Larry Gordon is editor in chief of the Five Towns Jewish Times.
It’s an amazing crisis that deals with how ordinary people who happen to be judges or members of the Knesset view the future of Israel, whether it is a Jewish state, what that means, and how they would like to shape the society in which they live.
Sitting here trying to formulate how this is ultimately going to work out is as confusing as it is frightening. And while the U.S. has interjected itself into the judiciary situation in Israel, the fact is that the Biden administration is dealing with a similar internal problem—a high court issue in the U.S. that might be worse than what is going on in Israel.
Over last weekend, two law school professors—one at Harvard and the other at San Francisco State University—called on President Biden to ignore Supreme Court decisions that he does not agree with. They referred to decisions on matters like affirmative action and abortion as decisions emanating from “a MAGA court,” and if Biden interprets these laws as unconstitutional he should just ignore them.
In other words, that would mean that Joe Biden is a king rather than just the president of the United States. These law professors are saying that it is legal and proper for the elected executive branch to determine what they feel should be law and what should not be legal or binding.
After the affirmative action decision, President Biden said, “This is not a normal court.” In the past he has articulated ideas along the lines of our constitutional rights “not being absolute.” That means that someone is whispering in his ear that as president he might or should have the prerogative to change things as he sees fit.
One thing is abundantly clear today and that is that these are not Joe Biden’s homegrown or personal ideas. They might come from the direction of George Soros or Barack Obama or perhaps even Chuck Schumer, who warned then-newly selected Supreme Court Justices Gorsuch and Kavanaugh that, “You have released the whirlwind and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.”
That was Chuck advocating violence against two Supreme Court justices. There’s no other way to interpret those words. That was shortly after the court reversed Roe v. Wade and kicked the decision on the legalization of abortion to the states.
So Biden and his cohorts in the administration are warning Israel not to do exactly what they would like to do and precisely what these two latest law school professors are advocating for.
On Monday, the Knesset toned down what has become popularly known as the “Reasonableness Standard" or the "Reasonableness Doctirne." This is a tool in Israel that has been used by Israel's Supreme Court for decades, since then Chief Justice Aharon Barak introducied it.. To make it as simple as possible, it means that if the Knesset votes a law into effect, the Supreme Court can scuttle that law if in their subjective opinion, not based on any law, the new law is unreasonable.
What this doctrine has done over all these years is place all the power of the State of Israel in the Supreme Court instead of in the hands of legislators elected by the people.
All this Knesset wanted to do is move the power of legislating back to the people where it belongs. The current governing coalition in Israel wants to do more but will most likely hold off until after the summer recess when the Knesset reconvenes in September.
Among the judiciary changes on the drawing board is doing away with this stunning policy that allows Supreme Court justices who retire to choose their own likeminded replacements. Can you just imagine the reaction if here in the U.S. Justice Clarence Thomas was going to retire and would be allowed to choose his own replacement?
This is why left-leaning Israelis have taken to the street and are disrupting daily routines in Israel’s major cities—precisely because they want the Israeli justices to be able to select their own replacements.
And this is one of those things that Joe Biden is warning Israel not to go forward with,. He would prefer if U.S. Supreme Court Judges could choose their own successors.
Also on Monday the White House expressed disappointment with the fact that the Reasonableness Standard was changed with only a slim majority in the Knesset that is just 64 of 120 votes. But that is exactly the way things work here in the U.S., and everything seems just fine. Today the Democrats have a 51–49 majority in the Senate, and Republicans have a 5-seat majority in the House of Representatives. Just about anything that gets done or voted into law is done without broad consensus and with only a slim majority.
It was important for the Netanyahu coalition to pass Monday’s legislation in the Knesset. This way perhaps the opposition will get the message that the coalition means business about setting up the judicial system in a proper fashion for a good and strong democracy.
Next on the agenda is the way in which judges are selected. The left and anti-government protesters want judges selected by 9 man committees where the three justices have the majority because two other members of the committee are from.the Bar Association which follows the justices' lead as they have to appear before them in the courts. The right wants more input in how judges are chosen and want larger representation of the elected government in the process.
When an opening occurs on the U.S. Supreme Court, it is the elected president who nominates a new justice, and then that judge has to be voted in by a majority of the Senate. This is the way justice is achieved by the will of the people.
Currently, that is not the way it gets done in Israel. For the last three or so decades, the leftist elites have dominated major decisions on the law inside Israel. This is what the current right-leaning government is determined to undo while turning the State of Israel into a true democracy.
Now with the reasonable clause diminished if not expunged from the process, several leftist groups in Israel are intent on taking the coalition government to the Supreme Court to rule on whether reasonableness is reasonable. The problem is that at this stage of the process, the matter of whether the Court can determine if a law passed by the Knesset is reasonable is now a thing of the past.
To date, the opposition in Israel—led by Yair Lapid and Benny Gantz—has refused to compromise so that an agreement can be reached with everyone learning to live together with their differences and disagreements. Negotiations that went on for three months were broken up by the two of them.
At the end of the day, from the perspective of the left, the reasonableness clause is not truly about the law or the courts. More than anything else it is about bringing down Benjamin Netanyahu and his government. So it’s not exactly about preserving democracy, which, as a result of this week’s vote, seems better served.
The country is very much divided, not unlike the U.S. today. The right wants to talk, make concessions, and reach a compromise, as they have done in the past for the good of the country. The left refuses to budge. That’s not reasonable.