The harsh rhetoric and severe criticism flowing between Israel and the US as a result of Prime Minister Netanyahu’s judicial proposal has been distressing to friends of both countries and to supporters of the US – Israel relationship. Most troubling is the claim by America’s chattering classes that recent events have undermined Israeli democracy, and, as a consequence, Israel and the United States no longer share the same values. Therefore, it is argued, America should distance itself from its long time friend and ally.
That is nonsense.
It is true that democracy has been undermined — in the United States. Consider the following:
● Half the country is certain that the loser in the 2020 Presidential election really won and that the election was stolen, and the 2020 loser has been indicted for unlawfully attempting to overturn the election results.
● A mob broke into the capitol shortly before the 2021 inauguration and almost prevented certification of the Presidential election winner.
● The 2016 runner-up for the Democratic Presidential nomination (Bernie Sanders) claimed he lost only because the process was “rigged” in favor of his opponent (Hilary Clinton); the 2018 Democratic candidate for Governor of Georgia (Stacey Abrams) claimed she lost only because Republican state official suppressed the votes of people of color; and Democrats claim that their nominee in 2000 (Al Gore) lost only because the Supreme Court improperly intervened in favor of his Republican opponent (George W. Bush).
● In 2000 and again in 2016, the Republican Presidential candidate was elected even though the Democratic candidate received the most votes. This is not an anomaly; it is inherent in our undemocratic Electoral College system.
● Congressional and legislative districts in most states are gerrymandered so that a minority of the electorate can and often does out-vote the majority.
● Many states have imposed harsh identification requirements and other barriers to voting.
The list goes on.
But nothing like this has happened in Israel. An undermining of democracy? On the contrary, democracy is alive and well there. Look at what is happening:
● Most important — the Netanyahu judicial proposal is being considered, debated (albeit raucously) and voted on by a democratically elected legislature (Knesset). It is not being imposed autocratically.
● Five general elections have been held in less than four years, without any claim that the elections were rigged, fraudulent or stolen.
● Over 2/3 of eligible voters participate in these elections, a far greater percentage than participate in US elections.
● Demonstrations and protests that, yes, are unruly but largely peaceful — more than their US counterparts (think Black Lives Matter) — have been on-going and allowed to proceed without government interference.
These are the hallmarks of democracy, not a reflection that democracy has been undermined.
The pundits/critics say that Netanyahu’s proposal is being “rammed through the Knesset”. What is wrong with that? That is the democratic process in action. Were the US Civil Rights Acts “rammed through Congress” by LBJ? Fortunately, yes — and he was lavishly praised for doing so. (And by the way, in Netanyahu’s case it has been a very slow “ramming”, since the process has been ongoing for months.)
The pundits/critics complain that Netanyahu’s proposal is being promoted by a “narrowly elected” coalition with a tiny legislative majority and therefore “lacks consensus”. So what? That is the way democracy works; the majority rules, even if it’s a slim majority, even if crucial matters are sometimes decided by one vote in the legislature. Remember when John McCain, dying of cancer, came to the floor of the Senate to cast the one deciding vote that saved Obamacare, to the cheers of multitudes? The US Congress passed the military draft extension by one vote in 1941, an act that historians regard as highly important for America’s World War II preparedness. The US Senate vote on whether to convict President Andrew Johnson, after he was impeached by the House, failed by one vote. The Senate dissenter was later praised by President John F. Kennedy in his prize-winning book “Profiles in Courage”.
In short, sometimes democratic governments are narrowly elected (look at today’s US Senate) and their leaders have to “ram” their proposals through. Democracy can be messy, but that is part of the process — not an indication that the process has failed. Certainly what we are witnessing in both Israel and the United States fits that description. It does not amount to the end of democracy or the erosion of shared values between the two countries.
There are three essential elements to the Netanyahu judicial reform proposal.
