Israel Sushi Blog / Ben & Sarai Kerido
(5-6 Minute Read)
The definition of “democracy” is the rule of the government by the majority of the citizens.
We can discuss the details of the judiciary reforms in Israel as well as the civics of the one and only Jewish state and the institutions thereof (which we will do shortly), but the simple fact of the matter is that, before that discussion, we must all answer honestly this simple question:
If the shoe was on the other foot, would we still have the same opinions regarding the Israeli governmental systems and judiciary reforms?
If the secular left in Israel had just won an election and crushed the religious right, but the Israeli right still dominated the unelected, undemocratic Supreme Court and judiciary and maintained broad “effective veto” powers over the victorious left majority government to turn them into a semi-“lame duck” government at will; and if this was a one-sided status quo that never occurred in reverse;
In that context, if the shoe was on the other foot, would the Israeli left be out in the streets with unruly (and in some cases violent) protests intentionally damaging and endangering the State of Israel and literally calling for the overthrow of the government in order to keep the religious right minority in a position of undisputed power over the vetoing judiciary for perpetuity to the detriment of a left-wing agenda?
Or would the left immediately implement some kind of judiciary reform almost identical to (or even more severe than) those proposed by the right in order to make the governmental system more democratic and representative of the will of the voting majority?
Before we even begin a discussion about civics theories and which judiciary models are the best for Israel and other western-type democracies, we must answer the this above question simply and honestly.
We all know the answer; everyone in Israel knows the simple truth.
It’s important to note that the news media outlets are not accurately or fairly reporting the situation and all of the nuances of the proposed judiciary reforms. In fact, the reporting is so inaccurate at times it is shocking or even infuriating.
It now seems to be common knowledge here in Israel that the goal by the minority opposition is to promote a leftist agenda and end Prime Minister Benjamin Netanyahu’s political career forever by any means necessary, and even overthrow the legitimately-elected government if they can.
This isn’t hidden.
This isn’t a paranoid “conspiracy theory.”
We can’t even count how many times we have seen these statements openly said this online (shockingly) in their social media posts and comments. It’s overt rhetoric visible for all to see.
Apparently for the Israeli left, Plan A was to win the election. For better or for worse, the left did very poorly in the elections, especially the far left parties like Meretz and Labor..
In the event of a loss at the voting booths, it seems that the left’s Plan B was to veto the right’s easily-passed legislative actions. The right is pushing for reforms.
Plan C is now to “take the country hostage” with unruly (and sometimes violent) protests and disruptive and even very dangerous strikes. The far left reiterates over and over again that they won’t stop until the right-wing majority gives in to the demands of the left-wing minority.
But here’s the kicker:
Prime Minister Netanyahu and the right-wing coalition have even agreed to pause the judiciary reform legislation and (once again!) invited the left to sit down and negotiate a compromise.
In order to fully understand the scenario, it is vital to be aware of the dynamics of the Israeli government and recent examples of concern like the recent Lebanon Gas Pact and what the Supreme Court did with that. In short, for better or for worse, Netanyahu and right are pushing for reforms in response to flagrant politicization, corruption, and the violation of Israeli law by the Supreme Court and the judiciary in their rulings to push an illegal political agenda on behalf of the left.
Make no mistake:
The chaos and shameful catastrophe here in Israel is not about judiciary reform. Indeed, even Alan Dershowitz emphasized that the vast majority of those protesting or opposing it have absolutely no idea what they are fighting against.
As the Israeli left is now stating publicly and brazenly, this is a soft revolution, a soft coup d’ etat by one of the smallest minorities in Israel to overthrow the legitimately-elected, democratic right-wing government.
To be clear, it seems that many of the unruly protesters are aligned with the far-left Meretz and Labor parties, who combined secured less than 7% (!) of the nation’s total vote (and that does not take into consideration the threshold disqualifications.) By the way, that’s a total of about 350,000 citizens out of a country of 9 million. Coincidentally, the total number of unruly protesters has never even come close to meeting or exceeding that number.
We have absolutely no problem saying that we have not, do not, and would not ever support the situation in reverse if the left had won and the right had been crushed. And while we strongly support judiciary reform in general, we are not saying that we fully-endorse every single nuanced aspect of the proposed legislation.
But we absolutely can say that we support a government system that is consistently fair to all, irrespective of party, ideology, or religious affiliation. We would like to say (we hope) that we have at least some basic element of integrity and principles when it comes to our political views and theories on civics.
