The judicial reform that began in January 2023 and was derailed when Hamas terrorists blew up the border fence with Gaza on October 7 was not entirely wrong. In fact, much of it was right.
Reforming how Supreme Court justices are selected – currently, a process lacking transparency where judges largely choose themselves – or how the court can strike down Knesset legislation without providing an override mechanism are legitimate concerns. These are serious structural issues that deserve attention.
The problem back then was not the content of the reform but how it was managed. Justice Minister Yariv Levin, who has largely disappeared since October 7, refused to slow down or seek compromise. There were genuine public concerns, yet Levin and the rest of the government ignored them. They wanted the reform and were prepared to force it, regardless of the cost – the weakening of Israel, for which we are still paying the price today.
Two recent legal decisions highlight the deep and systemic challenges Israel faces. Whether we like their implications or not, we cannot ignore what they reflect about the current state of governance.
The first was a ruling by Supreme Court Chief Justice Isaac Amit a couple of weeks ago, requiring the government to adopt a new process for appointing the civil service commissioner. The commissioner is the official responsible for overseeing Israel’s civil service and sets the standards to ensure that capable people are placed in critical government roles.
Historically, governments have appointed a new commissioner without a public tender. Amit himself had previously authored a ruling upholding that practice. Now, however, he has reversed course, arguing that the government’s recent conduct has violated accepted norms and that new limits need to be imposed on it.
This about-face is troubling. Not only is Amit assuming authority that exceeds his mandate, but he is also contradicting his own past ruling. In addition, the decision was not unanimous. Deputy Chief Justice Noam Sohlberg issued a strong dissent, leaving serious doubt over the decision and whether it really was about enforcing good governance or something else.
THIS WAS bad enough, but then came the second decision, this time from Attorney-General Gali Baharav-Miara, who on Monday night ruled that Prime Minister Benjamin Netanyahu has a conflict of interest in appointing a new head of the Shin Bet (Israel Security Agency). She declared his nomination of Maj.-Gen. David Zini “invalid and unlawful.”
Baharav-Miara’s decision stems from two ongoing investigations involving Netanyahu’s close advisers – one into alleged payments from Qatar (“Qatargate”) and the other into leaked intelligence documents – which are both being investigated by the Shin Bet. The attorney-general’s position is that after Netanyahu acted inappropriately by dismissing outgoing Shin Bet chief Ronen Bar, he cannot now appoint Bar’s successor.
And while there are reasonable questions to ask about the manner in which Bar was fired and Zini was appointed, have we forgotten how democracy works?
Bar is a civil servant. He is appointed – and can be dismissed – by the government. His main responsibility was to keep the country safe, a task in which he failed catastrophically ahead of October 7. Like the IDF chief of staff and the former head of Military Intelligence, he should have resigned long ago.
'If Bar should resign, so should Netanyahu'
The frequent claim, “If Bar should resign, so should Netanyahu,” misses the mark. Yes, Netanyahu and his cabinet bear ultimate responsibility for the national failures that led to October 7. But Netanyahu is an elected leader; Bar is not. Civil servants are appointed by ministers. Ministers, in turn, are elected by the people.
Bar is accountable to the government. But a government? There’s a clear mechanism for replacing it; it’s called the ballot box.
Even if we grant that there may be a potential conflict of interest in Netanyahu’s appointment of Zini, Baharav-Miara’s response feels like an overreach. Netanyahu himself is not under investigation, nor are any members of his cabinet. The individuals involved are advisers who operated outside formal government channels.
That some of these advisers allegedly accepted money from Qatar, a country with which Israel maintains a complex relationship, does not, by itself, justify removing the prime minister’s authority to make appointments. Other prime ministers have relied on external advisers who simultaneously had work ties with foreign governments. If anything, this should spark a broader conversation about why such advisers are allowed to operate without formal conflict-of-interest vetting.
But even accepting that a concern exists over a potential conflict of interest, there are more reasonable solutions. Why not transfer the investigation to the police or ensure that the deputy head of the Shin Bet manages the inquiry, keeping the new director out of it?
And if the answer is that Itamar Ben-Gvir runs the police and that they, too, cannot be trusted, then this, too, is a problem since it means that, for some portion of Israel, no one in the elected government is to be trusted and only civil servants can be.
MORE FUNDAMENTALLY, Baharav-Miara’s ruling sidelines the role of the government entirely. While the prime minister nominates the Shin Bet chief, the appointment must be approved by the cabinet. That vote is not a rubber stamp; it is supposed to reflect collective responsibility, and ministers can decide to vote against the proposed candidate. For the attorney-general to dismiss that process is to insult the very structure of Israeli democracy.
Could Netanyahu delegate the nomination to another minister? Certainly. That would seem like a straightforward solution. But according to Baharav-Miara, even that wouldn’t suffice. She argues that because the process has been “tainted by severe flaws” and because a delegated minister might act as the “long arm of the prime minister,” the appointment must follow “strict guidelines” to prevent “ulterior motives.”
And what are those guidelines? The delegated minister must independently decide which candidates to interview, document each interview under legal supervision, provide a detailed rationale for the final nomination, and ensure the candidate’s qualifications are examined.
This isn’t a safeguard; it’s micromanagement that borders on judicial overreach. It implies that government ministers – elected officials – are little more than figureheads. Or, to borrow a term one of my children taught me, NPCs – non-playable characters with no independent thought. Just window dressing for a democracy run by unelected legal officials.
Is Zini the right person for the job? Maybe he is; maybe he’s not. But the truth is, we don’t know, just like we didn’t know whether Baharav-Miara herself was the right person to be attorney-general when she was appointed by the Bennett-Lapid government. What we did was trust the government that we elected, as happens every time there is a transition in elected leadership.
Consider the United States. When US President Donald Trump nominated Kash Patel to lead the FBI, critics objected to his lack of experience and claimed he would simply do Trump’s bidding.
Yet no one suggested the Senate was merely an extension of the president when approving the appointment. No one questioned the president’s right to appoint someone to the job. The systems are different, but the principle is the same: In a democracy, elected officials make executive decisions.
Netanyahu was elected to lead. That includes the authority to appoint a Shin Bet chief. To remove that power now, in this manner, looks far more political than legal.
This is the crux of the problem: In today’s Israel, almost nothing is straightforward. Everything is tainted by politics, even decisions by the court and the attorney-general. But one basic principle must remain sacred: In a democracy, the government must be allowed to govern.
Otherwise, what happens after the next election if Netanyahu wins again? Will the attorney-general declare that the people got it wrong?
The writer is a co-author of a forthcoming book, While Israel Slept, about the October 7 Hamas attacks, a senior fellow at the JPPI, and a former editor-in-chief of The Jerusalem Post.