‘Insanity is doing the same thing over and over again and expecting different results,” the oft-quoted truism goes.
Israel’s government is repeating almost exactly what it did in March. As in March, it is pushing forward at top speed with a controversial judicial reform bill; attempting to pass the bill moments before the Knesset heads for recess; disparaging hundreds of thousands of protesters; and witnessing a growing tide of IDF reservists in key positions who are threatening to cease their volunteer service.
The result at the end of March was a series of events that led to Prime Minister Benjamin Netanyahu announcing a legislation freeze and agreeing to hold talks at the President’s Residence.
Defense Minister Yoav Gallant warned against the negative effect of the bill’s passage on national security; Netanyahu announced that he was removing Gallant; mass spontaneous protests broke out; and a strike by Israel’s national unions’ umbrella organization, the Histadrut, including a strike at Ben-Gurion Airport.
Does the government have a basis to believe that the result this time will be different?
Perhaps, for three reasons:
First, the “reasonableness standard” bill is an easier sell than the proposal in March to alter the makeup of the judicial selection committee. “The courts should not have the power to decide what constitutes a decision that is beyond the realm of reasonableness,” sounds like an argument that is easier to live with than “the government should have the power to one-sidedly appoint judges to all of Israel’s courts.”
Second, sometimes doing the same thing over again can indeed yield a different result – because of experience gleaned from the first round. The government this time is putting more effort into condemning the protests and reservist’s actions; it is trying harder to convince the public of the necessity of its proposal; and it is arguing that, contrary to March, this time the talks at the President’s Residence have been tested and failed.
Third, August is around the corner. Unlike in March, if the bill passes this time, it will immediately be followed by a traditionally dreary month, during which what seems like half the country is on vacation. This could dull the backlash to the bill’s passage – and, along with the two-and-a-half month Knesset recess that begins on July 31, ease the shock waves of increased protest.
Despite these three reasons, two factors suggest that the results at the end of July will indeed be exactly the same as in March – and the reasonableness standard bill will falter. First, unlike the judicial selection committee bill in March, the reasonableness standard bill’s effects may be felt immediately, and therefore there is an even greater urgency to block it; second, that the government has openly said that the reasonableness bill is just the first “slice of the salami” – and protesters feel that they cannot afford to let even one slice of it pass.
The mass protests across the country during the past two weeks, and especially at Ben-Gurion Airport, have made it clear that from the protester’s perspective, the reasonableness standard bill is just as damaging as the judicial selection committee bill.
Reservists have indicated the same. A number of groups of reservists have already announced that they will cease volunteering if the reasonableness bill passes. Pilots are acting with more caution than in March. This week, hundreds of reserve pilots gathered to hear lectures about the legislation’s effect, in order to make better-informed decisions. The Israel Air Force is also making more of an effort not to project panic, and to address reservist’s concerns behind closed doors.
Growing number of reservists threatening to quit
Still, every day brings more reports of air force reservists announcing that they will discontinue their service if the bill passes – and, just like in March, damaging the IDF’s capabilities is a line the government cannot afford to cross.
In fact, the reasonableness standard bill’s passage may lead to an even larger fallout than in March, because, unlike the judicial selection committee bill, its effects will be felt immediately.
As Deputy Attorney-General Gil Limon, Finance Ministry Legal Adviser Asi Messing, and a number of other experts explained in the Knesset during the past two weeks, the essence of the reasonableness standard is that it gives the court the power to evaluate whether or not executive officials gave proper weight to their different considerations before making a decision.
For example, according to Israeli law, ministers can act to remove the legal advisers based on “incompatibility.” But what counts as incompatibility? Can a minister remove his ministry’s legal adviser over a simple difference of opinion?
The reasonableness standard is a tool that the court can use to evaluate these sorts of decisions. Incompatibility must be a deep and ongoing personal, or professional, rift between the minister and the legal adviser, which seriously hinders the ministry’s proper functioning.