But as shocking as it is, our positions (that we would consider to be fair and at least somewhat objective, and fall somewhere in the spectrum of “centrist-to-moderate right”) are referred to as “fascism,” “dictator-support”, and even, and we quote, “a danger to democracy” and “an existential threat to Israel”!
We are appalled and dismayed at the number of people (both in Israel and outside of Israel who somehow think their opinion is relevant) who foolishly, blindly, and/or deceptively and even maliciously are supporting (or even engaged in) this great moment of intense shame for the one and only Jewish nation to oppose reforms they don’t even understand, and even overthrow the government.
Indeed, we think this qualifies as one of the lowest points in the entire history of the modern State of Israel, reaching the level of the Yitzhak Rabin assassination.
Regarding the need for the judiciary reforms as proposed by the Israeli right, here is a succinct summary of the key issues and concerns to be mitigated.
Most Western nations, including the USA, have some kind of legislative and executive balance against the judiciary.
For instance, according to the Constitution the US President (executive) nominates a judge, and the Senate (legislature) ratifies him/her.
If a judge is to be removed, there is an impeachment process through the Senate (legislature).
Not so in Israel. Not even close.
Concern #1
In Israel all judges are appointed by a committee of 9 persons. 3 existing judges, 2 Israeli Bar Association representatives, and 4 from the K’nesset (combined legislative and semi-executive branch).
A simple majority of 5 is needed for the approval of all judges other than Israeli Supreme Court justices. That means that the unelected judiciary can appoint themselves at will and the say of the elected officials is totally meaningless and can be overridden immediately by the non elected members. That means that the appointment of all non Supreme Court judges can be done 100% independent of any kind of democratic process or influence. (And some shockingly bad judges have this been appointed and/or promoted, including an Israeli Arab who notoriously supports and facilitates Palestinian Arabs suing the Israeli government, military, etc.)
For Supreme Court justices, 7 out of 9 members are needed for approval. But it’s common knowledge that these 5 non-elected members all belong to X party / ideology / coalition. So that means that if X is in control of the government, then X can appoint anyone they want without any real opposition. (By the way, this just happened in that when X was in control of the government recently, they appointed 61 judges in a single session. For a small country like Israel, that’s insane.)
In contrast, even if Y party / ideology / coalition is democratically elected to power, the 7/9 rule means that they have to engage in major compromises with X, even if X epically lost a recent election.
Thus, X controls the judiciary by default no matter how the country votes in democratic elections. Every single appointed judge and Supreme Court justice are either solidly X aligned or they are a compromise that X is willing to accept.
In summary, if X wins an election, when it comes to the selection committee for new judges, by default they have an indisputable super majority 8 or 9 out of 9 appointment committee positions. If Y wins, they usually default with only up to 3 or 4 out of 9. This status quo is difficult (impossible?) to alter.
Concern #2
There is a concept in Israeli jurisprudence called “reasonableness” of a legislative law or action as being justification for judicial review and overturning / veto. This is very complicated, but the quick version is that a judiciary of non elected judges aligned with X can nullify a law or action of the K’nesset (combined legislature and semi-executive branches) not because it is against Israeli law / constitution, but merely because in their personal opinion they don’t think that Y party / ideology / coalition passed a “reasonable” law or action.
That means that an unelected segment of X as the judiciary can essentially veto any legislation they choose that was passed by the democratically elected Y government without ever citing a single law.
Similarly, the judiciary can dismiss the legal claims of Y against X without citing any laws or even offering a detailed explanation other than “your arguments are unreasonable,” even when Y clearly asserts that X is not following the law, and cites multiple laws to support that claim. (This happened recently in October of 2022 with the matter of the Lebanon Gas Pact.)
This is perhaps the biggest concern. X can and does exercise veto powers against the elected Y government through the unelected X aligned judiciary, and this is a historical trend and known fact. In contrast, there is no scenario for Y to ever have unelected and unrestrained effective veto power against an elected X government / legislature. It’s a one-sided equation only, and that’s known and understood by all. The reforms claim to seek to balance out or diminish that equation.
Concern #3
Unlike the American and other systems, there is no impeachment process or similar for the removal of errant judges by the legislature, etc. In Israel the judiciary polices and monitors itself and its judges with little to no involvement from any democratically elected official (i.e. no checks or balances whatsoever).
