David Shayne

President Biden (and Tom Friedman), look to your own house regarding democracy

In the play “1776,” South Carolina delegate John Rutledge assails John Adams and other anti-slavery New Englanders with “What’s that I smell? Floatin’ down from the North? Why, could that be the aroma of hypocrisy?” He then breaks into song decrying the hypocrisy of the Northern anti-Southern barbs by pointing out that many New England ship owners became fabulously wealthy from the slave trade and ends his song with,

“Mr. Adams, I give you a toast!

Hail Boston, hail Charleston!

Who stinketh the most?”

I thought of this exchange as I read Tom Friedman’s latest pontifications (partially in the name of President Biden) about the political crisis racking Israel at this time.

Before continuing, a disclaimer: I do not support the current Israeli governing coalition or its efforts to ram its anti-judiciary agenda down the throats of the Israeli public. I, too, am deeply concerned about Israel’s future if these laws pass as proposed, but I have always been concerned about Israel’s future for lots of reasons, one of which is its deeply flawed democratic form of government.

Moreover, the judiciary dispute is not the only or the biggest problem Israel faces. About five years ago, the current prime minister was indicted and now stands trial for several crimes, aggravating the deep political fissure in Israel’s body politic. Consequently, the country has undergone five elections in roughly four years, resulting in near draws until the last election in November of last year, when Netanyahu managed to cobble together a coalition with far-right wing extremists and religious ultra-conservatives. Israel’s political system appears to be quite dysfunctional and the situation has worsened since the current government took office last November.

So it might be understandable why Tom Friedman and other Americans including President Biden, would cluck condescendingly at Israel’s turmoil. Yet, to those Americans loudly voicing their disapproval I ask, what about America? How functional has American democracy been lately, say, for the past eight years?

As I indicated above, Israel’s democracy has serious built in flaws — the most significant of which, in my opinion is the fact that Israeli citizens never vote directly for the national representatives. Weirdly, Israelis vote for a party which, in turn, selects in advance who will get to sit in the Knesset (Israeli’s uni-cameral legislature) and who will form the Government if the party heads the ruling coalition (no party has ever won an absolute majority in Israel’s entire history). Israelis never get to vote directly for anyone who sits in the Knesset, including the prime minister.

By contrast, American citizens get to vote directly for the individual national representatives, regardless of party affiliation. Americans vote for their congressional representatives, their senators and for their president and vice president — oops, just a minute, do Americans get to vote for the president? No, not really. Yes, Americans cast ballots for the presidential ticket but those votes don’t count directly. Instead, and also weirdly, the “electoral college,” a collection of unelected persons from each state, ultimately decides who gets to be president, regardless of actually wins the popular vote.

It is due to this bizarre quirk in the American system that Donald J. Trump ascended to the presidency despite losing the popular election by a whopping 3 million votes. He promptly plunged America into era of political chaos and dysfunctionality that plagues the country to this day. Bad enough that he grossly mismanaged the country during his presidency up until November 3, 2020, in ways that are far too numerous and complex to recount here, after that date, he mounted an actual attempted insurrection to overturn the United States, culminating in a physical assault on the Capitol on January 6, 2021.

Not since Jefferson Davis and his cohorts, who plunged America into a devastating civil war, have any high-ranking government officers launched such a treasonous assault on the United States itself. And its not over. Trump is running again, despite losing the last election by more than twice the number of votes he lost his first, and stands a very reasonable chance of winning.

Moreover, unlike Israel and other European-style parliamentary democracies, it is much more difficult to neutralize or remove a head of government who has gone off the rails or become incapacitated. In the former case, the Parliament can bring down a government on a simple vote. New elections can be held anytime before the expiration of the statutory period of the government’s rule. (Like the US, that period in Israel is four years).

