Rabbi Prof. Dov Fischer
Rabbi Prof. Dov FischerCourtesy
Eighty thousand Leftist-Secular demonstrators in Tel Aviv, many waving PLO flags. How about more than two million, three hundred and sixty thousand — 2,360,000 — Right-Wing, Religious demonstrators throughout Israel on Election Day? Remember these numbers?

· Likud: 1,115,336

· Religious Zionism: 516,470

· Shas: 392,964

· United Torah Judaism: 280,194

· Habayit Hayehudi: 56,775

If you include other right-wing and religious wasted votes for even smaller parties, you are at more than two and a half million.

The Left’s attacks on proposed reforms to Israel’s warped and sometimes outright corrupt Supreme Court institution border on the demagogic.

Israel is not the United States, and hopefully never will be. America is not an ideal model for freedom and democracy. Truth and justice no longer universally are “the American way.” Election fraud in America is rampant, with countless mail-in ballots from addresses that do not exist, other ballots from people who no longer live at the addresses that do exist, and the highly prized voter constituency comprised of the dead and buried. American “ballot harvesting” sees people walk into other people’s homes and stand over them, coercing them into filling out their mail ballots a certain way, and then grabbing their completed ballots and dropping them off in unattended public boxes. “Election Day” goes on for a month or more in some states, so people vote long before the politicians debate or even disclose parts of their platforms or advertise.

Israel’s elections are indescribably more honest and democratic than America’s. Besides, with five national elections in three and a half years, Israelis are so much more experienced than Americans in how to vote democratically. . . .

Most European democracies differ from America’s model for governance and jurisprudence. America, for example, separates religion from state. By contrast, the British monarch is Supreme Governor of the Church of England. The Archbishop of Canterbury is designated by the reigning monarch on the advice of the prime minister. The General Synod of the Church of England is the legislative body for the church, and its measures must be approved by Parliament. Does that entanglement of religion and the state make England a “theocracy” or less “democratic” than America?

Like the U.K., Israel has a robust Western democratic structure while maintaining an historic bond with the religious identity that underlies its existence. There is a Chief Rabbinate, a ministry of religion, and other institutions that define a Jewish country. During all the years that the Israeli Left — includingpro-StalinMapam Communists, hard-line Marxist socialists, and other anti-religious extremists — ruled the nest, no serious question arose as to Israel’s core commitment to democracy, side by side with its unique Judaic cultural and religious heritage and institutions. The socialist secularist Ben-Gurion laid that groundwork.

Israel’s system is more like that of democratic England than that of America because the British guided Israel into statehood based on British institutions, language, and customs.

Democracy thrives in Israel — at times in overdrive, as evidenced by the country just having conducted five national elections in three and half years. Parties of every sort compete freely: Communists, Marxist socialists, Russian and Ukrainian anti-communists who also are anti-religion, Arabs devoted to ending Zionism, “Pirates,” a 20-year-old self-obsessed Tik Tok “influencer,” liberals, libertarians, pensioners, conservatives, religionists — Sephardic ones, Ashkenazic Haredim who are Hasidic, Ashkenazic Haredis who are anti-Hasidic (“Mitnagdim”), Modern Orthodox Religious Zionists — parties of every imaginable stripe.

Every character with a gripe can — and does — run a party. That is Israeli democracy in all its madness and robustness.

Israel’s elections are conducted differently from those of America. To Israel’s credit, only a very few discrete population sub-groups are permitted to vote by mail: primarily diplomats posted abroad, soldiers stationed away from home, sailors, women in shelters, prisoners, and patients confined to hospitals and nursing homes.

Election Day is only one day. There is no ballot harvesting. No ballot drop boxes. Sure, the system has its quirks. For example, a political party that scores 3.25 percent of the national vote gets four or more seats in Parliament, the Knesset, while a party that garners 3.24 percent or less gets none. Jim Crow? Anti-democratic?

Through each and every of the recent five national elections of April 19, 2019; September 17, 2019; March 2, 2020; March 23, 2021; and November 1, 2022, an alliance of politically conservative and religious Jewish parties repeatedly has scored solid democratic vote pluralities over alternative slates of Jewish leftists, liberals, and secularists.

In the first one, that right-religious alliance won 60 seats and barely lost out on seven or so additional seats because one religious nationalist party (Naftali Bennett’s Yamin Chadash – New Right) accrued 3.22 percent of the vote, just beneath the 3.25 percent threshold needed to qualify for Knesset representation, and another (Moshe Feiglin’s Zehut – Identity) scored 2.74 percent. Arab parties won four seats, and the remaining Jewish parties left of center won 56 seats.

In the second of the five elections, the right-religious parties scored 55 seats, and the left-secular Jewish parties scored 52.

In the third, the right-religious alliance scored 58, and the left-secular Jewish parties scored 47. In the fourth, the Jewish results were similar yet again (59 for the Likud-religious alliance, and 51 for the left-liberal-secular Jewish slates), but this time the Left brought in four extra seats from the Arab Ra’am Party, and Naftali Bennett’s Yemina (literally “Right Wing”) party decided amid post-election negotiations to switch sides in return for Bennett being designated prime minister in exchange for trading in his seven seats. (Bennett and his lieutenant, Ayelet Shaked, faced a resultant uprising from their conservative voters, and their party now has dissipated.)

