I am not “just” a Rav of 40-plus years. I also was Chief Articles Editor of UCLA Law Review, was a federal law clerk to the Hon. Danny J. Boggs in the United States Court of Appeals for the Sixth Circuit, was a law professor for nearly twenty years, and practiced high-stakes complex litigation for more than a decade at three of America’s most prominent law firms: Jones Day, Akin Gump, and Baker and Hostetler. So I approach this subject as an informed participant.
I do not compromise on any matter of principle ever, no matter the personal cost, but I do compromise on non-principle matters as a matter of practicality. With the Israeli Judicial Reform drama playing out absurdly, the proposed partial legislation on “reasonableness” finally has passed its first reading, and the mediocrities like Yair Lapid, Benny Gantz, Gideon Sa’ar, Avigdor Liberman, and their followers have proven utterly unwilling to negotiate soberly, preferring to feign seriousness while endeavoring to effectuate a putsch from the streets after losing five national elections in under four years. It is time to move forward and pass the core of judicial reform.
Even enemies of the proposed Judicial Reform agree that, if they cannot have outright Extreme Leftist tyranny, they want at least an “American-style” judicial system. The Biden administration, including the likes of Antony Blinken and Thomas Nides, surely would not disagree — not that they matter. Still, a fair-minded reasonable person would not go out of his way to antagonize them if a sensible approach actually would mollify them anyway. So let us break down the parts:
1. Judges Must Have No Role in Selecting Other Judges. The reason the convoluted American judicial system always has worked is that the courts get balanced cyclically. Left-Right-Left-Right. First, the elected Democrats create a mostly stacked judiciary, which is biased in the extreme to the left. Then, in time, a Republican president and senate get elected, and they mostly stack the judiciary to the right, and that bias evens things out until the next cycle when Democrats take it back. Over the decades, the American courts regularly shift from tilting left to tilting right and back again, depending on the cycle. On the one hand, that means the United States courts typically are tilted unfairly, but on the other hand the bias sorts itself out somewhat whenever the other side’s turn comes. All democracy plays out in cycles: FDR-Truman to Eisenhower to Kennedy-Johnson to Nixon-Ford to Carter to Reagan to Obama to Trump to Biden. Israel, too, after the first 30 years’ birth pangs of Marxist Leftist tyranny: Begin-Shamir to Peres to Shamir to Rabin-Peres to Netanyahu to Ehud Barak to Good Ariel Sharon to Evil Sharon-Olmert to Bibi to Lapid-Bennett to Bibi. (A few who don’t matter in the analysis have been skipped.)
A great deal of ink has been penned in Hebrew and English about how the U.S. Congress can counter-balance its Supreme Court, whether by redrafting and passing modified legislation written more carefully to satisfy the Court’s expressed concerns about Constitutionality or by launching an outright Constitutional amendment. However, no one — not even the main legal scholars — notes a more subtle and powerful check on tilted U.S. Supreme Courts: When a U.S. Supreme Court panel goes overboard, then a subsequent cycle’s Supreme Court overturns their precedent. This happened famously when the Roberts Court overturned a Leftist predecessor Court’s outrageously wrong Roe v. Wade. But most observers do not realize how often U.S. Supreme Courts overturn prior Supreme Court opinions and precedents. By Year 2018, Wikipedia had listed more than 300 — three hundred — U.S. Supreme Court decisions that later were thrown out by subsequent Supreme Court panels. Again: Three Hundred.
The absence of that American feature is the single most glaring failure of Israel’s system. Since Israel’s system began with a majority of leftist justices named by Marxists and other Socialist Leftists, and that system allowed the extreme leftist Supreme Court justices to name or veto new nominees, the Court became a 74-year self-perpetuating extreme leftist monopoly impervious to democracy’s natural Left-Right-Left-Right cycles. At its heart, that failure is the core of the whole problem: The Israeli Supreme Court was set up to be self-perpetuating to prevent its justices from being selected by the people’s elected representatives who would reflect the cyclical nature of politics. In America, the people’s elected president names the judges, and the people’s elected senate approves. That is what Israel always needed and needs: for the popularly elected prime minister to name the judges, and for the popularly elected Knesset to approve.
Not only should Supreme Court justices be kept out of the selection-and-approval process, but so should Justice Ministers and everyone else. They certainly all can be consulted, but they should have no place in voting on the selection and approval, just as they have none in America. Although America’s courts never will be dispassionately fair, it kind of works. It still results in some horribly bad opinions, like upholding slavery (Dredd Scott) and mass-incarcerating innocent loyal Japanese-Americans (Korematsu), but so will any other system. And this way, the really bad decisions do get overturned in time, which is impossible with a self-perpetuating Court. That is the first and most important change needed. Other justices must be denied any voting input at all in the selection and approval process. No compromise there.
2. Courts Must Have No Role in Selecting or Ousting Cabinet Ministers. In America, the Court cannot bar a person from office unless he violates a Constitutional rule, such as the minimum age to serve or conviction for treason. Thus, although Richard Nixon may have broken the law during Watergate (and maybe not), and Vice President Spiro Agnew engaged in all kinds of financial corruption, the Supreme Court had no power to unseat them. However, the people’s elected Congress had the power to impeach, convict, and thereby eject them. Therefore, Nixon resigned before getting ousted by Congress; so did Agnew. By contrast, Andrew Johnson, Bill Clinton, and Donald Trump stared down Congress during their impeachment ordeals, and each emerged the winner. That is how it must work in Israel, too. The Court should have no say whatsoever in who gets appointed by the elected government to what office. Rather, the people’s elected Knesset should be the only body that has the power to install or oust an Aryeh Deri as a cabinet minister, for example. That is the American system, too. No compromise there.
