If the democratically elected government of Israel capitulates on judicial reform now, other than agreeing to cosmetic compromises, know that the putsch will not stop with judicial reform. Op-ed.
By Rabbi Prof. Dov Fischer, INN
I have written previously regarding the judicial-reform issues for which there is no room to compromise. That article is foundational to my legal and Judaic thinking on the matter, as I contemplate some of the compromises now floating around. For example:
1. A judiciary must be fair and balanced. The current Israeli Supreme Court is corrupt and imbalanced, and has been since Aharon Barak took off his mask and made it into a tyranny of the Left thirty years ago. Therefore, because politics is cyclical, one approach to getting a more balanced court is the American way: to allow elected governments to select the judges. That way, when Democrats and the Left are elected, their president and senate select and confirm their judges, and then the Republicans and the Right get their chance to balance it all when they win. It keeps bouncing back and forth in cycles.
If the Israeli Left now wants judicial democracy like America, that would see Israel’s judges named by the elected prime minister and approved by the elected Knesset. That is exactly the American system. Begin names judges approved by Likud. Then Rabin gets his day. Then Shamir. Then Peres. Then Bibi. Then Barak. Etc.
Leftist Israelis do not realize (nor presently care) that the American system has many flaws. To put it mildly, they are no Sanhedrin. American Leftist courts make up their own laws out of thin air, like Roe v. Wade which falsely “discovered” abortion as a Constitutional right even though everyone, including the justices who fabricated it, knew it did not actually exist in the Constitution. Eventually, the Right’s political cycle came, and a more conservative Court ultimately threw out Roe v. Wade. See how it all balanced? It took only 49 years to overturn. Nice and smooth, except for predictable death threats by the Left against the conservative justices. The only fall-out is that 63 million lives were aborted, 63 million souls snuffed out during the interim. That’s all. Truth, Justice, and the American Way.
So the American system is not so great either. The U.S. Supreme Court approved slavery (Dred Scott), separate facilities for Blacks to keep them away from racist Whites (Plessy v. Ferguson), denial of basic rights to Chinese immigrants who could not even become American citizens until 1953, mass incarcerations of innocent Japanese Americans (Korematsu), and other such. All those eventually were overturned, but only after decades of great damage inflicted on millions of victims through several generations.
If the goal is to have a fair and balanced court, then, I cannot see per se why it is any less reasonable, instead of the American system, to have Israel’s judges named by a panel comprised evenly of majority and opposition Knesset legislators. That system likewise will be pocked by significant flaws and corruptions, but all the ideas do. The key is to keep (i) judges out of corrupting the selection and approval process, (ii) attorneys out of the process, and (iii) appointed non-elected government bureaucrats out of the process.
But such a proposed compromise still is flawed. Outright Sabbath-observing Orthodox Jews with politically conservative orientations comprise half the coalition government and probably 30 percent or more of the population, based on elections. Will a system comprised evenly of the majority coalition and the opposition end up naming, say, 5 religiously Orthodox and politically conservative judges, or so, among the 15 to be black-robed? I doubt it. In today’s constellation, Likud is the strong party in the majority, and I don’t see them putting forth more than one or two token “politely nuanced” Orthodox Jews as judges. Sephardim will continue to be under-represented. So that compromise is not so great. Also, what if the majority reflects 55% of voter support, and the opposition 35% and the Arabs who want to throw the Jews out of Israel 10 percent? So how does a compromise that seats equal numbers of the 55 percent majority and the 35 percent opposition on the judicial selection committee come out as a fair deal?
And there is another subtle problem with such a compromise. In America, for example, the elected majority in power and the opposition line up predictably: one side is left/ liberal/ progressive. The other side is right/ conservative. So a system that would assign equal weight to both sides has some rationale.
But in Israel the coalitions and oppositions themselves are unpredictable. It is not as simple as left versus right. It could end up, for example, that both the majority and the opposition are anti-religious. The Oslo government crafted its majority by bribing a few crooks elected on Raful Eitan’s right-wing list. The most recent government had Bennett and Shaked, who were supposedly right wing (“Yamina”), Sa’ar and Elkin and those characters who were supposedly 100 percent Likud just-not-Bibi, Meretz and Labor who represented the interests of Karl Marx, Lapid who represented the interests of Lapid, Gantz who just wants to be prime minister with whoever will let him have it, Liberman who represents the interests of Russian and Ukrainian non-Jews seeking Israeli hand-outs en route to settling in Europe, and Arabs who align with the Muslim Brotherhood whose theme basically is “itbakh al Yahud” (“Slaughter the Jews”). Yet other governing coalitions have formed around other issues. So it is hard to see how such a compromise would make sense in the long run.
Maybe the American system is better. Or maybe not. It’s a puzzlement. But one thing is clear: it is corrupt (i) to have judges naming the other judges and (ii) to have attorneys, who are the people who practice before the judges, naming judges, and (iii) to have appointed non-elected bureaucrats in the process.
