If you are paying attention to news recently, you may think that Prime Minister Netanyahu is singlehandedly destroying Democracy in Israel. You may think the current government is dismantling the judicial branch for their own selfish interests, and that the noble Israeli people are rising up in brave protest. But appearances can be deceiving.
On the contrary, the reforms are reasonably intended to make the country more democratic. The protests are loud and visible, but they only represent the vocal minority of Netanyahu’s opposing coalition. The Israeli Supreme Court is in dire need of reform. It is much more powerful than its counterparts in America and much of the western world. In Israel, the current method of selecting Supreme Court Justices is unfair. Justices are selected by a committee that includes the current Justices themselves, giving the Justices control over their replacement. As a result, the court is largely homogeneous, secular and leftwing. In America, Supreme Court justices are selected entirely by elected representatives–the elected President chooses the Justices and the elected Senators confirm or deny. Netanyahu wants Israel’s system to be more like America’s, where the elected Knesset members choose the justices. Of course, this is a change that would make the system more democratic.
So would the constitutional changes, which are proposed to address the absence of any legal standard in deciding cases and striking legislation. In Israel, there is no formal constitution. As such the Supreme Court decides matters based on the doctrine of “reasonableness.” This means that any law or government action can be overturned by the court if they think the action is “unreasonable.” The Court can also outlaw any government minister from serving under this doctrine. Imagine if the American Supreme Court decided that it is unreasonable to have Kamala Harris as Vice President and removed her from office. Crazy, right? Well in Israel the Supreme Court has this power and they recently exercised it and removed Minister Aryeh Deri from the Netanyahu government.
Similarly, limitations on standing would increase judicial fairness. In the U.S., one is not allowed to bring a matter to court unless they have standing; that is unless they can demonstrate they have been injured by the matter at hand. In Israel there is no doctrine of standing. As such, anyone at any time can bring any issue to court and have the issue adjudicated. As a result leftwing NGOs funded by foreign governments constantly bring frivolous matters to the Supreme Court and gum up the works in order to block government action.
Finally, in Israel, the Attorney General–who is not necessarily appointed by the government in power– is essentially the most powerful figure in the country. He or she on a whim can veto any government policy or action, and even give mandates to the Prime Minister. Imagine a scenario where President Trump’s original Attorney General, Jeff Sessions, serves out Trump’s full term, is still in power when Biden is elected and proceeds to order the President to not discuss any matters related to China because Biden has a conflict of interest. Yes, that’s how absurd the Israeli system is, and this scenario recently played out when the Israeli Attorney General ordered Netanyahu not to be involved in the deliberations over judicial reform because he supposedly has a conflict of interest on the matter.
The current Israeli government’s pending reforms to ameliorate many of these problems would actually make Israel’s system more democratic. It would rebalance the branches of government and give the elected representatives more power. Isn’t it actually undemocratic to have decisions made by unelected judges without a legal standard? Even more, isn’t it undemocratic for an American President to heavily weigh in on the purely domestic affairs of another country?
In reality, the Israeli left is throwing a temper tantrum because they see the country slipping away from them. They lost the recent election. They hate the rightward political and religious shift of the country and they accurately see the Supreme Court as their last vestige of power, even if the court wields too much power. And they correctly see an opportunity, with the media and international community at their backs, to undermine the current government and overturn the election by making the country ungovernable– by shutting down the country’s hospitals and airport, encouraging desertion among Israeli IDF reservists and threatening civil war.
If the left in Israel is upset about the way things are transpiring, they should make their case to the rest of the country, try to win the next election and then change things, rather than tear the country down. That would be democracy.
Sam Levine has spent his entire personal life and professional career fighting against anti-Semitism. Mr. Levine is currently Director of a private Jewish foundation dedicated to pro-Israel causes.
