
My readers know where I stand. 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. Now that the Judicial Reform drama has played out, the proposed legislation 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 sit and negotiate, preferring to effectuate a putsch from the streets after losing five national elections in under four years, I am ready to move unilaterally to the next step in my analysis.
(Unless they do negotiate.)
It is universally argued by enemies of the proposed Judicial Reform that, if they cannot have outright Aharon Barak Extreme Leftist Tyranny, they want at least an American-style judicial system. The Biden administration, including the likes of Blinken and 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 the sensible approach actually would mollify them anyway — not that they matter. So let us break down the ten parts:
1. The reason the messed-up American judicial system nevertheless always has worked is that the courts get balanced cyclically. First, the elected Democrats create a mostly stacked leftist 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, the United States courts are unfair, but on the other hand the mess sorts itself out somewhat whenever the other side’s turn comes. All democracy plays out in cycles: FDR 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 Bibi to Barak to Good Sharon to Evil Sharon-Olmert to Bibi to Lapid-Bennett to Bibi. (I skipped a few who don’t matter in the analysis.)
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 — note a more subtle and powerful check on U.S. Supreme Courts when they get out of hand: When a U.S.Supreme Court panel goes overboard, then — even though they technically are not supposed to — a subsequent cycle’s Supreme Court overturns their precedent. This recently 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 have overturned 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.
That 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 cycles. At its heart, that failure is the core of the whole problem, lying at the root of all other failures of its system: 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 the selection and approval, just as they have none in America. So, the likes of Marxist Labor governments will name some judges. Then the Begin and Shamir side will get their turn. Then Rabin and Peres and Barak and Olmert. And Likud in between. As in America, secular courts never will be dispassionately fair. But it kind of works, with many faults and flaws. 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 input at all in the selection and approval process. No compromise there.
2. In America, the Court cannot bar a person from office unless he violates a Constitutional rule, such as minimum age or conviction for treason. Thus, when Richard Nixon may have broken the law during Watergate (and maybe not), and when Vice President Spiro Agnew pleaded to 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 eject them. Therefore, Nixon resigned before getting kicked out 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. The Court should have no say whatsoever in who gets appointed to what. Rather, the people’s elected Knesset should be the only body that has the power to oust an Aryeh Deri, for example — or to let his designation stand. That is the American system, too. No compromise there.
3. 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 tends to be incredibly loyal to him. Robert Kennedy to his brother. Ed Meese to Reagan. Eric Holder to Obama. Bill Barr to Trump. Merrick Garland to Biden. When the president is succeeded, his A-G leaves with him. The A-G in America has great persuasive influence but nothing like the present dictator in Israel, who was appointed by someone who vitriolically hates Bibi to his intestines, Gideon Sa’ar, after losing a democratic primary to him. Now, this “Attorney-General” just won’t go away. It is like the Dr. Seuss book about Marvin Mooney:
The time has come. The time is now.
Baharav-Miara, I don’t care how.
Baharav-Miara, will you please GO NOW!!
You can go by foot. You can go by cow.
Baharav-Miara, will you please GO NOW!!
You can go on skates. You can go on skis.
You can go in a hat. But please go — please!
If you wish you may go by lion’s tail.
Or stamp yourself and go by mail.
Gali, gee! Will you please GO NOW!!
The point is that the 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. No legal advisor in any office should have authority to do more than provide advice and opinion that may be accepted or rejected. No compromise there.
5. The Court in America has no authority to hear matters pertaining to military or political decisions that do not entail matters of law. The same rule should be adopted in Israel — also as to matters of religion, which goes without saying in America. It defies reality that an Israeli Supreme Court could dictate who takes a rabbinical exam. No compromise there.
6. Any plaintiff appearing before the 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 Soros-funded group are pro-environment. You must show that the factory’s soot and filth is floating onto your personal property. I cannot sue an anti-Semite like Kanye West or Louis Farrakhan for defaming Jews like me. I have to show they defamed specifically me. That requirement of standing needs to be adopted in Israel. No compromise there.
7. In America, any case before the courts must be justiciable. It cannot be theoretical. If it is theoretical, the courts throw it out until it actually happens. Israel needs the same rule. No compromise there.
8. In the United States, the Supreme Court cannot overrule something in the Constitution itself. They only can rule that other things conflict with the Constitution. Israel’s “Basic Laws” are akin to a Constitution. The Israeli Supreme Court should not be able to overrule any Basic Law. No compromise there.
9. There is no such legal standard as “unreasonable.” A judge’s personal opinions about what is reasonable do not comprise law. Anyone who wants his personal opinions to be part of the law-making process should run for elected office. The “unreasonable” standard in the courts has to be stopped for once and for all. No compromise there.
10. There is one and only one area of the proposed Judicial Reforms that should be open to further discussion. In all honesty, it does not sit well that a 61-seat Knesset vote can overturn a fair Supreme Court ruling. That can be and should be refined. This is the one matter that, if resolved, will leave a broad consensus in Israel for Judicial Reform, with the exception of the anarchists, Marxists, and demagogic political sore losers like Lapid, Gantz, Sa’ar, and Liberman who will oppose anything and everything the new government does these next four years. So they don’t matter.
And that leaves me with a proposal to break the deadlock 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. 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.
To receive Rav Fischer’s Weekly Extensive Torah Commentaries or to attend any or all of Rav Fischer’s weekly 60-minute live Zoom classes on the Weekly Torah Portion, the Biblical Prophets, the Mishnah, Rambam Mishneh Torah, or Advanced Judaic Texts, send an email to: [email protected]