“…That government of the people, by the people, for the people, shall not perish from the earth.”
-President Abraham Lincoln, The Gettysburg Address, November 19, 1863
Professor William Baude is an American legal scholar struck by the obvious. His simple observation has escaped American Jews who, for the most part, have failed to step forward and offer thoughts on democracy to our Israeli brethren. They need it; as Professor Baude intimates, they are quite lost.
Baude identifies that the protests in Israel against judicial reform have nothing to do with advocating for democracy or the ideals of representative government. Rather, they are expressions, when legal and peaceful, permitted only as a result of the very democratic ideals against which they are protesting.
Sometimes it takes an unaffiliated outsider like Professor Baude to simplify the issue for American Jews so that we can directly explain it to our brothers and sisters in Israel. We would recognize that a broad swathe of Americans could be relied upon to pick up arms against the same system the Israeli left is now protesting to save.
American Jews need-know only a few key points to remind Israel what democracy is and what it isn’t.
The Israeli Supreme Court Appoints Its Own
The Israeli Supreme Court effectively appoints its own. As MK Simcha Rothman, the Chair of the Knesset’s Constitution, Law, and Justice Commission, and I wrote in the Wall Street Journal in March:
“The Israeli Supreme Court effectively selects its own. This problem is easily understood by Americans. Imagine if Justices Amy Coney Barrett, Brett Kavanaugh, Neil Gorsuch, Samuel Alito and John Roberts could have nixed Justice Ketanji Brown Jackson.”
Americans have no doubt that if the current “conservative 6” could vote to replace themselves with their own groomed successors, it would dramatically change the nature of our elections.
We would not stand for it. As such…
Court Makeup is Supposed to Be Accountable to Politics
Lincoln’s simple description of our polity must be at the forefront. Our government, which includes the robed ones, is accountable to the people. And, through elections, our elected representatives.
Our elections have consequences. One of those consequences is that sitting Presidents, with the advice and consent of the Senate, fill the seats of our Supreme Court.
Our justices have exactly no input to their replacements, officially. But actually, they have quite a bit of input by strategic retirement – to retire when their own favored political party is in power. That is to say, they are completely at the whim of politicians, and thus, politics.
Americans remember the near cult-like status the advocate-extraordinaire-turned Supreme Court Justice Ruth Bader Ginsberg achieved. Calls for her retirement – an openly “strategic retirement” – graced the pages of the Washington Post. The New York Times reported, in 2022, several years after her death, that she “had refused to retire when President Barack Obama could have appointed her successor…” President Biden campaigned on the type of justice he would nominate. So did President Trump.
Judicial appointments as political decisions are part of the very fabric of our democracy. Politics in the judiciary has been rampant since the founding days. (See the Presidential Commission on the Supreme Court of the United States Final Report, December 2021, Pgs. 39-42 for a brief description).
The anti-democratic forces in Israel may point to American calls for its own judicial reform to muddy the waters. But leading proposals for judicial reform do anything but end political influence on our courts.
American Judicial Reform Calls for More Political Influence Over Courts
Let’s just look at two examples for reform identified as Sections III and IV of the above-referenced court reform study for President Biden. These two proposals could not be more diametrically opposed in intent. The first would allow for “Court-packing (Section III),” put forward by many liberal scholars including Professor Baude’s podcasting partner Professor Dan Epps. Section IV described limited term appointments spanning multiple presidential administrations rather than life-terms for our justices.
Although they seem to be in conflict, both proposals empower the current elected people’s representatives. Neither seeks to remove appointments from elected bodies.
Court-packing is a frontal attack on the current court makeup. If I am the currently democratically elected politician, then I pack the Court with my selections. Note, this has the effect of weakening the power of the sitting justices in favor of the people’s representatives. As we saw above for Israel, the justices hold the cards to name their replacements. Here in America, justices have no such power, yet court-packing proponents still wish today’s politicians further influence the Court. Court-packing supporters clearly favor a more political court.
Limited terms have the effect of limiting the power of former political decisions (i.e. past elected leaders’ appointments) in favor of current ones. That is, today’s politics affect the court appointments more so when we limit the tenure of justices. This has an additional wrinkle that relates to the Israeli system. It would remove a large incentive for a sitting justice’s strategic retirement. The judge “is retired” automatically and gains nothing by strategically retiring.
In both of these promoted reforms, America seeks to limit its Supreme Court’s power in favor of the democratically elected. This is precisely what the Israeli reforms would do.
One other note from the American Judicial Reform study. In the nearly 300-page report, the word “nonpartisan” appears nowhere but in the bios of two of the 34 committee members in the final appendix. Partisan politics is a given in court appointments.
Rather than support the protesters, any logically congruent application of an American judicial reform conceptualization to Israel would be in support of the reform proposals, not against it.
Just imagine if a Court appointed its own, could not be replaced over time with judges selected by the people, could not be limited in expanding its own powers, and regularly did expand its powers.
That would be scary to Americans, while…
Israel’s Supreme Court is Unaccountable to Anyone
The good news is that Israel was once a Kritarchy, a nation ruled by judges from the time of Moses until the time of its first King, King Saul. The bad news is that Israel is the only modern western nation that has jumped back into the abyss of a judiciocracy.
The Israeli left is confused when it calls its support for it “democracy.”
In America, our court is bound by a Constitution – that social contract to which our forefathers agreed limited the powers of government. Israel has no such constitution. Its court is thus unimpeded from aggrandizing more power for itself. It has done just that and continues to do so, as we will see.
But for now, let’s compare how America can control its court. After first limiting our court by a constitution, we can then alter those limitations. That is, we can rein our court in. That process is called “amendment.” It’s not easy and it’s not impossible.