This most recent fifth round again resulted in a solid win for the right-religious parties: 64 for them versus 46 for the Jewish left-secular side.

Again, look at those numbers evidencing how the religious-right has beaten the Jewish secular-left five in a row:

#1: 60+ to 56

#2: 55-52

#3: 58-47

#4: 59-51

#5: 64-46

Israel’s Jewish voters democratically have opted repeatedly for a distinctly religious-nationalist course away from the secular-left direction that preceded it. In each campaign, the Likud side placed court reform before the voters as a major campaign issue — and promise. In a prior tyrannical political coup,

Former Chief Justice Aharon Barak’s Supreme Court unilaterally seized power from the legislature elected by the people. In Barak’s leftist regime, whatever would seem “reasonable” to his small coterie of justices became law autocratically without voter participation in the process, superseding the popularly elected Knesset.

So it was legal to tear down and expel 8,600 Jews from Gush Katif and to tear down Netiv HaAvot in Gush Etzion but not to remove Bedouin from Jewish land on which they illegally built in the Negev. Moreover, six thousand were arrested without cause for demonstrating peacefully against the Gush Katif catastrophe, and the Supreme Court did not protect the rights of those incarcerated innocents, not even the innocent children swept up in the arrests.

Or consider the way the Supreme Court’s leftist justices consistently have ruled on behalf of illegal immigrants, supporting them without any pretense of following law objectively. Or consider how exercised Aharon Barak is now regarding Communications Minister Shlomo Karhi’s plan to defund the politically biased leftist public broadcaster, Kan 11 News, but the same Barak was quite comfortable shutting down Arutz Sheva radio.

This is outrageous. He has been idolized for years by the media because he is an extreme leftist. If he were right-wing, there would be 80,000 in Tel Aviv with PLO flags demanding he be sacked.

There is something very unethical in the Israeli Supreme Court. Is it not remarkable that Supreme Court Chief Justice Esther Hayut sat in judgment on cases involving companies that her husband represents? How did she get away with that? And that she held a press confreence to protest the proposed reforms, when she is not supposed to express opinions publicly other than those involving verdicts?

My lifelong success as an American attorney and law professor was assured early-on when two lines on my legal resumé were achieved: (i) Chief Articles Editor of Law Review and (ii) federal appeals court law clerk in the United States Court of Appeals for the Sixth Circuit. That is how the legal system works.

Judicial law clerkships are incredibly competitive, almost impossible to get. But if you get one, your career’s success is assured for life. I never again had to worry about getting hired to practice at a great law firm or to teach at a law school. For attorneys, there is no greater ticket to success for life than to clerk in the Supreme Court.

So let’s talk ethics: As Kalman Liebskind writes in Maariv, Aharon Barak accepted as his law clerks the sons of former Supreme Court judge Yitzchak Zamir and of Meir Shamgar, who was Supreme Court chief justice from 1983-1995? Aharon Barak’s daughter clerked for Supreme Court judge Theodore Or, Barak’s son clerked for Supreme Court Judge Dorit Beinish, who succeeded Barak as Chief Justice; and another daughter clerked for Supreme Court Judge Ayala Procaccia. Supreme Court Judge Dalia Dorner’s son clerked for Supreme Court Judge Shlomo Levin. Procaccia’s son clerked for Dorner.

If this is not corrupt, then let’s just agree that they do it differently in the Free World.

So it is not surprising that Israel’s Supreme Court remarkably empowers its own sitting justices to veto new justices’ nominations. The Court has been their personal plaything. Those blocking justices never were elected by the voters in the first place; yet they block others selected by the voters’ elected representatives.

Maybe candidates should consider improving their chances for acceptance by promising panel members to retain their kids as law clerks. Moreover, that same panel on appointments includes attorneys who practice before those justices. The conflict is obvious. To the degree it matters, American democracy would not tolerate it. In the United States, the Left would never abide a situation under which John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett could veto any future justice. In the U.S., the popularly elected President submits judicial nominations to the popularly elected Senate. Thus, the people’s elected representatives exercise complete control, not an unelected self-perpetuating autocratic judicial panel of self-interested leftist insiders.

Israel is built on the British model of democracy that has no Constitution but relies instead on Parliament to make laws. The Supreme Court in the United Kingdom has no power to negate legislation enacted by Parliament. They evaluate appeals and then offer their non-binding suggestions and recommendations to Parliament.

Under the proposed reforms, the Israeli Supreme Court still will hear appeals. They even still will have the power by super-majority to strike down laws. The Knesset will be empowered by an absolute majority of Parliament to override Supreme Court opinions that are not handed down by super-majority — and the democratic check on the Knesset are the voters whom they will face afterward. That is no less rooted in democratic values than America’s Supreme Court model that, over the years, inter alia has upheld slavery (Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)), protected racism against Chinese residents (Lum v. Rice, 275 U.S. 78 (1927)), and approved mass incarceration of American citizens of Japanese descent (Korematsu v. United States, 323 U.S. 214 (1944)).

There is nothing particularly outlier about Israel’s proposed reforms. The hysterical protests against those reforms are demagogic and anti-democratic. The votes of 2,360,000 outweigh the chants of 80,000 sore losers. It is shameful that five consecutive Israeli election mandates in under four years for a departure from left-liberal-socialism are not enough to deter the enemies of a conservative-religious direction from defaming Israeli democracy by maligning her decency.

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