Rabbi Prof. Dov Fischer
Rabbi Prof. Dov FischerCourtesy
Imagine if the government had passed the Judicial Reform package by now.

Oh my, there would have been screaming and anarchy. Biden and Nides would have been livid. Unthinkable levels of protest would have ensued. How unthinkable?

- Maybe Ehud Barak — who has been revealed to be Meretz and not merely Labour, who has been revealed to have offered to give up the Temple Mount, who gave South Lebanon to Hezbollah to have an independent terror polity, whose funding from Jeffrey Epstein is as legion as his flights on Jeffrey Epstein’s plane and Fantasy Island — would have called for mass civil disobedience.

- Maybe protestors would have blocked off the Ayalon Highway.

- Maybe protestors even would have invaded and disrupted Ben Gurion Airport.

- Maybe protestors unbelievably would have launched a nationwide Day of Disruption, backed by the Histadrut leadership and malcontents in “hi-tech.”

Well, no, they would not do that. But let’s just say . . . .

The point is that the originalentire Judicial Reform proposal was and is reasonable, with one caveat that the proposed “Override” provision needs a bit of tweaking. It should have been passed by now. If it had been, there would have been the same exact chaos there is anyway. Israel has only one airport to close down, only one Ayalon Highway, only one Epstein-Barak inciter. The Left would have gone crazy, and the public would have become accustomed to it and started turning on the troublemakers as they have turned on “Black Lives Matter” in America. After the novelty, the mainstream public gets sick of this.

The Judicial Reform would be seen by now as perfectly in order.

The prime minister should be free to pick his attorney-general without Court interference. President Kennedy could name any attorney-general he wanted — and he picked his own brother. Obama rightly expected President George W. Bush’s A-G to submit his resignation, to be replaced with Eric Holder. President Trump rightly expected Obama’s Holder to step down, to be replaced by Jeff Sessions. When Trump became disenchanted with Sessions, he canned him and replaced him with William Barr. In America, the Court has no say. The A-G can be as “unreasonable” as the president wishes. Then the president can fire his attorney-general and pick a new one. Or Congress can impeach him or her. The Court stays out of it.

What keeps the American system “reasonable”? Not the courts but the legislature and the people. Congress can impeach an attorney-general . . . or can impeach the president who picks him or her. And the voters can throw all the bums out. Or vote to keep them around.

With Israeli Judicial Reform and an end to the wishy-washy subjective “reasonableness” standard, Baharav-Miara would have been out the day the new government began. No need for firing. She would have understood her resignation was expected, and either she submits it elegantly, like everyone else in a mature democracy, or they come in with a heavy-duty dustbuster and get her out that way.

On October 20, 1973, President Nixon ordered his attorney-general, Elliot Richardson, to fire special Watergate prosecutor Archibald Cox. Richardson would not do so, so he resigned. He knew the attorney-general serves at the pleasure of the head of government, the president. He does not impose on the president what may or may not be done legally. So Richardson did not turn to the Court. Then Nixon ordered Deputy Attorney-General, William Ruckelhaus, to fire Cox. Instead, Ruckelhaus also resigned — same understanding. So Nixon next ordered his Solicitor General, Robert Bork, to do it. And he did. The next day, the newspapers called it “The Saturday Night Massacre.” It was quite a scandal. Leon Jaworski was named to succeed Cox. A year later, Nixon was out. But the Court had no say in the matter. And justice was served democratically.

It is the same with naming any other kind of cabinet minister. In America, the president names his cabinet. The Court has no say. There is always a cabinet member or two who emerges as incompetent or corrupt. Vice President Aaron Burr killed the guy in the musical. Lincoln’s Secretary of War, Simon Cameron, resigned amid his corruption scandal. William Belknap, President Grant’s Secretary of War, resigned just before being impeached for bribery. Ezra Ayres Hayt, a high-ranking official under Rutherford Hayes, was forced to resign for corruption. Albert Fall, Pres. Harding’s Secretary of the Interior, took bribes and was convicted and imprisoned.

But the Court did not rule on his suitability for office; rather, the basic system took him down. Harding’s attorney-general, Harry Daugherty, resigned amid scandal. The lists grow longer as we get into the past five presidencies. In all the cases, the Court has no say. Congress shines a spotlight and considers impeachment. Voters weigh in, and the system works as a democracy should, without the interference of unelected judges deciding what they personally feel is “unreasonable.”

If Aryeh Deri ultimately becomes a minister, the Knesset can vote his expulsion. Or the voters can decide in four years that they prefer a government of Gantz, Lapid, Liberman, Sa’ar, Meretz, and Labor that relies on the Muslim Brotherhood for its majority. If that’s what the voters want in four years, so be it. But it is not for the Court to decide whom the prime minister “reasonably” may appoint to his cabinet.

If the government had passed all the Judicial Reform three months ago, people by now would have seen that the sky did not fall and that the whole hubbub was much ado about nothing. All the fears would have been proven unwarranted. The average Israeli today would not know the “reasonable” standard is missing because they never knew it was there. They would not mind that Baharav-Miara is gone. And so it should be with the rest of the Judicial Reform: Kick the lawyers off the judicial selection committee. Lawyers have no business selecting judges. What a “conflict of interest”!

There would be three more years until the next elections, ample time for everyone to grow increasingly accustomed to life free of judicial tyranny, and no one would remember in six months what they even were protesting about. It is as consequential as a hole in a bagel. Planes will fly. Highways will clear. The IDF will be ready. And there always is another Hamas War or Jenin to crush. Count on it.

The longer the delay in passing the reforms, the worse the whole thing festers. It becomes pus, then black mold. Fears build on both sides. The Left starts descending into utter madness, with delusions they are transported into a TV show, “The Handmaid’s Tale.” They all start dressing like Little Red Riding Hood and expect they will be forced to bear children to Nazified government ministers. They lose touch with reality. Meanwhile, across the aisle, weak links within Likud begin imagining absurd nightmare scenarios that the whole country will go under.

Nonsense. Once the government finally passes the darned thing, in its entirety, people — other than Meretz agitators and cynical politicians — will see soon enough that all the warnings were ridiculous. There will be a new chief of police who takes charge and starts treating anarchists the way previous governments have treated Haredim and those opposed to abandoning Gush Katif and Gaza to Hamas. The incompetent Tel Aviv police chief, Israel’s Inspector Clouseau, will be replaced by someone who enforces the law — a novel concept. And what does it say about that nincompoop police chief when, upon his termination, thousands of violent lawbreakers stream to the streets demanding his reinstatement?

Finally, when this chapter ends, it must never be forgotten that it was not Yair Lapid or Avigdor Liberman but Gideon Sa’ar who pushed Baharav-Miara forth. A story is told of a temple’s “High Holiday Chazan Committee.” Each week they sat through three auditions, and this was the final meeting. A candidate started singing for the committee. It was the most awful version of “Kol Nidre.” A committee member “snapped,” stood up, pulled out and cocked a handgun. The candidate with the terrible voice turned white and begged: “Please don’t shoot me.” The livid committee member responded: “I’m not going to hurt you. It’s not your fault you can’t sing. I’m gonna shoot the moron who invited you.”

I wish Sa’ar long life. But we must never forget it was he — and only he — who made Baharav-Miara attorney-general. One day, Bibi will retire. On that day, Sa’ar will try returning to Likud with Elkin and all his sycophants. Never forget that Sa’ar is not a Likud conservative. Likudniks went through this with Ariel Sharon, Tzipi Livni, Ehud Olmert, and others. Likud must never again take in such sheep in wolves’ clothing.

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