Israel’s Left Wing Judiciary - End of an Era?

Israel’s new Justice Minister Yariv Levin

In all honesty, I admit not knowing all that much about Israel’s judicial system  I do however recall being quite upset at some of their rulings that violated religious sensibilities. It is also quite perplexing when Israel’s Supreme Court declares a law passed by the K’nesset to be unconstitutional -  since Israel has no  constitution. It takes a lot of hubris , in my view for a court to assume the validity of documents that are not in existence.

My impression of Israel’s judiciary is that it is a decidedly left wing body - and has been for decades! A body that places more importance on humanistic values than it does on religious values. I have no issue with the Bein Adam L’Chavero underpinnings of humanism. That is a very important Mitzvah that is often overlooked among some of the more devout among us that focuses primairly on Mitzvos Bein Adam L’Makom. 

The problem is when the latter is always sacrificed for the former as is the case with humanism. Ignoring the dictates of God in favor of the whims of man is basically an anti religious philosophy. 

Which as I see it - is exactly the philosophy of Israel’s court system. 

This why for example the court declared unconstitutional a law a few years ago that outlawed having a Gay Pride Parade in Jerusalem. The court sided with the values of humanism and against religious values. Allowing pride to be openly and loudly expressed by people with the proclivity for sexual intimacy that the Torah considers a grave sin - in the holiest city in the world.  

Let me be clear and  reiterate my views to those unfamiliar with them.  It is one thing to be understanding and accepting to people that are gay. And to treat them with the dignity that should be accorded to all people created in the image of God regardless of  who they are attracted to sexually. Mistreating a gay person because of a natural inclination is a grave sin too. 

But being proud of that inclination is another matter. One should not be proud of a proclivity toward sinful behavior. But humanism places a higher value on  equalizing gay and straight sex in a misguided attempt to neutralize biblical values - if not reject them outright as archaic and unfair to the human condition . 

But I digress. The point here is that Israel’s left wing judiciary thinks along those lines. Hence they are antagonistic to religious values by default,  They consider allowing a gay pride parade in Jerusalem to be the moral high ground.  To put it the way Jewish Press did: 

…despite the shrinking political power of the old leftist elites that established the state of Israel 75 years ago, Justice Barak’s clique of dedicated judges continued and even increased their tyrannical hold on the country’s legal system, and its legislator and executive branches. 

Well the courts perpetual unlimited power over the Israel’s legislative body is apparently about to end. The way judges will now be chosen will not be the way they have been. Which is by the judges themselves. They will no longer be the sole body that determines who will serve in the judiciary. However, I’m not sure whether the ‘cure’ is better than the ‘disease’. As noted by JTA: 

Yariv Levin, the newly appointed justice minister, on Wednesday announced planned legislation that would severely limit the Israeli Supreme Court’s ability to review and overturn laws and pledged to increase governmental control over the appointment of judges. Under his proposal, a majority of 61 Knesset members could override Supreme Court rulings, effectively ensuring that any governing coalition could override rulings it does not like.

How does the Israeli electorate feel about the court retaining its current power? Here’s how: 

a poll conducted last month by the Israel Democracy Institute found (that) the respondents were deeply divided by their religious orientation; 15% of haredi Orthodox Jews said the court should retain that right, while 76% of secular Israelis said so. 

This is not surprising. I side with the Charedim on this one. Since there is no real constitution in Israel, it is only fair that in a democracy the majority should decide what is and isn’t fair. So if the K’nesset is oriented to a more religious perspective - as per the will of the people, it is only fair that the judiciary reflect that.

 However, even though there is no constitution in Israel, there is something to be said for judicial independence. If you emasculate judicial authority by virtue of a slim majority in the K’nesset, you end up with a tyranny of the majority over a substantial minority. So I’m not really on board with a law that would allow a simple majority to overrule the court. I would be more comfortable with something like a two thirds majority.

As far as choosing who should serve on the court, I like the American system. Candidates are chosen by the President (in Israel, the prime minister) and then vetted by congress. Obviously the ruling party has the advantage. But governments are not always ruled by the same party. Courts therefore shift between right and left orientation over time. 

This system has worked magnificently in the US for over 200 years. There is no reason it can’t work in Israel the same way. In this way the electorate has somewhat of a say in who gets chosen. Radical choices will likely get rejected by the K’nesset. As they are in the US by the Senate

That said, I am not all  that happy with a right wing judiciary that would also favor the more extreme elements of Religious Zionism. Such as approving a law that might allow expanding settlement activity deep into the West Bank.. So it is a double edged sword. However, overall I believe that ending decades long control of the judiciary by the left is a step in the right direction (no pun intended).