Concern #4
Because the judiciary is dominated by X, then that means that X governments and their legislative actions are largely impossible to challenge legally. And their politicians themselves often enjoy partial immunity. In contrast, Y governments and their politicians can be easily challenged (legitimately or otherwise) based on the level of bias (and even corruption?) of the X-aligned judiciary.
Case in point, a few years ago the leader of X was accused of international corruption. The US Senate investigated, and both Democrats and Republicans agreed that the international corruption did occur, but in the USA it technically wasn’t illegal. In Israel, however, it was hugely illegal. And so Y sued X. The X-aligned judiciary ignored the bipartisan US Senate report and dismissed the case against X, and even fined Y over $12,000 for the legal costs of X! In contrast, key politicians of Y are routinely investigated and prosecuted for corruption (legitimately or otherwise) by the X-aligned judiciary.
Concern #5
The very fact that there is so much international obsession with Israel’s judicial and legislative processes is very disconcerting from an Israeli perspective. Can you imagine how inappropriate it would be for Netanyahu to have commented on the appointment of US Justice Brown Jackson, or Lapid to have commented on US Justice Barrett? The fact alone that this has become a matter of international political interest and even pressure shows that there is much more at play here.
Concern #6
Party / coalition Y is claiming (with cited studies and references) that their suggested judicial reforms are deliberately intended to make the Israeli government and the checks and balances thereof more resemble the USA and the UK and less resemble nations like Turkey. Alan Dershowitz describes the reforms as being similar, for better or worse, to the models used by Canada, Australia, and New Zealand. It is shocking that a shift that is claimed to be an attempt to partially emulate the US Constitution or Canadian / Commonwealth systems is being decried by Israeli X and even some American politicians and media sources as, and I quote, a “danger to democracy.”
Concern #7
This is nothing new. Party / coalition Y has been running on the platform of judicial reform for years now. And with that agenda at the forefront, Y crushed X in an election at a margin of 53% versus 33% (i.e. the defined right verses the defined left, excluding the Arab parties and Lieberman.) The simple fact of the matter is that the people of Israel democratically voted in favor of the political leadership who vehemently and publicly campaigned for these judicial reforms. The people protesting in an unruly manner, to be blunt, are only doing so because they just abysmally lost in a democratic election. In other words, they want to have their way even when they fail epically in a democratic election. Sorry, that’s not how democracy works. To frame the political leadership who won an election by as much as 20 points as being “tyrannical” and “dictator-like” and “leading a coup d’ etat” because they can now act as the ruling majority and legally and constitutionally enjoy the benefits thereof is the epitome of absurd and disgraceful. A person might not like that New York is a strong blue state or that Alabama is a strong red state. But to say that Democrat control of New York or Republican control of Alabama after a legitimate election and easily passing legislation accordingly is somehow “anti-democratic” is complete nonsense. And while peaceful protesting should absolutely be permitted, protected, and supported, unruly and violent actions by a minority who just got crushed in a legitimate election who seek to unduly influence (and even coerce and intimidate) the democratically-elected government that is still supported by their voters (i.e. the democratic majority) is disturbing, disgusting, and dangerous.
If it wasn’t obvious, X is the Israeli left presently led by Yair Lapid and also represented in part by the Meretz-Labor parties, etc. And Y is the Israeli right led by Benjamin Netanyahu and his ruling right-wing coalition. I used X and Y to get us to analyze the situation objectively. Because when we do that, there is no possible way to say that some kind of judicial reform is not appropriate and necessary, even if we are not all in agreement as to what the specific details of those reforms might look like. But the reason you are not hearing these clear and concise descriptions of the situation is because when expressed objectively, there is no way for X, or the Israeli left, to defend the cronyistic and we dare say corrupt status quo. (And cronyism and corruption are big problems in Israel of all political segments.) All of Israel knows it, which is why X / the left are losing elections. And this is why the Israeli left is protesting in the streets in an unruly matter, without really even clarifying the exact details as to why. Because they really have no reasonable argument against the need for at least some kind of judicial reform. And if the shoe was on the other foot, there is no way that X / the Israeli left would ever tolerate the status quo (as they absolutely shouldn’t).
“You shall not follow a multitude to do evil…
Judges and officers you shall make for yourself in all your gates, which the L-RD your G-d gives you, tribe by tribe; and they shall judge the people with righteous judgment… Justice, justice you shall follow, that you may live, and inherit the land which the L-RD your G-d gives you.”
Shemot (Exodus) 23:2 & Devarim (Deuteronomy) 16:18-20