First: The centerpiece is a plan to change the way Israeli Supreme Court judges are chosen, as follows:
Currently, this is done by a nine person Selection Committee. A slight minority of its members (four of the nine) is comprised of elected political officials: cabinet ministers and Knesset committee chairmen. The five person unelected majority consists of three Supreme Court justices and two bar association representatives.
Under the Netanyahu proposal, the Selection Committee would be expanded from nine to eleven people, a slight majority (six of the eleven) of which would consist of elected political officials. The remaining Committee members would have the same unelected professional orientation as currently — i.e. three Supreme Court Justices and two bar association representatives — but now they would be in the minority.
The current system effectively allows unelected Israeli Supreme Court justices — allied with private citizens —to control the selection of their successors, precluding the government from doing so. In all likelihood, the practical impact of the Netanyahu proposal would be to shift the power to appoint Supreme Court justices from unelected individuals to elected political officials — namely, to the government and its leader, the Prime Minister. In other words, Netanyahu himself (as long as he holds that office) would control the selection process.
Think about that for a moment. Would that proposed change make the Supreme Court judicial selection process less democratic or more democratic? The answer is obvious. Control of the selection process would shift from unelected judges and private citizens to elected cabinet ministers and legislative chairs, all presumably under the leadership of the country’s highest elected official — the Prime Minister. So despite everything you are reading and hearing about the plan’s adverse impact on democracy, it would in fact foster democracy. That doesn’t mean it is a good or positive change. Maybe it’s a bad idea. Maybe there are perfectly fine arguments for keeping the system as it is. But let’s put those arguments on the table and debate them calmly and honestly, rather than engaging in non-substantive, shrill name-calling by labeling the change “anti-democratic”.
Let’s go further. Who chooses such judges in the United States? Answer: Every judge on the American Supreme Court, the Courts of Appeals, and the District Courts, every single one, is chosen by a single elected politician — the President of the United States. Yes, they must be confirmed by the Senate — also a group of elected politicians. So the Netanyahu proposal would make the Israeli system of Supreme Court judicial selection more like the American system, with more power in the hands of elected government officials.
Would that mean the end of shared values between the two countries? Or would it mean the opposite —i.e., that the two countries’ judicial selection procedures would more closely resemble each other. Again, the answer is obvious.
You will never read or hear of this similarity between the Netanyahu proposal for Supreme Court judicial selection and the existing American judicial selection system in the commentary of the pundits/critics. That would undermine their argument, so they don’t mention it. But it is obviously quite significant in a discussion of shared values between the two countries.
Second: The Israeli Supreme Court takes the position that it has the power to invalidate acts of the legislative and executive branches, including legislation and appointments to high government positions, on the ground that, in the Court’s opinion, they are “unreasonable“. It has frequently done so. The Netanyahu plan calls for the elimination of this judicial power. This part of the proposal has actually been enacted by the Knesset, although it is still subject to final approval in the fall.
The American pundits/critics who fiercely oppose repeal refer to this as “the well-established reasonableness doctrine”, but they never mention its undemocratic provenance. In fact, the doctrine was not enacted by the Knesset, promulgated by the cabinet or approved by the public through a referendum or popular vote. Rather, it was invented by the Court itself. In other words, it is a device created by an unelected body – the Supreme Court – and used by it to overturn the actions of an elected body (the Knesset) and elected officials (the cabinet and PM). Whatever else it might be, therefore, the “reasonableness doctrine” is not democratic, and its repeal is not anti-democratic. Most democratic countries, including the United States, have no such doctrine.
Israelis who favor repeal argue that the doctrine is too broad and has allowed an activist court to overturn the will of the people. That, they say, is the real threat to democracy. Revoking the doctrine, they argue, will enhance democracy, not undermine it. One might agree or disagree. Clearly, however, repeal of the reasonableness doctrine has not destroyed or undermined Israeli democracy or shredded the bond of shared values between our two countries.