Our court cannot run wild absent our controls. Israel’s court can, and, for all intents and purposes, does. Let’s draw a parallel.
Imagine being in a friendly sporting event, say soccer, with set rules. Both sides score goals in a fair and balanced, back-and-forth match. Then, one side determines that the last goal was a “special goal” worth 10 points because it was a header. Then the same side determines that it has the power to decide how much special goals are worth. Finally, when your side scores a “special goal,” the other side tells you that it doesn’t count because another special goal was first. It doesn’t take long to see there is no chance for your side, in this case, the people’s, to “win.”
For parents out there, that game will be familiar. It sounds a lot like playing any game against a young child. My apologies to the Israeli Supreme Court…but still.
In America, if a court issues a ruling that the people don’t appreciate, our representatives pass a new law to counteract the Court. No such device is available to Israelis when the Court deems it. The Israeli Supreme Court elevated certain laws to quasi-constitutional level – Basic Laws. Then, it gave itself the power to review those. Then, lo and behold, the Israeli Court gave itself the power to determine which Basic Laws it cared for relative to others when the elected officials tried to amend them. That’s right, the Israeli Supreme Court struck an amendment to a Basic Law.
The people are left with no path to affecting the laws in their own country. This is about the democracy our own young children would institute. And, it gets worse.
A Court That Limitlessly Expands Its Own Power
The Israeli Supreme Court not only gave itself review powers to supersede the people or the Knesset, it has gone hog-wild. It removed restrictions on cases before it (in America, “standing”) allowing it to find the cases it wanted regardless of the party supposedly harmed.
It gave itself the power to determine the reasonableness of the Knesset’s laws. In a naked power grab, the elected leaders’ reasonableness, as a reflection of the voters’ wishes, could be supplanted by the Court’s unaccountable version of reasonableness.
Whereas our courts often invite – and are deferential to – government positions, Israel sees it differently. The Israeli Supreme Court removed the power of the government to choose its own position or advocate in Court, selecting instead the one it wanted, the “attorney general.” But don’t be confused, Americans. This is no Bobby Kennedy to John F. Kennedy. The acting voice of the current government was appointed by a previous government.
If the government wishes to stand before the Court with a legal position for which it was elected, there is an absolute bar to doing so if the sitting Attorney General, divorced from elections disagrees. The adversarial system of courts requires zealous advocacy before a court, not a silenced litigant who also happens to represent the people.
But, hey, hats off to the Israeli Supreme Court, fairness, representative government, or judiciousness be damned. This begs the question on why the Israeli left is going bananas in support of a judiciocracy. It wasn’t always so…
The Israeli Left Has (Temporarily) Flip-Flopped
If it sounds like this can’t all be true without freedom-loving liberals joining calls for reform, you would be 100% correct. Many of the calls for judicial reform come from the left. Or, at least they did.
The Israeli judiciocracy is innately anti-democratic. The left saw the writing on the wall and supported reforms. The prior coalition government was working on reforms before its collapse.
But something dramatic has changed. Now, even the slightest bit of reform calls for months of mass protests, airport shutdowns, death threats to politicians, and even the assault and battery of leading politicians and their wives on foreign soil.
It begs the question, why has the left switched sides? Or, why are they purposely confusing judiciocracy with democracy in such a brazenly “opposite-day” manner? What should American Jews say to Professor Baude’s head-scratching mockery of the Israeli left’s confusion related to democracy to explain it to our Israeli brethren?
‘It’s the Jews’
Yes, we are all Jews, but this time it’s different. Never before have religious Jews been such a part of their own country’s government. The demographics surely favor the religious. They vote for multi-generational Jewish exceptionalism with their wombs.
The numbers are stark. Democracy means the will of the voters. The voters are increasingly religious Jews.
The left wants to stop democracy if it means that and stop it now. It needs to preserve an institution that is completely insulated from the voters to stop them. When MK Rothman and I wrote in the Wall Street Journal in July, the editors summarized our piece as:
“What the Israeli Left Would Rather Forget. It has abandoned its prior proposals for judicial reform because the religious right now proposes them.”
This anti-democratic advocacy is a complete reaction to religious Jews being empowered. American Jews know religious discrimination when we see it. We only need to say so.
The American Jewish Perspective is Israel’s Best Path Forward
For American Jews, we must not sit out the debate. For those of us who think “the religious must win because I am religious” or that “the secular must win because I am not religious,” stay out of it. We can agree that adds nothing to the mix. It is the result of affiliation and not open dialogue.
More importantly, we were granted a home in America, not by accident but by the ideals of our founders. We have been inculcated with them. We can lend that experience to the Israeli goings-on.
Having been blessed with ideals that exist outside of the secular/religious divide in Israel, we owe it to engage. We believe that voters and votes matter. That our institutions must remain accountable to the people or we are lost. That speech is powerful and encouraged, but lawlessness as a result of losing at the polls is not to be admired.
In short, without a call for any specific reform, we must limit the power of a judiciocracy, no matter how many protesters are in the street and how loud they scream.
Our failure to share our perspective allows the Professor Baudes of the world to continue to mock the inanity of the left’s successful (thus far) derogation of democracy.
Edward “Coach” Weinhaus, Esq. is a lecturer at Yeshiva University, attorney, commentator on contemporary Jewish issues, and international judicial reformer. He publishes America’s largest Judicial Misconduct news service, AbusiveDiscretion.com, serves on the board of two judicial accountability non-profits (Children of the Court, the Legal Accountability Project), and serves as Special Media Advisor to MK Simcha Rothman, Chair of the Knesset’s Constitution, Law, and Justice Committee. Coach has earned five degrees from among the London School of Economics, the University of Chicago, and Washington University in St. Louis.