Steven Frank

‘Say It Ain’t So,’ Matti, Yossi and Daniel

For those of you unacquainted with the title of this article, it comes from the infamous 1919 Black Sox scandal where the Chicago White Sox were accused of throwing the World Series and a young fan approached White Sox slugger “Shoeless Joe” Jackson and pleaded “say it ain’t so Joe.”

I ask the same question of distinguished pro-Israel advocates Matti Friedman, Yossi Klein Halevi, and Daniel Gordis. Recently, they penned a joint “open letter to “Israel’s friends in North America” regarding the controversial proposed judicial reform movement in Israel which will rein in what some consider to be an out-of-control Supreme Court. The trio wrote that “Israel’s government is moving to eviscerate the independence of our judiciary and remake the country’s democratic identity.” They argued to their Jewish friends in America that “when an Israeli government strays beyond what your commitments to liberal democracy can abide, you have both the right and the responsibility to speak up.”

It should be underscored that this trio, as they acknowledged in their letter, are not “alarmists.” In fact, these three writers have long been the go-to guys for pro-Israel centrist advocates. They are brilliant writers, journalists, scholars and honorable men. Whether the subject has been the Palestinian conflict, the occupation, matters of religious affairs, or relations with diaspora Jews, these three have never taken an anti-Israel or anti-Zionist stance. While they have never hesitated to criticize certain actions taken by Israeli governments, they have always provided the necessary background and context to assist readers in understanding what the government is doing.

Not this time. These are smart guys. They know that the Israeli legal system actually undermines democracy and is in dire need of reform. Contrary to the trio’s unsupported assertion that “no serious legal figure in Israel believes * * * that the plan merely is an adjustment that would align Israel more closely with other democracies,” there are many such figures who support this view. For example, see this article by a lawyer and fellow at the Kohelet Policy Forum in Jerusalem for a fuller discussion of this issue. See also Michal Cotler-Wunsh’s insightful post featured in this paper.

In brief, the Israeli Supreme Court is out-of-control. It has no concept of “justiciability” or what kind of cases can be brought before the Court. As a result, the Court can rule on anything including how the military should conduct military operations in the middle of a war in real time. Likewise, the Israeli Supreme Court feels free to rule on what in this country are called “political questions,” matters our founders deemed best left to the Executive and Legislative Branches of government. Hearing these kind of cases in the United States Supreme Court would be unthinkable. The Israeli Supreme Court also has no notion of “standing,” or who has enough of a real stake in a case to bring a lawsuit so anyone can bring a lawsuit about anything whether it actually affects them or not. Again, the United States Supreme Court refuses to issue mere “advisory” opinions such as this.

At the heart of the matter is the fact that Israel has no Constitution or Administrative Procedure Act to provide legal standards by which legislation or government action can be judged by its Supreme Court. As a result, the Court relies for its standard upon the ambiguous notion of “reasonableness” – – in short, whatever its judges think is a good idea. Imagine how Americans would react if our Supreme Court opinions depended on what Justice Clarence Thomas or Samuel Alito thought was a good idea.

Let’s not overlook that Israeli Supreme Court judges participate in the selection of who sits on the Court and have a practical veto power over the selection process. Of course, in the United States, it is the people, through their elected representatives, the President and the Senate, who select Supreme Court justices. Again, Justices Thomas and Alito don’t get to pick like-minded judges to be their colleagues.

In fact, our highly-regarded writers of the open letter concede that “a constructive national discussion on legal reform is not only necessary but overdue.” They just don’t like this particular reform at this particular time. And that brings us to the question of why they are authoring such a letter in the first place? And the answer, as in most cases, lies in politics. Just as in the United States where Democrats generally applaud the actions of Democratic leaders and vehemently oppose Republican proposals, unfortunately, politics also largely underlies the brouhaha behind the Israeli judicial reform movement. Those who support Prime Minister Netanyahu mostly favor the reforms and those who oppose (or more often despise) the Prime Minister hysterically call the proposed reforms “the end of democracy in Israel.”

What is odd is that I never considered the remarkable trio of open letter writers to be particularly political or rabidly anti-Netanyahu. And yet their letter goes out of its way to make clear that a large part of its reason for being is because of “who is behind this initiative.” They contend that “a prime minister currently on trial for corruption, and who has appointed ministers with criminal records, is claiming legitimacy to overturn the legal system.” Sad as I am to say it, I fear that the trio’s motive in writing the letter was, at least in part, political.

It should also be noted that the judicial reform movement is not just about traditional left/right politics. It also represents an historic effort to transform the judicial system into a more diverse body more in line with present-day Israeli demography. Traditionally, the Israeli Supreme Court has been dominated by liberal Ashkenazi Jews (those from Central Europe). The proposed reform is partly designed to provide more representation on the Court to more conservative Mizrachi Jews (those of Middle Eastern ancestry) who now make up a majority of Israelis. Our trio of high-profile writers (all of whom are of Ashkenazi descent) fail to mention this critical aspect of the judicial reform movement.

Finally, the fact that this distinguished trio of writers for the very first time in their decades of writing about Israel have taken this occasion to turn to North American Jews to intervene directly in Israel’s internal affairs is more than astonishing and somewhat dangerous. They did not do so regarding the Palestinian conflict, the occupation, the wars in Gaza or the heinous intifada. Most incredibly, they do not call upon American Jews to weigh in on matters that most directly affect America Jews, such as religious matters like the law of return, marriage, conversion, or praying at the Western Wall. If any issues merit an open letter to “friends in North America,” it is these matters.

By inviting their friends in North America to speak out uniquely on this issue, the trio of prominent writers has opened a Pandora’s box over which they have no control. Why this issue alone? Why not other matters like what law should govern residents of the West Bank (military or civilian)? Whether and when residents of Gaza should be allowed into Israel to work? How proportional Israel’s response to rockets fired from Gaza into Israel should be? It is because the trio think that THIS issue is the most important matter facing Israel and American Jews. But who gave them the right to decide which issue requires the immediate and direct intervention of the American Jewish Community? Do our trio of Israeli writers really want to unleash their North American friends to have such a prominent voice in Israel’s internal affairs? Today it is judicial reform. Tomorrow it may be the necessity of a separation wall to protect Israelis from terrorism. Are our distinguished trio inviting American Jews to serve as the ultimate Supreme Court for Israel?

The next time Jeremy Ben Ami of the anti-Israel J Street organization holds up the trio’s open letter as evidence that “Israel is no longer a democracy,” will this venerable group have second thoughts about penning it? These eminent writers used to be my go-to guys for anything Israel. Today, not so much.

About the Author
Steve Frank is retired after a 30-year career as an appellate lawyer with the U.S. Department of Justice in Washington, D.C. His writings on Israel, the law and architecture have appeared in numerous publications including the Washington Post, the Chicago Tribune, the Baltimore Sun, the Jerusalem Post, the Jewish News Syndicate and Moment magazine.