In the final analysis, repeal of the doctrine is a matter on which reasonable minds can differ — the kind of governmental issue that Israel has a right to decide for itself without frenzied lecturing from critics in other countries.
Third: The other major change in the Netanyahu proposal is to make it easier for the Knesset to overturn decisions of the Supreme Court. Would you be shocked by a proposal to make it easier to overturn the current US Supreme Court’s decisions on abortion, gun control, affirmative action et al? Many such proposals are pending and enjoy substantial support from Americans.
I respect and admire the role of the courts — unelected though they may be — in curbing excessive majoritarianism, protecting civil liberties, and serving as a check and balance on the other branches of government. But exactly how that should be done is a matter that a free country has the right to decide for itself, as long as it does so through a fair, democratic process. That is what is happening in Israel.
That raises the question of how the US government and populace should respond to Israel’s consideration of these measures.
Let me start with an anecdote that demonstrates how we should not respond. On a recent visit to Israel, I was approached outside my hotel by a woman who recognized me to be an American visitor and proselytized me on the issue. “They are destroying Israeli democracy,” she said. “What is it that you want me to do?” I asked. “Use your influence with the American government; get it to put pressure on Israel not to enact these proposals.” I said “I am not an Israeli citizen, resident or voter. I don’t pay taxes here, serve in the military here, rush to or take refuge in bomb shelters when Hamas rockets fly here. You want me to go to a foreign country — the USA — and get it to use pressure to prevent Israel’s elected parliament from enacting certain legislation. That is what would undermine Israeli democracy!”
I thought the woman who approached me was an Israeli, but when I examined the leaflet she gave me, I saw that she was part of “a US-based group” engaged in a self-described “fight for democracy in Israel.” Astonishing.
Of course, Americans should feel free to speak out because that is the privilege and obligation of allies. But any such advocacy should be fact-based and temperate. “The sky is falling” should not be an option, but that is what we are hearing and witnessing.
Two other points:
One: At the moment, the Supreme Court is the only significant center/left political entity in Israel that can offset the power of the right wing parties which currently control the government. As such, it is an important check and balance. Fair enough.
But, that is a partisan political justification for maintaining the reasonableness doctrine. Once we accept it, we are treating the court as a political/ideological/partisan entity, not a neutral court of law. Are we prepared to do that? Is so, what happens when the wheel turns — when the Israeli Knesset and cabinet shift to the left, while its Supreme Court shifts to the right; and the decisions of the latter overturn the progressive polices of the former. Will everyone change their position on this issue, depending on their partisan inclination?
Of course, the ultimate check and balance is the electorate, which, in Israel has repeatedly tilted to the right in recent elections. Should its decisions be ignored?
Two: The most disturbing, anti-democratic part of this whole debate, in my view, is the announcement by a number of military officers that they will refrain from active duty in order to exert pressure against this proposal. It makes me very uncomfortable to see the military — an unelected, non-democratic entity if ever there was one — intervene in civilian political affairs. However, the self-proclaimed pro-democracy US pundits/critics are applauding it.
Finally: It is extremely ironic and revealing that many of the same American forces/voices that are on the brink of hysteria about the Israeli proposals — who LOVE the Israeli Supreme Court and are outraged at any suggestion for changing it — are the same people who aggressively advocate major changes in the US Supreme Court. They advocate, among other things, increasing the number of justices; imposing term limits thereon; limiting the US Court’s jurisdiction; eliminating its judicially-invented “Major Questions Doctrine”, which the court uses to curtail or invalidate federal agency decisions; overturning or evading important Supreme Court decisions on abortion, guns, voting rights, or affirmative action; eliminating by legislative fiat the “shadow docket” by which the court manages — some would say manipulates — its caseload, etc.
The blatant inconsistency of those who fiercely advocate these conflicting positions should not be overlooked. All of which suggests that the underlying motivation in this debate is partisan and ideological advantage, not a genuine concern for democracy or independence of the judiciary.