The morning after the Knesset voted to repeal the “Reasonableness Clause,” the sun rose. The sky was blue, the birds chirped, the summer heat remained, and Jewish men put on tefillin. Somehow, life went on as normal, if still reeling from the mayhem in the streets. Israelis did not awaken to a dictatorship; indeed, the State of Israel was slightly more democratic and perhaps, down the road, will even be more Jewish. Yesterday, I even saved some money as shopping was limited, although it is depressing that merchants and workers lost a day’s wages because of the virtue signaling of some corporate bigwigs.
The judicial reforms have taken on the character of Chinese Water Torture, drip by drip, month after month and week after week of incessant demonstrations, threats and recriminations, dire warnings about the end of life as we know it, insubordination in the IDF (although the extent of that seems wildly exaggerated), and violent attacks on ministers and Knesset members supportive of the legislation. The irony should not be lost that those who scream the loudest about the imminent threats to democracy are those who engage in tactics that are hallmarks of dictatorships, including the refusal to accept the results of elections and their consequences, and taking to the streets as a mob to overthrow the duly elected authorities. It is as if they maintain "we have to destroy the democracy and make ourselves the permanent rulers in order to save the democracy."
Perhaps the error made by the government – whose constituent parties had been promising judicial reform for years – was not presenting an entire bill at one time but rather introducing the reforms piecemeal. Thus, only one plank was enacted, which presages that future reforms will generate the same foolish, counterproductive, and self-destructive protests, strikes, and irrational fears.
It was German Chancellor Otto von Bismarck who said that “laws are like sausages. It is best not to see them being made.” It was imprudent to negotiate with the opposition in the President’s House, a colossal waste of time as not one opposition representative compromised on anything and only sought delay after delay. But the members of Israel’s Knesset are not warring nations, all rumors to the contrary notwithstanding. There is no need for summit meetings at the (presumably) apolitical President’s residence. Laws should be proposed, debated, and resolved, one way or another, in the appropriate Knesset committees and in the corridors of the legislature where members and their staff can meet in private to try to gain consensus. And then, in a true democracy, the legislators vote, the winners applaud, and the losers accept the decision and pledge to use the legislative atrocity as campaign fodder in the next election.
In the end, the vote in favor of the “Reasonableness Clause” was overwhelming, 64-0, if only because of the childish boycott of the opposition. It is worthwhile to recall that Oslo I passed with a smaller majority (61-50, with 8 abstentions) and Oslo II with an even smaller majority (61-59), and in both cases, a majority of the Jewish Knesset members voted against the agreements. And those bills were much more momentous and consequential than is any item on the judicial reform agenda. The Oslo Accords got many Jews killed, recognized the PLO, brought them into the heartland of Israel, gave them weapons, territory, and diplomatic cover. I do not recall anyone in the mainstream media lamenting the narrow majorities (in which the Arab MK’s provided the parliamentary margin of victory), the lack of national consensus, the rush to a decision, or the illegitimacy of a government that campaigned on not recognizing the PLO. Nor did the President at the time beg for negotiations in his residence or bellow about the dangers facing Israel. No one will die because of tinkering with the judicial process and yet one would think the sky is falling. It is not and it will not. Perhaps the media is biased? Perhaps.
This particular bill does not change the judicial dynamic all that much, although it is a good start as “reasonableness” has never been a factor in judicial decision-making. Judges are supposed to interpret the law, not pass judgment on whether a law, decision or policy is reasonable. Their notion of “reasonable” is no more salient or sagacious than that of the legislators, and no law afforded them the right to issue decrees on such grounds. Thus, the Court literally had no authority to rule on such a basis and usurped the legislative and executive role in doing so.
Yet, power – even or perhaps especially illicitly seized – is not easy to relinquish. One hopes that the Court will take to heart this legislative rebuke and unilaterally limit the scope of its heretofore unlimited powers. It is unlikely, although possible, that the Court will void the repeal of the “Reasonableness Clause” as unreasonable, but that would really provoke a crisis. There is no law that makes the Supreme Court the ultimate and final authority on everything in the State of Israel. What is more likely given the temperament of some of the justices is that they will begin invalidating legislation, appointments, decisions or policies not because they are unreasonable (or because they contradict some existing law, which is legitimate) but because the Court finds them “illogical,” “unfair,” “biased,” “disproportionate,” “arbitrary,” or “unwarranted,” or some other synonym for “unreasonable.” Let us hope that too does not happen or the Court’s legitimacy will be forever tainted.
It is helpful to recall President Andrew Jackson’s rejoinder (1832) when he felt that US Supreme Court Chief Justice John Marshall had overstepped his authority and prevented the expansion of US sovereignty into Indian territory: “John Marshall has made his decision; now let him enforce it.” (The quotation is perhaps apocryphal; the reality is that Jackson did not enforce Marshall’s decision.) America could survive that. Israel is a smaller country, and largely family, where disputes can continue for generations and where we have real enemies with which to contend. Let us pray it never comes to that either, where a Supreme Court decision is so outrageous and blatantly political that the political branch just ignores it. Courts in America operate with a principle known as “judicial restraint” and courts in Israel would do well to learn and implement that principle.
The “Reasonableness Clause” repeal, despite the hoopla, the overheated rhetoric, and the doomsday prophecies, does not accomplish that much on its own. Several other key reforms are essential, including limiting the authority of the Attorney General (technically called the “Legal Advisor,” but one whose advice must always be taken; that, too, is absurd). Similarly, changing the composition of the judicial selection committee to make it more political is a good thing, not a threat to our existence. For some reason, people in Israel assume that a judge appointed by political party nomination is beholden to that party forever, regardless of the nature of the law on which the judge is ruling. In the American experience, that is decidedly not so. One of the bitter ironies of recent American history is the number of justices nominated by conservative Republican presidents who then turned out to be anything but when they sat on the Court (see Earl Warren, Harry Blackmun, Sandra Day O’Conner, Anthony Kennedy, David Souter, and others). This anxiety is a poor reflection on Israel’s future justices and perhaps results from Israel’s Supreme Court overinvolvement in partisan politics. One way to remove the Court from politics is to grant them jurisdiction only on cases and controversies that affect aggrieved parties, and not just someone who does not like a particular policy.
Finally, a need for some check on the Court’s decision-making is necessary. The Knesset must pass an override clause, which should be used sparingly. I would suggest a Knesset majority requirement of 65, 67 or even 70 votes that ensures that any override has broad support – certainly broader than the Oslo Accords or the Gaza Expulsion had.
Compromise is always welcome. More importantly, we need cooler heads and calm reassurance. The protesters who were led to believe that riots and anarchy define the political process should think again. Chaos will not accomplish anything productive and will certainly not topple the Netanyahu government, the true objective of so many of them. It is inconceivable that they would rather see the country destroyed than live with a Supreme Court whose powers are simply comparable to almost every other Supreme Court in the world. They should look around and see that the earth is still rotating on its axis, the sun is still shining, the land of Israel is still beautiful (if a bit hot), and the State of Israel, with God’s help, is flourishing and will continue to flourish.
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