When the U.S. Supreme Court overturned Roe v. Wade on June 24, 2022, the Rabbinical Assembly, the international association of Conservative rabbis, issued a statement expressing “outrage” at “one of the most extreme instances of governmental overreach in our lifetime.” In the release, it called on members of Congress to codify Roe v. Wade into law.
On March 27, the same association of Conservative rabbis applauded the suspension of judicial reform in Israel. “The proposed legislation would have undermined the independence of the judiciary and jeopardized the democratic fabric of Israeli society,” it stated.
What’s sauce for one independent judiciary is not always sauce for another independent judiciary, as the aftermath of Israeli Prime Minister Benjamin Netanyahu’s announcement that Israeli judiciary reform was on hold has demonstrated. Legal experts told JNS that Israel’s high court is in need of urgent reform, but how best to fix it is difficult to say. And statements from Foggy Bottom, the White House and American Jewish organizations muddy the waters, the experts said.
“The contradictions between people’s characterizations of Israel’s reforms and parallel debates in the United States are glaring,” Adam White, a senior fellow at the American Enterprise Institute who studies the Supreme Court, told JNS.
On March 27, the Conference of Presidents of Major American Jewish Organizations, the Anti-Defamation League, American Jewish Committee and Jewish Federations of North America issued a joint release welcoming the suspension of judicial reform, calling the past three months “painful to watch” but “a textbook case of democracy in action.” The Jewish groups stated their “respect” for those who took to the streets “exercising their love of country and their passion for democracy,” and encouraged legislators to “use this time to build a consensus that includes the broad support of Israeli civil society.”
The Conference of Presidents did not respond to a query from JNS asking if the major Jewish groups also commend those who took to Israeli streets that evening in support of judicial reform as “exercising their love of country and their passion for democracy.”
‘Broadest possible base of support’
The language the groups used—“broad support of Israeli civil society”—echoes statements from the White House and the State Department.
During the daily press briefing on March 27, Vedant Patel, the U.S. State Department’s principal deputy spokesperson, responded to a question about Israel, “Democratic societies are strengthened by checks and balances, and fundamental changes to a democratic system should be pursued with the broadest base of popular support.” In response to a different question, he added the word “possible”: “Fundamental changes to a democratic system should be pursued with the broadest possible base of support.”
Mere minutes before White House press secretary Karine Jean-Pierre used the same language during the press briefing, although she used the second quote—with the word “possible”—in response to two questions. Adrienne Watson, spokeswoman for the National Security Council, said the same words in a March 26 statement, and the phrase “broadest possible consensus” surfaced twice in a March 22 letter from Jewish Agency for Israel leadership to Netanyahu.
That the Biden administration is preaching to Israel the importance of legislating by broad consensus is the height of hypocrisy, Richard Epstein, professor of law and director of the Classical Liberal Institute at NYU Law, told JNS.
“[Biden] is a complete autocrat,” said Epstein, who also holds a senior fellowship at the Hoover Institution and a distinguished emeritus law professorship at the University of Chicago. He called executive orders “a Biden specialty.”
Epstein just sued Biden unsuccessfully for what he described as the president’s unilateral firing of advisory committee members, whom presidents appoint but whose jobs have been secure despite administration transitions in the past.
“This has never happened with respect to these advisory committees,” he said. “Nobody turns in a letter of resignation. Nobody fires them. And Trump puts his people in there, and so the Biden guys come in and fire them all.” (Epstein famously called for former President Donald Trump to resign on his first day in office.)
“The first and only time in which it has been done,” said Epstein, noting that Biden has often turned to executive orders rather than broad consensus—the very thing his administration is calling on Israel to pursue or risk harming its democracy.
“What Biden does when he wants to stop the pipeline—executive order. He wants to forgive $500 billion worth of student loans—executive order. He wants to make sure that when government grants go out they go to a union-type situation, you add conditions to them,” said Epstein. “The most unilateral guy on the face of the globe talking about everybody else not respecting democracy. He is a complete menace.”
“Trump used to bawl and scream about that stuff, but never once did he fire somebody from a term appointment in order to put his people into place,” added Epstein. “You get this sort of pious talk coming out of these characters, but they are as anti-democratic as you could possibly imagine with respect to the way in which they do this business.”
The Biden administration and the president, he continued, “essentially treat two things—the executive orders and regulations on admitted statutes as ways to modify legislation without going through legislation. That’s what they think.”
That’s not what executive orders are supposed to do, he explained. “They are supposed to essentially do bookkeeping. Here is a program, and you are supposed to file papers. We’re going to give an executive order to tell you where you file these papers and how many copies you have to put out. Things like that.”
Although it is incontrovertible that the Israeli judiciary is broken, fixing it is tricky, “as American institutions don’t quite travel easily to a parliamentary system,” said Epstein.
‘Crucial context regarding Israeli constitutional history’
Aylana Meisel, founder and chair of Tikvah Israel’s Israel Law and Liberty Forum, told JNS that Israelis—for the first time in the country’s history—have the chance to establish “political rules by which the most important aspects of our national character and welfare are decided.”
“This complex process is critical to the very future of the Jewish state. It continues decades of efforts by members of both the right and the left who believe that the unrestrained growth of judicial power has damaged the rule of law and heightened social tension,” she said.
As Israelis consider how to restore governmental balance, they ought to seek out advice from allies overseas, who can contribute wisdom to the debate, according to Meisel.
“But attacks on the sovereign government of Israel are inappropriate, unwarranted and often lacking in crucial context regarding Israeli constitutional history,” she said. “The Jewish nation dreamed for 2,000 years to be a free people in our homeland; the decision of how to maintain a secure, free and flourishing Israel is reserved to its citizens alone.”