The judiciary branch of the government needs to be at the top of its game. Some changes are required.
If anyone from the leadership of Hamas was still alive in Gaza to ask, one might query him about what they expected to happen versus Israel’s flattening of the enclave. My guess would be that their first answer would be that they expected Israel to be very careful in its response due to the presence of 250 live and dead hostages. Israel fought furiously, and one of the many painful episodes of the war was the unintentional killing of three escaped hostages mistaken for terrorists.
Why would Hamas have thought that Israel’s hands would be tied because of the presence of so many hostages? As I say, the Palestinians always fight the last war. When they had one hostage, Gilad Schalit, the country ground to a halt. Israel did whatever Hamas dictated, including exchanging 1,000 terrorists for a hapless soldier who should never have left the safety of his tank. The planners of the October 7th attack, including Yahya Sinwar, came out in that cohort. Nobody at the time wanted to be the guy who got Schalit killed:
Bibi Netanyahu agreed to whatever terms Hamas put forth
Shimon Peres happily signed off on 1,000 pardons to murderers
The high court refused to give grieving families their legal two weeks to appeal the pardons
The press castigated anyone who dared to suggest that the deal was bad
The US—at my nudging—prepared a list of terrorists who harmed Americans. They never gave it to the Israelis
Nobody wanted to be the guy who actually followed the law or asked if it was so smart to release so many bad people and then have a picture of Schalit’s lifeless body plastered on his front door. So the deal went through and 2,000 civilians and soldiers are dead at the hands of Sinwar and his army of terrorists and supporters. Hamas expected Israel to walk on eggshells with the risk of hostage executions, but Israel unleashed a destructive hell on Hamas and Gaza never seen before. One can stand at the border fence and see the sea miles away as there are no longer any pesky buildings in Rafah or Khan Younis to block the view. Hamas never expected such a response, but the brutal, horrific pogrom made all of the rules old and obsolete—including worrying more about hostages than about winning.
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We attended the High Court hearing where the families of victims tried to slow down the release of the terrorists. An Israeli citizen has two weeks from the announcement of a presidential pardon to file an appeal to keep the bad guy behind bars. The government released the names of the killers 48 hours before the exchange took place. Hamas demanded no delay, and in one of the most stunning court experiences I have had, one of the three judges (one fell asleep) said, “You know, you’re right about two weeks, but the deal goes through as planned.” The government knew that the High Court would not interfere, so they sent someone from the Ministry of Justice cafeteria to represent the state of Israel. The Schalit family sent a heavy-hitting lawyer: they were taking no chances on some legal snafu.
The government’s representative said that every terror victim had been sent a letter about the release. We didn’t get one and I know of nobody who received any kind of heads-up that “their” terrorist was on his way out. One of the two awake judges asked why they did not call each and every family to warn of the impending release of the bad guys. “We don’t have enough people.” “Then hire more!” He castigated the lawyer for not having enough people manning the phones to warn the families. And he was right.
Court cases in the US are measured in years. Our case against the PLO and Palestinian Authority is over 20 years old. Cases going for five or 10 years are not unusual. There should be a maximum of three years, whether criminal or civil. Dragging cases out makes them very expensive due to continued lawyer fees. Swift justice is considered an important ingredient of a functioning society. Several changes will be needed if there is any chance of streamlining case work.
*The judiciary will have to be expanded. I don’t know if there is a need for 200 or 2,000 new judges or possibly an entirely new class of courts, but there needs to be many more people working cases so as to reduce the backlog of pending litigation. Our case was filed in 2004. It went to trial in 2015. Cases should be over in a maximum of three years, with all appeals, excluding the Supreme Court.
*All cases related to presidential Executive Orders should go directly to the Supreme Court. There is no place for the lower courts blocking the government only to have such rulings overturned by the Supreme Court. This route should be extremely limited, but ideally, it should stop lower court judges from creating national injunctions only to wait 9 months until the Supreme Court overrules many of them.
*If cases are not finished in a timely manner, then they are dropped. One rule in Israel involves moving violations. Don’t pay the fine: demand a court hearing. If they don’t get you to court in one year, then they have to throw out the ticket. Obviously, mechanisms and punishments must be in place to prevent one side trying to run out the clock. But cases should be adjudicated expeditiously so as to allow people to move on.
*In order for the system to work, judicial rulings need to come soon after hearings. Today, half a year or longer may be the time between an actual hearing and a ruling. Again, if it means that each judge gets five new clerks, so be it. Cases dragging on benefit nobody, increase costs, and make a bigger abyss between the event that triggered litigation and the outcome.
In the Torah, it says at certain places regarding capital punishment: “That the people should hear and fear.” The idea is that if somebody killed another and is put to death in short order, people can associate the outcome with the crime. That’s how field justice used to work—if a German dressed as a civilian, he would be judged and shot before the sun went down. But now we have at least 20 years on death row, and when they finally kill the guy by lethal injection or listening to insurance ads, nobody remembers what he did. “Oh, back in 1982, he went into the family’s house and killed everybody, set the house on fire, and then came back to look for his glasses.” In criminal cases, there is a complete disconnect between a bad action and an actual punishment. This means that nobody learns anything from the outcome—part of the purpose of the judicial system is not only to punish but to strongly encourage others to behave. Only if a punishment is meted out close to the criminal action can one hope to discourage others from acting badly.
Legal cases must move far more quickly through the judicial system. Will more mistakes be made? Maybe. But cases dragging out for years and decades are also a form of “mistake” or punishment. If the authorities cannot get a conviction quickly, then the guy should walk. If two parties cannot get their lawsuit settled in three years, then the court should impose a settlement and end the lawyer fees and requirement to drop everything so as to be in court. No system will be perfect, but a faster system will be healthier for the Republic.
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