war effort, something we in the political level have been trying to avoid.”

Hayut will reply: This is not politics but the workings of a healthy judicial system.

“It’s 100 percent political. Of course it’s political, it’s a struggle for power and control. If you’re fighting for power and control in wartime, then in my eyes, that’s unfortunate, ridiculous, inappropriate, and irrelevant, and that’s why I refuse to participate in this game. If you want to play this game, play it with yourself.”

One of the most cutting criticisms of right-wing governments over the years has been their lack of a backbone. As a general statement, the High Court has been the biggest obstacle to right-wing governments implementing their agenda, in part because it’s willing to go further. The High Court understands that to remain in power, you sometimes have to make uncomfortable decisions. That’s why it issued its ruling now, of all times. Is it possible that you’ve fallen victim to the same naivete as previous right-wing governments?

“I suggest that anyone who sees things that way should look at where the State of Israel was two decades ago and where it is today. And I’m not talking about the Gaza campaign, which was forced on us. I’m talking about the outlook and worldview of the Israeli right, which sounded the alarm about the disengagement from Gaza and northern Samaria as a mistake that would explode in our faces — and at least with regard to northern Samaria, the situation was rectified by this government.

“It takes time, but let’s look at the settlement in Judea and Samaria, the public’s growing attachment to Jewish tradition and roots. I think that even in wartime, there’s reason to be optimistic. Look at the soldiers and how rooted in faith they are, and you’ll see that this trend is going in a positive direction.”

But when you’re in a battle for the character of the state, you can never sit back passively. As you sit and do nothing, the other side continues raining blows, even in wartime.

“I say, first of all, that the eternal people are not afraid of a long road, and when it comes to this, you really have to take a broader view and look at the changes this country has undergone in the past twenty years. But even in taking a broader view, you still have to focus on what’s most important at the moment. Right now, we’re focused on winning the war. As far as I’m concerned, anything unrelated to that is out of place right now. It’s not that you’re wrong, it’s not that this is unimportant, and it’s not that we’re renouncing our ideology and the need to reform the justice system and other systems. But now is a time of war, and we don’t concern ourselves with anything else.”

You mentioned the growing religiosity of the Jewish public in Israel, but looking at opinion polls, the right-wing bloc’s prospects aren’t very rosy. Can you promise the public that the right-wing bloc can emerge from this war intact and hold power for the next three years?

“One thing I won’t address during wartime is polls, especially election polls. Look, I think that the Israeli public’s perception of how to fight Hamas is much more realistic and accurate than it was before the war, so ultimately the question the public will have to ask itself now and down the road is who will better promote its worldview and values. That’s how democracy works. And you hear the change in tone even on the part of people who once described themselves as left and now describe themselves as right and center.

“That’s why I say ultimately, reality is very hard to beat, and the reality is that we are in a war for our lives here in Eretz Yisrael. The public understands this, the elected officials understand it too. Unfortunately, not all actors have risen to the occasion, but we’ll deal with that too when the time comes.”

Let’s talk about the war itself. We know that there’s a very delicate balancing act between our war aims and what the world wants, especially our great friend the United States. Do you feel that the war is headed in the right trajectory or that the international community has thrown a wrench in the works?

“First of all, I can tell you that we do have some reservations. I can mention many examples where the line we led was adopted, such as the issue of allowing in Palestinian workers. But there were times when our views were rejected — for example, on the issue of letting in fuel. That’s how a democratic government works. I can’t tell you I’m happy that fuel is entering the Gaza Strip. I oppose it, and I’m not the only one. This was opposed in the security cabinet by our party leader, Bezalel Smotrich. In other words, not everything is going exactly the way I or my party, my constituency, or the majority of right-wing voters would like.

“However, I can tell you one thing that’s extremely important. The entire government, without exception, share the same line — the line of ‘Erdof oyevai v’asigeim, v’lo ashuv ad kalotam [I will pursue my enemies and overtake them, and I will not turn back until they are annihilated' Tehillim 18:38], the line of not stopping until Hamas is destroyed and the Gaza Strip is demilitarized.

“So yes, we’re holding to the correct line and saying the right things, and things are happening on the ground that are unprecedented. We need to ensure there’s no wobbling, we need to ensure there’s no surrender to pressure, we need to ensure the government continues pursuing this line. And that’s what we’re in the coalition for, to have an impact on this and on many other issues and give the government the support to do what needs to be done.”

Let’s end with a legal question, in your capacity as a jurist and as chairman of the Constitution, Law, and Justice Committee. Yesterday, we saw the lawsuit filed by South Africa at the International Court of Justice in the Hague against the State of Israel. Shorter than the 700-plus pages of the High Court ruling, but still 84 pages of libels against the State of Israel. And for the first time since the Goldstone Report, Israel announced that it would change course and respond to the lawsuit. Do you support the move, as chairman of the Constitution Committee?

“To me, the whole issue of the International Court of Justice is somewhat indicative of the irrelevance of much of the discourse of the past year. After all, they kept explaining to us that the judicial system was our bulwark. Even after yesterday’s ruling, you had people saying, ‘Now our soldiers are protected because the High Court of Justice struck down a Basic Law.’ Look, this has no basis. International law isn’t impressed by outgoing High Court president Esther Hayut, nor by her replacement Justice Fogelman, nor by the Attorney General and, believe it or not, not even by the Military Advocate General.

“International law is ultimately about politics. When the IDF acted in the most moral, humanitarian way possible, we had the Goldstone Report and other proceedings against us. So we have to decide whether we approach this as a legal matter or a political matter. If we treat this as a political matter, there’s something to be done. If we treat it as a legal matter, the game there is pretty rigged. Of course, we can make our case, but it won’t address the issue.

“The heart of the issue is politics, because from a legal point of view, it’s clear that the State of Israel fully complies with international law, over and above. But they don’t care. And we need to get rid of the strange delusion that they do care, and focus on the essential point. And that’s the whole story. We need to factor out everyone trying to get in our way, and focus solely on achieving the goals of the war with unity in the ranks.”

(Originally featured in Mishpacha, Issue 994)