Israel shouldn’t cherry-pick the American model in its judicial debate

Notwithstanding the heartfelt call by Israel’s president Yitzhak Herzog to pause the parliamentary process, the “constitution, law and justice committee” of Israel’s Knesset voted Monday to send a key provision of the judicial overhaul package for its first reading to the full plenary. This package, if enacted into law, would fundamentally change the balance of power between Israel’s branches of government.

In the eyes of Israelis, the stakes could not be higher. The opponents of the package see it as threatening Israel’s democratic character. So much so that 100,000 protestors are taking to the streets on a weekly basis to express their opposition — never before have there been ongoing protests of such a magnitude in Israel. Supporters of the package make the claim that it will serve democracy, arguing that the judiciary has become too powerful and denied the will of the people by pre-empting the prerogatives of the elected government. Many of the protestors acknowledge that balance must be restored but see the reforms as throwing the baby out with the bathwater.

If nothing else, the debate and the protests remind us of the vibrancy of the Israeli democracy. Debate is part of the Israeli ethos. Voting is as well. How else can one explain that 71 percent of the Israeli public turned out for their fifth election in three and a half years — a figure clearly higher than American voter turnout. 

Yet obviously, the definition of democracy goes beyond elections. Hungary and Poland hold elections, but have majoritarian rule, running roughshod over the rights of the minority. In the Federalist Papers, James Madison inveighed against the danger of concentrating power in only one branch of government. Checks and balances were needed lest the concentration of power would threaten the rights of the individual.

Bezalel Smotrich, Israel’s new finance minister, argues that the proposed judicial reform simply mirrors the American model. That, however, is not true.

What is true is that it selectively takes the part of the American approach that politicizes the selection of judges and legal advisors, even as it ignores the checks and balances that protect individual rights.

Yes, in the United States there is a political process for selecting judges, meaning that Republican and Democratic administrations, based largely on their different political philosophies, choose who will be judges. Similarly, unlike in Israel where the legal advisors in ministries answer to the attorney general not the head of the ministry, in America every department’s legal advisor is appointed by the Cabinet official who heads the department or agency.

We have both worked closely with legal advisors in the State Department — an official appointed by the Secretary of State and not by a non-partisan official as is the case in Israel. 

Even if it might be preferable not to have judges and legal advisors appointed by political officials as in America (where it is hard to deny the reality that we now have “Republican” and “Democratic” judges), one cannot call these parts of the proposed reform package anti-democratic. 

But, herein, lies the problem: The reforms cherry-pick the American model, taking the part that suits the political preference of the author of the reform package, Justice Minister Yariv Levin, and ignores the rest of it. After all, in the U.S., the Supreme Court makes decisions on the basis of a simple majority — and if it makes such a decision that invalidates a law passed by the Congress, our legislative branch cannot override the court’s decision.

The override provision in the Israeli package would permit a simple majority of 61 out of 120 Knesset members to override an Israeli Supreme Court decision. (Only if all 15 of the Israeli Supreme Court judges agreed could their decision not be overridden. Such unanimity would almost never exist.) 

The override provision as drafted would end separation of powers, making Israel’s executive branch dominant with no checks on it. Because Israel is a parliamentary system, the prime minister’s coalition holds a numerical advantage in the Knesset — so, a narrow-based government, without judicial oversight, could ram through any laws that it wants, producing potentially the tyranny of the majority with no protection for minority rights. 

In America, citizens have constitutional protections. Israel does not have a constitution but has “Basic Laws,” which, in essence, the are a quasi-Constitution written by thematic chapter. But should the override provision as drafted become law, nothing would prevent a bare majority of Israeli parliamentarians from amending the “Basic Laws” however they like. 

Elyakim Rubinstein, a highly respected former deputy chief justice who is politically right of center, has said the reforms — unless modified — would yield a “democratic dictatorship.”

Can a balance be found between those who want to preserve Israel’s judicial independence that has served Israel so well for 75 years and those who want to address the issue of judicial overreach? Israeli President Herzog, having met with all sides over the last few weeks, outlined five principles which in essence would define the “Basic Laws” more narrowly and make them subject to stricter interpretation, make the judiciary itself more diverse and reflective of all parts of Israeli society, and assure that an override of the Supreme Court would have to reflect a larger consensus. He believes these principles provide a basis both for a dialogue and for the compromises that would emerge from it. 

President Herzog is providing a pathway out of the deep division in the country, and instead of posturing with regard to the Herzog call, all sides should accept his offer to host the dialogue, and it should begin now. 

A compromise is both necessary and possible.

In the context of the U.S.-Israeli relationship, it is worth noting that the reality of Israeli judicial independence has served the U.S.-Israel relationship well. It has enabled Washington to urge groups like the International Court of Justice to trust that there is judicial oversight in Israel that does not exist anywhere else in the Mideast. It has enabled successive U.S. administrations to believe there is due process in Israel when it comes to Palestinian land claims.

Much is at stake. If an independent judiciary is lost in Israel, it could have a profound effect on the U.S.-Israeli relationship. With progressives and increasing numbers of younger Americans more critical of Israel, the last thing Israel needs is for it to look like it no longer shares our values.

Common interests may bind governments, but shared values will be what continues to bind our two societies. Surrender that, and Israel will find it increasingly difficult to preserve what it has held for its first 75 years: a strong hold on the American public’s imagination.

Dennis Ross is counselor and the William Davidson Distinguished Fellow at the Washington Institute for Near East Policy. He served as special assistant to President Obama, as Special Middle East Coordinator under President Clinton, and as director of the State Department’s Policy Planning Staff in the first Bush administration. He is the author, with David Makovsky, of “Be Strong and of Good Courage: How Israel’s Most Important Leaders Shaped Its Destiny.” Follow him on Twitter @AmbDennisRoss.

David Makovsky is the Ziegler Distinguished Fellow and director of the Koret Project on Arab-Israel Relations at the Washington Institute for Near East Policy. Between 2013-2014 he served in the Office of the Secretary of State as a senior adviser to the Special Envoy for Israeli-Palestinian Negotiations. He is an adjunct professor at the Johns Hopkins University Paul H. Nitze School of Advanced International Studies (SAIS) and the creator of the Decision Points podcast. Follow him on Twitter @DavidMakovsky.