By contrast, living American presidents can only be removed from office by trial before the Senate following impeachment or exercise of the 25th Amendment of the Constitution — neither of which has ever happened (albeit the only president to ever resign from the office — Richard Nixon — did so because removal via impeachment and trial seemed likely). Similarly, unlike parliamentary systems, no mechanism exists to hold new elections before the expiration of a presidential term, even when an unanticipated event such as the death or incapacity of the president even if that happens in the very beginning of his or her term (which actually happened in 1841).

The Trump presidency highlighted these serious short-comings in the American system, saddling the nation with a deeply dysfunctional administration, as demonstrated by the unusually high turnover rate of top officials, including some who subsequently opposed his reelection. The rot in the American body politic does not stop with Trump. His allies populate Congress, including some very disturbing characters such as Louie Gohmert, Matt Goetz and Marjorie Taylor Green.

President Biden recently commented that Israel’s government is the most extreme since Golda Meir. To be sure, characters like Itamar Ben Gvir and Bezalel Smotrich are likewise disturbing but they don’t hold a candle in comparison to the nuttiness of some American officials such those mentioned above and extremists on the Left (e.g. the “Squad”). When it comes to extremism and crazy-bigoted politicians, Americans are no position to cast dispersions on Israeli politicians. (Which is OK since Israelis excel at doing so constantly).

As mentioned above, the current crisis in Israel revolves around the powers of the judiciary, with those on the Right claiming the courts wield too much power and those on the Left accusing the Right of attempting to neuter the courts so the current ruling coalition can ram through the Knesset all sorts of laws that will undermine Israel’s democracy. Ironically, one of the issues is who will choose future judges. Right now, the process is largely non-partisan and includes judges themselves. The proposed changes will give Knesset members a greater role, and so there is concern the courts will be more politicized.

Well, again, I must ask, what about the American system? I have spoken with a few Israelis who were shocked to learn the American courts are far more politicized than Israeli courts. All judges in America are either elected or appointed by the executives of the jurisdiction in question — federal judges are appointed by the president and approved by the Senate. American have witnessed how political the Supreme Court selection process is twice in the last eight years — first following the sudden death of Justice Antonin Scalia, when the Republican-held Senate prevented President Obama from appointing a replacement; and again after the sudden death of Justice Ruth Bader Ginsberg, when President Trump and the Republican Senate rammed through the appointment of Justice Amy Coney Barrett in near-record time, just ahead of the 2020 election. These are only recent examples of the politicization of the US Supreme Court, numerous other disturbing examples stretch all the way back to the court’s origins.

And these are exactly the kind of nightmare scenarios hundreds of thousands of Israelis are trying to prevent when they clog the streets of downtown Tel Aviv. They are protesting to prevent the institution of a judicial selection system that, probably unbeknownst to most of the demonstrators, would more closely resemble the American one.

As an Israeli-educated American lawyer, I have a somewhat unusual perspective on the events unfolding in both Israel and America. Like President Biden and Mr. Friedman, I am deeply concerned about Israel’s political future. But I am equally concerned about America’s political future, actually more so. A big part of the problem in Israel is that its leaders have kicked the can of writing a constitution down the road for too long, while America’s problem is that its constitution could use a serious overhaul, at least regarding how presidents are elected (among other issues). In his recent article, Mr. Friedman suggests that, unless Israel and America share the same democratic values, the “special relationship” between them will not endure. That, however, is a two-way street. The citizens of both countries have good reason for concern in this regard. I respectfully suggest to Mr. Friedman and President Biden that they should look to their own glass house before casting stones at others.

To conclude, and paraphrasing John Rutledge’s taunt to his critics in New England,

“Mr. Friedman, a toast:

Hail Washington, DC, Hail Jerusalem!

Who dysfunctioneth the most?”

About the Author
David Shayne is a dual citizen of the United States and Israel, he received his BA from Tel Aviv University in Political Science and his JD from the University of Oregon. He served as an attorney for the US government for 21 years, until his retirement in 2022, following which he relocated to Tel Aviv. He currently works as a senior attorney for a private company in Jerusalem, Israel.
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