2. The “Override” issue needs to be figured out. Sometimes a Knesset majority can pass really bad stuff. Oslo. Etc. If the Court is leftist, then of course there can be no justice, and so there almost never is in Israel. So corrupt Left courts will rule that Oslo is OK, and the uprooting of Gush Katif is OK, and preemptively arresting and imprisoning kids lawfully protesting that catastrophe is OK, and Arabs who build illegally in the Negev and Galilee and Area C can keep doing it, and a house that terrorists use for shooting at Jews needs to be kept standing, and a kid can be sentenced to life imprisonment after being tortured for weeks by a Shin Bet that uses Spanish Inquisition and Stalinist techniques, and houses that belong to Jews who rented them to Arab tenants cannot be recovered despite documented ownership, and an unelected prime minister can hand over Israel’s territorial waters and natural gas resources to Hezbollah a few days before that three-time loser (or more) gets booted out of office.
So there needs to be a way to override a corrupt court. On the other hand, there does need to be some kind of check on a corrupt Knesset. I have recommended that a small “Blue Ribbon Committee” of leading American legal scholars whose world views mirror the viewpoint of the current democratically elected Knesset be named to advise and counsel. I offered Orthodox Jewish names like former American Attorney-General Michael Mukasey and American Constitutional scholar Nathan Lewin — both of whom have published strong opinions that Israel’s judicial system needs significant reform along the lines of what the current Israeli government is proposing — and I would add non-Jewish names like William Barr, Prof. Jonathan Turley, Prof. John Yoo, and some others.
On one hand, it is repugnant to me that an independent Israel would even contemplate entertaining advice from non-Israelis. Absolutely repugnant. However, American leftist money, primarily leftist American Jewish and NJPJ (non-Jewish pseudo-Jews) money, is financing the anti-government actions, and Lapid and his despicable associates have made the strategic decision to export to America their attempt at a putsch in the streets against the democratically elected Israeli government. So they have the New York Times and Washington Post fighting Israel, and they have recruited the reform Jews and reform pseudo-Jews who are not even Jews, and the “conservative Jews” to attack Israel from America.
At the end of the day, of course, these American Jews and NJPJ’s who were born to non-Jewish mothers and never converted properly, and the Thomas Friedmans and all the others do not matter. It is perfectly fine for Israel’s government to push forward and implement judicial reform while ignoring all the noise from America as static. But, for those who would like to play the game to gain added legitimacy for what is legitimate anyway, there is that option of bringing in that “Blue Ribbon Committee” for advice and counsel. Then, when people scream that judicial reform is the “death of democracy,” the response is that the judicial reform has the seal of approval from a committee of truly respected American legal scholars.
3. But here’s the new problem — and it is big: Although there can be areas of compromise, there now has unfolded something far more serious than the question of judicial reform. If the democratically elected government of Israel capitulates on judicial reform now, other than agreeing to cosmetic compromises and maybe fine-tuning the “Override” proposals, but not much else that must not be compromised, know that the putsch will not stop with judicial reform. Lapid and Gantz will bring 100,000 Leftists into Tel Aviv every Saturday night to oppose efforts to clean up the corrupted Law of Return. Then they will bring 100,000 to stop Jews from building in Judea and Samaria. They will bring 100,000 out to the streets for marriages in Utah and for public transportation on Shabbat and for desecration at the Western Wall. George Soros and the big donors to “reform Judaism” and the other Leftist Jewish and Pseudo-Jewish groups have endless money to throw around. It really will be the death of democracy.
So that now is the bigger problem. It no longer is only about judicial reform but about whether a head of government can fly to Italy, to Germany, or to some other Axis Power from WWII without his car being blocked en route to the airport. It is about whether the IDF can be manipulated into a Bolshevik force to take the government by coup d’etat if some generals and reservists do not like the elected coalition and demand marriages in Utah. So they now have forced the Government and its supporters to resist and be very wary of making any compromises because, if the Government blinks first here, the deluge will follow. It must stop here, or it never will end.
But what of all those soldiers and air force pilots who say they won’t serve if there is judicial reform? Let it be clear. When Saddam Hussein’s successor is raining bombs on their favorite cafes on Dizengoff and when Hezbollah is firing missiles at their grandparents’ homes and mothers’ homes and wives’ homes and children’s homes, they all will be in their tanks and fighter bombers like everyone else.
And what of the elite wealthy Israelis who threatened to take their money out of the country? The two major banks that just failed have taken the air out of those tires. Netanyahu has offered to help them meet financial obligations.
And what of all the Israelis threatening to leave Israel for good if judicial reform is passed? When Donald Trump was elected president, there was a long list of famous American leftist celebrities who swore publicly that they would move to Canada the day he took office. They still are in the United States. Americans still cannot get rid of them.
The Rabbi bats another one… out of the park!