The Dismissal of the Attorney General: This Is What Happens When the Two Political Camps Look at the Empty Half of the Glass

With God’s help

In recent days, the dispute over the judicial reform has reawakened in full force. Once again, both sides are entrenching themselves in their positions, and the feeling is that this is a familiar script, with the constitutional crisis inevitable. The main problem is not the argument itself, but that each side sees the other as stupid and/or wicked, and therefore is unwilling to listen to its arguments.

Think about the debate over the reform that took place about two years ago. A typical poster by the reform’s supporters said roughly this: "True, the government may have gone too far, but there is no doubt that reform is needed." Conversely, a typical poster by the reform’s opponents would say: "True, reform is needed, but they went too far."

Notice that both sides agree that reform is needed (hardly anyone disputes this, among legal experts and in the broader public alike), and both agree that things went too far (here too, there is almost no dispute). So what exactly is the argument about? There are, of course, disagreements about degree, but it is clear that on both sides of the barricade there is no complete uniformity. Therefore, there is no doubt that the position of some of the reform’s supporters is identical to the position of some of its opponents.

The division exists mainly because of camp affiliation—being for or against the government, against or in favor of the judicial system (unfortunately, that is almost the same division)—and, in practice, on the basis of that division, the sides choose whether to focus on the half-full or the half-empty glass. But after making that choice, both sides completely ignore the other half of the glass. The result is a situation in which both sides feel that there are no arguments at all in favor of the reform—if you are among the opponents—or against it—if you are among the supporters. We view the dispute as a full glass versus an empty glass. And what is the result? Each side is convinced that the other side holds a position that has no arguments behind it. The inevitable conclusion is that the other side is wicked (it wants to destroy the judicial system, or it wants to neutralize the elected government) or stupid (it does not understand the arguments for or against). This situation intensifies the lack of attentiveness between the sides, and the deadlock is reinforced in a positive-feedback loop until the predictable destruction.

This is also the situation in the debate over dismissing the Attorney General. Anyone who examines the government’s arguments honestly and with a willingness to listen (how many of you have read the document in which they are explained?) can see that they have real merit. The Attorney General is conducting herself in an adversarial manner (albeit, in some cases, with considerable justification), and therefore, objectively speaking, it is very difficult for the government to work with her. It is important to remember that this fact constitutes legal grounds for her dismissal. Legal experts who are not supporters of the government say this as well. A clear example of the matter is the amendment to the Basic Law on incapacity. The Knesset’s legal adviser saw it as a legitimate legal arrangement, yet the Attorney General determined that it was so unreasonable that she refused to defend it in the High Court of Justice, and at times even prevented the government from obtaining alternative representation in court (another distorted arrangement that must be changed Within the framework of a judicial reform). After all this, eleven justices of the High Court of Justice rejected the petition—unanimously. If this really was such an unreasonable arrangement, how did it fail to receive even a single vote in the High Court of Justice? Does that not indicate the Attorney General’s adversarial stance?

But there is another side to the coin. The reason for the Attorney General’s adversarial stance is the irresponsible conduct of Israel’s current government, conduct that at times borders on breaking the law. Therefore, the opponents are also correct in arguing that significant checks are needed in order to restrain it, and it is no wonder that they see the dismissal of the Attorney General as a threat amounting, in their eyes, to a casus belli where the rule of law is concerned. They are absolutely right that the balance among the branches is very important, and that one branch must not be allowed to accumulate too much power, and there is no doubt that the government is indeed taking things too far (the argument is, of course, where the balanced line lies).

What we are seeing before us is an escalating tango between two sides, each of which behaves in an extreme and irresponsible manner, and therefore the other side is "justified" in its extreme (and irresponsible) response.

The unwillingness to listen and to discuss arguments on their merits, and, as a result, the tendency to see the other side as wicked and/or stupid, are our undoing. I would like to be naïve and suggest that both sides try to overcome their many accumulated grievances (most of them justified), and to examine substantively the arguments on both sides. I think that if you examine them, you will discover that you agree on almost everything.

If we are wise enough to conduct the discussion about the substance rather than the personalities, there is a chance of preventing the constitutional crisis and perhaps even reaching an agreed-upon reform.

Originally published in the newspaper "Makor Rishon"