According to Limon, with the reasonableness standard gone, legal advisers have no way to know whether the next opinion they give “will be their last.” A minister may deem the legal adviser “incompatible” over the slightest difference and have him or her removed – and the court will not be able to evaluate the decision.
The same is true regarding the removal of the attorney-general, who functions as the legal adviser to the government as a whole. Messing pointed out that it is also true regarding key positions in the Finance Ministry: without the reasonableness standard, the government can appoint an accountant general or chief economist without sufficient qualifications.
The attorney-general in the government, and legal advisers in specific ministries, are the central gatekeepers in ensuring that the ministers act according to law. Replacing them with allies gives minister’s broader leeway to operate in the gray areas, and sometimes in direct violation of the law. The bill would create “black holes” or “shelters” for ministers to abuse their power, Limon explained.
If passed, the ramifications of the reasonableness bill might be felt immediately, on two fronts:
First, Netanyahu may try to reappoint Shas chairman Arye Deri as health minister and interior minister, after the Supreme Court ruled in January that the initial appointment was “extremely unreasonable.” The court cited Deri’s numerous white-collar convictions, and attempts to receive a lenient plea bargain during his most recent conviction in 2022, by misleading the court into believing that he would leave politics.
The bill could also open the door to dismissals and appointments of political allies in a number of ministries and government bodies, including in Miri Regev’s Transportation Ministry and David Amsalem’s Government Companies Authority.
Second, the government may move to fire Attorney-General Gali Baharav-Miara. The cabinet this week, with Netanyahu in attendance, held a meeting in which a list of ministers falsely accused Baharav-Miara of intentionally siding with the protesters against the judicial reforms, and of selective enforcement in the blocking of main transportation arteries.
The removal of Baharav-Miara has an added benefit for Netanyahu. The attorney-general serves not only as the legal adviser to the cabinet, but also as chief of the state’s prosecution apparatus. She is the ultimate decision-maker with regard to the ongoing corruption trial against Netanyahu. A more friendly attorney-general could eventually find a way to get the prime minister off the hook.
The potential of these moves soon after the reasonableness bill passes is one reason why the protests and reservists’ ultimatums will intensify.
Then, there is the “salami.”
Protesters, reservists, and opposition Knesset members are aware of the open declarations by many ministers that the reasonableness standard is just the first “slice.”
On Thursday, National Security Minister Itamar Ben-Gvir said that during the Knesset’s winter session, parliament should pass a bill to make ministerial legal advisers’ opinions non-binding, as well as pass the bill to alter the makeup of the Judicial Selection Committee. At least a dozen other ministers have said the same.
The coalition proved on Wednesday night that changing the makeup of the Judicial Selection Committee was still on the table. The coalition put forward an amended version of the reasonableness standard bill that would bar the court from applying the standard not just to an active decision, but also to a minister’s decision to refrain from acting on a given issue.
This amendment came as a result of opposition Yair Lapid threatening to appeal to the Supreme Court if Levin did not use his authority to convene the Judicial Selection Committee within the next two weeks. The amended version of the reasonableness bill will block the Supreme Court’s ability to evaluate Levin’s plan to continue to delay the committee’s operation – and thus continue to leave open a future option to amend the committee’s makeup.
In conclusion, the immediate effects of the reasonableness standard bill passing, combined with the government’s stated intention to continue with the judicial reforms during the Knesset’s winter session, are cause enough to believe that the protests will continue to intensify, and more importantly – that the tide of pilots and reservists who will end their service will continue to grow.
Rather than risk a threat to Israel’s national security, and barring a significant softening of the current version of the bill, Netanyahu will likely find an excuse to avoid the bill’s passage at the end of this month, and roll the ball three more months down the road.
Insanity is doing the same thing over and over again and expecting different results. But the government is heading down the exact same road it did in March, with the potential for exactly the same results. And it could very well attempt to do so again when the Knesset’s winter session opens on October 15.