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| Senator Schumer meets with Prime Minister Netanyahu on February 23rd (JTA) |
Tens of thousands of Israelis on Saturday protested their far-right government’s plans to overhaul the legal system, three days after parliament advanced a bill that would enable lawmakers to overturn a Supreme Court decision with a simple majority.
I can easily understand the anger these protests reflect. A lot of people feel threatened. They fear losing their personal rights and the rights of protected minorities like the LGBTQ+ community. They fear the establishment of a Charedi based theocracy. They fear Israel becoming the Apartheid state its enemies keep accusing it of being.
And then there is the collateral damage of judicial reform hurting the economy. For example some tech industry businesses have threatened to move to a foreign country) In fact the value of the Shekel has been reduced to levels not seen in years.
Perhaps most of all there is a palpable hatred of Netanyahu believing him to be a self serving megalomaniac whose only interest is staying out of prison and retaining power at the expense of the Israeli people. In other words - the Israeli incarnation of Donald Trump.
I do not believe Israel will become a theocracy or an Apartheid state. Despite the cries to that effect by leftist media like Ha’aretz.
Yes, there is the possibility that there will be a little bit more religion in Israel. But not anything that will force undue hardship upon secular Israelis. Nor will Israel become anywhere near an Apartheid state even if claims to East Jerusalem and the Kotel become written into law (If they aren't already).
And if settlement activity is increased. I’m not sure how adversely that would affect Israel’s relationship with the US. That was indicated by a recent JTA article about a delegation led by Senate Majority leader Chuck Schumer and minority leader Mitch McConnell:
This delegation was solidly aligned with AIPAC’s traditional pro-Israel positions, and in interviews with the Times of Israel, two members of he delegation said the proposed judiciary reforms did not trouble them…
“At the end of the day, the changes that are made or not made, I still think that Israel is a very strong democracy, the only democracy in the Middle East, and I think our relationship continues to get stronger,” said Rep. Juan Vargas, a California Democrat who is among the closest in his caucus to AIPAC. Agreed Texas Republican Rep. Randy Weber: Netanyahu is “going to get this done.”
All of which might be summed up in the the following question: Will Israel remain a strong democracy? Or will t become a theocracy like Iran where secular Jews will be subject to stoning if they switch on a light on Shabbos?
I understand these concerns. But it is equally clear to me that the current power the Supreme Court has arrogated to itself via its long term president, Aharon Barak, is as undemocratic as would be if it is reformed as presented in a bill submitted to the Knesset by the new far right government.
To leave things as they are is as undemocratic as it will be to change things as drastically as the current government is trying to do. It is troubling to me that both side do not understand this.
Reading the left wing media like Ha’aretz - you would conclude that Israel is on the verge of destruction by radical far right government led by Netanyahu - a self serving criminal.
On the other hand reading right wing media like the Jewish Press, you would conclude that Israel is on the verge of ushering in the Messiah.
Both of these descriptions are false if not outright delusional. Blinded by a bias that has characterized their reportage as far back as I can remember.
To understand why the current power of Israel’s Supreme Court is the antithesis of a democracy, one should carefully read Jonathan Rosenblum’s analysis in his 3rdcolumn in a row on the subject. Here is some of what he said this time:
Aharon Barak is, by common agreement, a brilliant man. He is not, however, a modest one. As Judge Robert Bork once observed, “He establishes a world record for judicial hubris.”
Barak believes that Israel would be as “democratic” if he, or trusted lieutenants, made every major decision facing Israeli society. For democracy, in his view, is the advancement of certain human rights no less than it is a system of lawmaking by representatives of the people who stand for election at regular intervals…
Barak (and his successors) typically treated statutes enacted by the Knesset as little more than the “first drafts that the Court is free to rewrite,” adding provisions not found and removing explicit ones…
(Barak believes that the) judge’s task is to “bridge the gap between law and society” and to ensure that the law fits harmoniously with the “spirit or values of the legal system as a whole,”
Much of the greatest damage in history has been done by those who were convinced that they were smarter than just about anyone else, and, in many cases, the damage has been even greater when the person or persons in question were, in fact, almost as smart as they thought they were…
In short, the High Court judges are not bound by the law, in a positivist sense, but also must determine what is right or just. Whatever the nature of the “secret spice” for doing so, it lies in the realm of the judge’s subjective opinions.
Chaim Herzog, former president and father of Israel’s current president, wrote in his autobiography, “In a democracy, according to Barak, courts are placed above the government. In my humble opinion, this approach endangers the very basis of democracy.”
I think that’s right - and is exactly what needs reform. Unlike the US Supreme Court that looks to a constitution to decide whether a law is in concert with its precepts, Israel has no such document. Instead it has something called ‘basic laws’ which iare basically made up by a left thinking elite. That makes the current political situation in Israel anything but a democracy. I don’t think there is any other way to see it.
The only way to restore Israel’s claim to being a democracy is to reduce the power Israel’s Surpeme Court has arrogated to itself. But at the same time not to destroy it altogether by giving too much power to the Israel’s legislature – the Knesset.
The first thing the Knesset must do is take away its exclusive control over who will fill vacancies. Instead the power to choose who will fill vacancies should be given to elected officials - similar to how they are chosen in the US (by the President and vetted by the Senate.)
Secondly I see nothing inherently undemocratic with a 2/3 majority override of a Supreme Court decision. Since Israel is more or less equally divided by the right and left a 2/3 majority would reflect more of an overall consensus by both sides of the political aisle. Something that a simple majority would not.
No nation calling itse;f a democracy should give complete control to only one branch of their government. Whether it is the legislature or the judiciary. I just wish that all the protests were about that instead of simple wishing to keep things as they are. This is where Israel’s president, Isaac Herzog comes in. To put it the way Senator Schumer did:
Schumer… praised Herzog for his skills at conciliation. “You give everybody a great deal of optimism, somebody like you in this position with your talent and your ability to bring people together and listen to all sides,
If Herzog can accomplish the compromise of which he speaks (which I assume would be something along the lines I suggested) that would be the best of all possible worlds.