The rule of law would be a good idea. Law should govern a nation, as opposed to arbitrary decisions of individual government officials. For the moment, though, there is only power; the people that have it, and the things they do with it.
In September 2015, Prime Minister Binyamin Netanyahu addressed a critical threat to Israeli democracy. He said, “our appointments process is harsh, prolonged, harmful, and without a doubt worthy of review.” He made the statement after Public Security Minister Gilad Erdan announced that he was cancelling Brigadier-General Gal Hirsch’s appointment as inspector-general of Israeli Police due to the refusal of Attorney-General Yehuda Weinstein to approve it in a timely manner.
A government that lacks the power to appoint lacks the power to govern. Without the power to appoint public officials, the government lacks the ability to ensure that public officials are loyal to the government, and would faithfully execute the policies of the government.
Attorney-General Weinstein has now blocked the government’s appointments to Israel’s two most powerful national security posts.
In 2011, he forced the government to cancel Major-General Yoav Galant’s appointment to serve as IDF Chief of General Staff. Weinstein forced the government to cancel Galant’s appointment by refusing to defend it before the Supreme Court of Israel when challenged by an environmental group. Weinstein intimated that there was no legal basis for his position, but took the position based on his legally irrelevant “ethical” concerns.
Weinstein undermined government authority by forcing the government to abandon Galant and Hirsch. He thereby notified Israel’s high-ranking security officers that they should not be beholden to lawful orders they receive from the government. His opinion is the only opinion that matters. He has thus declared himself as their leader. This is corrupt and it is a perversion of democratic norms.
The government is seeking a replacement for Weinstein, who is due to retire at the end of the year.
The Senior Appointments Committee is empowered to confirm senior civil service appointments. A retired Supreme Court justice chairs the committee. Israel established it about 18 years ago, but it has arrogated more and more power to dictate appointments to the government. The committee now forces its will on elected leaders. Today, the government does not bother submitting the names of jurists that publicly oppose the legal fraternity’s seizure of government power. The committee would find an excuse to reject such candidates.
Netanyahu has indicated that he would like to appoint Cabinet Secretary, and former IDF Chief Military Advocate General, Major-General Avichai Mandelblit to be Weinstein’s successor. Weinstein has indicated his opposition to Mandelblit’s appointment.
Weinstein made it possible for a foreign-financed NGO to petition the Supreme Court to reject Mandelblit’s appointment, if the government were to appoint him. Weinstein also cleared a path for himself to refuse to defend Mandelblit’s appointment on “ethical” grounds, just as he did for Galant’s appointment.
Weinstein’s repeated terminations of appointments by the government are part of an agenda that prevents the government from determining national policy. He acts without legal foundation to prevent the government from appointing senior officials, and prevents the government from adopting policies that he does not like.
Weinstein has repeatedly blocked the government from implementing sentencing guidelines, including dictating minimum prison terms for rock-throwers. Many governments in the West enact sentencing guidelines for a variety of crimes, and there is no binding international statute barring the Israeli government from dictating minimum sentences for rock-throwers. Nevertheless, Weinstein opposes minimum sentences for rock-throwers. Therefore, the government is unable to deal with a security issue that endangers public security, and imperils Israel’s sovereignty over Jerusalem.
The government cannot ignore Attorney-General Weinstein. His opposition has paved the way for an EU-financed NGO to petition the Supreme Court. Since he opposes the policy, he will refuse to defend it, and the Supreme Court rules Israel. The President of the Supreme Court is the de facto Supreme Leader of Israel.
Israel faces daunting threats, but has the means to handle them; however, the unelected attorney-general and justices of the Supreme Court can subvert government authority. As such, the means to handle the threats will never be used.
The Supreme Court of Israel and the Supreme Court of the United States are like the Guardian Council of Iran. They are super-legislative bodies of purported scholars, in ceremonial black robes, imaginatively applying ancient doctrines while “conscious of the present needs and the issues of the day.” Deciding and discovering what is mandatory and what is forbidden, as the shifting currents of politics dictate. The main difference is that the ayatollahs take their Sharia more seriously than the justices take constitutional law.
The Founders that wrote the US Constitution that did not enfranchise women or abolish slavery, the US Supreme Court ruled that somehow they inscribed a constitutional right to gay marriage in the Constitution, which everybody has overlooked for 230 years.
Obamacare mandated supposedly free citizens to purchase approved health insurance or face the wrath of the US government. The individual mandate is an intrusion into personal liberty. The Supreme Court ruled that it is taxation, and therefore constitutional.
The US Supreme Court’s rulings on marriage and healthcare indicate nothing about the law or the Constitution, but rather indicative of the justices. That is the problem.
Until the 1960s, Christian prayers were offered in government schools, then some judges decided that the Constitution, which had hitherto meant one thing for nearly two centuries, now meant something else entirely.
In the Establishment Clause of the Constitution, the Founders placed a limitation upon Congress, preventing it from establishing a state religion for the nation. They meant that they did not want Congress to establish a Church of America, have President Washington as Supreme Governor of the Church, and the Archbishop of Virginia sitting in the United States Senate, as today Queen Elizabeth is Supreme Governor of the Church of England and the Archbishop of Canterbury sits in the House of Lords. Post-modern judges have ruled that it now means no exposure to “the practice of religion” in the “public square.” By this new definition, religion is nothing more than singing and sermonizing.
In the end, people that have power often use constitutions to reflect changes in fashion. Once homosexuals were alienated, their lives were lived discreetly, their stories untold in mainstream culture. Now, they are cool and portrayed everywhere.
Today, observant Christians and Jews are the aliens in the West. They are enjoined to live their lives discreetly, away from “the public square,” except when they are the designated hypocritical child-molester in some drama or movie.
This is not about constitutions or the rule of law. It is about fashion and power, as it has always been. A theoretical commitment to “diversity,” “tolerance” and “equal protection” is unsustainable in practice. Equality before the law matters less and less, while membership of privileged societal groups matters more and more.
Were the same-sex marriage decision by the US Supreme Court merely a judicial ruling, Barack Obama would not have lit up the White House in LGBT rainbow colors. It is “the people’s house” and half the people did not agree with the ruling. Nevertheless, he saw this not as a mere judicial ruling but as an ideological victory, and celebrated it as such. He thereby informed all that this shift was an official one, backed by the state and state power, and it will not stop there.
That is what currently passes for the rule of law: power politics; tribal politics. It will surely be seen one day when a Muslim bakery is asked to bake a gay cake.