The Israeli political left will fight anything the Netanyahu government proposes by warning of the “death of democracy.” But what if the government’s controversial judicial reform proposal were endorsed by highly regarded American legal scholars? Would that not demonstrate that the reforms are compatible with democratic values?
With one exception discussed below, all the proposed reforms are not only reasonable but parallel American judicial practice.
1. America’s judicial system works, in part, because the political leanings of its courts are cyclically balanced. For example, elected Democrats create a mostly left-leaning judiciary. Then, in time, elected Republicans stack the judiciary to the right. Thus, over time, American courts shift from left to right and back again.
This is also a check on the courts’ power. For example, a renewed Supreme Court may overturn repugnant precedents despite fealty to stare decisis. This recently occurred when the Court overturned Roe v. Wade. More than 300 other Supreme Court decisions have been thrown out by subsequent courts.
The single most glaring failure of Israel’s judicial system is that this cyclical change is virtually impossible. Because of the method of choosing new justices, over which current justices exercise a veto, the Supreme Court is politically self-perpetuating. Even a leftist judicial nominee like Israel Prize laureate Ruth Gavison was rejected because of her objections to extreme judicial overreach.
This failure to allow for cyclical change is the heart of the problem. In America, the elected president names judges and the elected Senate confirms them. No one claims this is anti-democratic or endangers minority rights.
Such a system is exactly what Israel needs: For the elected prime minister to name judges, who are confirmed by the elected Knesset.
2. In America, the Supreme Court cannot bar a person from office unless he violates a Constitutional rule, such as a minimum age requirement or conviction for treason.
Thus, while Richard Nixon may have broken the law during Watergate and Vice President Spiro Agnew pleaded guilty to all kinds of financial corruption, the Court had no power to unseat them. The elected Congress, however, has the power to impeach, convict, and eject elected politicians. Nixon and Agnew both resigned in order to avoid this.
Israel should adopt the American model. Its Supreme Court should have no say in governmental appointments, which should rest entirely with the elected Knesset.
3. In the U.S., the attorney-general advises the head of government and represents his policies. The attorney-general is appointed by the president and tends to be intensely loyal. When the president leaves office, his attorney-general leaves with him.
In Israel, by contrast, an attorney-general can refuse to represent the government at the Supreme Court and can even argue against the government. Moreover, the government is prohibited from obtaining alternate counsel. An Israeli attorney-general remains in office under any successor government, even if he is opposed to its policies. Accordingly, the attorney-general’s role in Israel should be redefined to mirror that of its American counterpart.
4. In Israel, legal advisors to government officials are appointed and exercise power not only to advise but compel officials to act or refrain from acting. This extraordinary authority vested in unelected bureaucrats should be ended.
5. Under the rules of “justiciability,” the U.S. Supreme Court has no authority to hear matters pertaining to military or political strategic decisions that do not entail matters of law. The same rule should be adopted in Israel, including on issues of religion, something that is taken for granted in America.
6. Any plaintiff appearing before the U.S. Supreme Court must demonstrate “standing.” They are required to show that the claimed wrong harmed them specifically. For example, an industrial concern can be sued by a local resident whose property is being impacted by pollution, but cannot be sued by an NGO. Similarly, Jews cannot sue antisemites like Kanye West or Louis Farrakhan unless they can demonstrate that they have been personally defamed. The requirement of standing should be adopted in Israel as it has been in America.
7. The Israeli Supreme Court can overturn any law it deems “unreasonable.” No such legal standard exists in America. A judge’s personal opinion on what is “reasonable” does not constitute law. Anyone who wants his personal opinion to be part of the law-making process should run for elected office. Israel’s “unreasonable” standard should be abandoned.
The seven proposals above mirror the American judicial system. There is no objective reason, other than cynical politics, for American government officials and American Jewish groups to oppose them.
8. There is one proposed reform that does not sit well: That a simple Knesset majority can overturn a Supreme Court ruling. The legislature should have the power to check and balance the judiciary, but this proposal needs refinement.
To win broad support for it in both Israel and America, a “blue ribbon committee” should be named by Israeli Justice Minister Yariv Levin and Chairman of the Knesset Constitution, Law, and Justice Committee Simcha Rothman to advise on how to advance this reform to its final passage.
This committee should include former U.S. Attorney-General Michael Mukasey, renowned constitutional law expert Nathan Lewin and a third American constitutional scholar selected by Mukasey and Lewin. It should be someone with conservative credentials compatible with the democratically elected Israeli government and known to be fair and above the political fray, such as William Barr or Jonathan Turley.
Any final bill that enjoys their “buy-in” will not satisfy the Israeli left and its demagogic street leaders. However, it will win the approbation of financial markets and signal to fair-minded Israeli moderates, responsible mainstream Jewish organizations and various Western governments that judicial reform in Israel will create a system as reasonable as other Western legal systems.
Rabbi Dov Fischer, a law professor and vice president and senior rabbinic fellow at the Coalition for Jewish Values, is a senior contributing editor at The American Spectator.