3. The Attorney-General Should Serve Only at the Pleasure of the Elected Prime Minister. An Attorney-General exists mostly to advise the head of government as to the law. In America, the A-G is appointed by the president and can be fired by him. When the president is succeeded, his A-G leaves with him. Although the A-G in America has great persuasive influence, it is nothing like the near-tyrannical power wielded by Israel’s Attorney-General. The present tyrannical A-G in Israel, who was appointed by Gideon Sa’ar, someone who vitriolically hates Prime Minister Netanyahu after having lost a democratic primary to him, just won’t go away. Her “opinions” are not advisory but tyrannical rule. The Israeli Attorney-General’s role should be redefined formally to mirror that of the American A-G and should serve at the prime minister’s pleasure. No compromise there.
4. Israel’s Legal Advisors Should Be Limited to Advising, Not Ruling. No legal advisor to any Israeli government official in any office should have authority to do more than provide counsel and opinion that may be accepted or rejected by the official. Unelected, appointed advisors’ opinions should not have the power of law. No compromise there.
5. Justiciability. The Court in America has no authority to hear matters pertaining to military strategy or political decisions that do not entail matters of law. Judges could not rule on whether Roosevelt could ally with Stalin in World War II or whether Harry Truman could approve the bombs over Hiroshima and Nagasaki. The same rule should be adopted in Israel — likewise as to matters of religion, as is obvious in America. It defies comprehension that an Israeli Supreme Court actually could dictate who is eligible to take a rabbinical exam. No compromise there.
6. Standing. Any plaintiff appearing before an American court must show “standing.” That means he must show how the claimed wrong harms him specifically. In America, it is not enough to sue a polluting factory because you or your group are pro-environment. You must show that the factory’s soot and filth is floating onto your personal property. A climate activist in Brooklyn cannot sue a polluter in Binghamton. Jews cannot sue anti-Semites like Kanye West or Louis Farrakhan for generally defaming Jews like them. Rather, such plaintiffs must show that the anti-Jewish comments specifically defamed the particular plaintiffs before the court. Presently any group in Israel can sue anyone else directly in the Supreme Court. That is absurd. A requirement of standing needs to be adopted in Israel. No compromise there.
7. Constitutional Supremacy. In the United States, the Supreme Court cannot overrule something in the Constitution itself. They can rule only that other things conflict with the Constitution and therefore are “unconstitutional.” Presently, Israel has several “Basic Laws” that serve in lieu of a formal Constitution. The Israeli Supreme Court should not have authority to overrule or modify any Basic Law. No compromise there.
8. The “Unreasonableness” Standard Must Be Stopped. There is no such legal standard in the American courts as “unreasonable.” Rather, courts are limited to applying legislated laws that are “on the books” and formally published judicial precedents handed down in prior cases. By contrast, a judge’s personal opinions about what is “reasonable” do not comprise law and are not accepted. Anyone who wants his personal opinions to be part of the law-making process should run for elected office. Thus, the “unreasonable” standard in Israel’s courts has to be barred for once and for all. No compromise there.
9. Lawyers Must Have No Role in Selecting New Judges. In America, when elected officials name individuals to be judges, subject to the advice and consent of the legislature, attorney bar associations publish their advisories recommending or frowning on nominees’ qualifications and suitability. Those opinions are submitted for persuasiveness but lack any mandatory authority. Indeed, it would comprise a profound conflict of interest for lawyers who will be arguing before a justice or justices to have the power to vote on their appointment or on whether they will be renewed when their terms expire. Lawyers should be barred from judicial appointment committees. No compromise there.
10. The Exception: Tweaking How to Reverse a Wrong Court Ruling. There is one and only one area of the proposed Israeli Judicial Reforms that should be open to further tweaking. It does not sit well that a 61-seat Knesset vote should be adequate to overturn a fair or even unfair Supreme Court ruling. That initial proposal can be and should be refined because, otherwise, the Court has virtually no point for existing. This is the one proposal that, if revised properly, should leave a broad consensus for Judicial Reform in Israel among fair-minded people, with the exception of the anarchists, Marxists, and demagogic political sore losers like Lapid, Gantz, Ehud Barak, Olmert, Sa’ar, and Liberman who will oppose anything and everything the new government does these next four years. So, by virtue of their proven unwillingness to negotiate fairly, they don’t matter.
And that leaves me with a proposal to break the deadlock, an idea that seems so obvious and sensible to me that I am sure no one will think of it, and no one will do it if it is suggested to them:
A “Blue Ribbon Committee” should be named by Justice Minister Yariv Levin and by Simcha Rothman, the Chairman of the Knesset Constitution, Law, and Justice Committee, to consult and offer advice to advance the Judicial Reform to its final passage. That “Blue Ribbon Committee” should be comprised of former United States Attorney-General Michael Mukasey, renowned Constitutional Law expert Nathan Lewin, and a third person the two of them select, someone truly fair and above the fray like a William Barr, a Jonathan Turley, or an Alan Dershowitz. Any final bill that has their “buy-in” will not alleviate the efforts by the Israeli Left and their demagogical Lapids, Gantzes, Sa’ars, and Libermans to effectuate a putsch in the streets. But it will take the steam out of the claim that the Judicial Reform is unreasonable and a threat to democracy, and it will win the approbation of the financial markets, the more responsible mainstream Jewish organizations, and even the Bidens, Blinkens, and Nideses who really do not matter. But it never hurts when a proposal is so fair that it is above criticism.
