Judicial Protests Are a Good Sign for Israeli Democracy

Prime Minister Netanyahu did the right thing in placing a hold on judicial reform; no issue is worth country-wide turmoil and civil unrest. Although a majority of Israelis believe some kind of judicial reform is long overdue, broad consensus is needed along with a return to civility. Negotiations must address the core problem of a judiciary being chosen by a small group having a monopoly on the process without accountability to citizens or recourse by voters. No matter how judges are selected, inherent biases and politics always play a role.  A concurrent problem is a lack of a constitution, where judges can’t rule a law “unconstitutional” only against a “reasonable” and undefined standard.

In the United States, the elected president nominates, and elected Senators confirm or reject, judicial picks. When the president and the Senate are of the same party, as often occurs, approval over the President’s choices are greatly enhanced. President Biden has had 117 lifetime Federal judges confirmed thus far in his term; Presidents Trump and Obama had 234 and 329, respectively. Elections do matter, and the pendulum swings. Since 1948, only one time has a party controlled the presidency for more than eight consecutive years (12 under Reagan/George H.W. Bush).

In Israel, elected leaders have a limited and minor role on the judicial selection committee. It is a flawed and incestuous process, where Supreme Court justices can choose their successors or veto other suggestions, all without any recourse. The process is undemocratic and highly political — you simply can’t take the politics out of politics.

Adding to the problem, unlike in the United States, you don’t need “legal standing” to sue, i.e., having a personal and substantial interest in the case and harm from the law or action being challenged.  In Israel, any person or group can seek judicial relief.  There are two additional major flaws in the current system: (1) the court can overturn any law or government action based upon undefined “reasonableness,” and (2) only three of the 15 justices can make such a ruling. Judicial review of legislation is undefined and nebulous, and invites undemocratic conflict.

The current coalition has introduced a series of bills to place limits on this unrestrained power of the court and legal system, in order to make the process more democratic and accountable to the citizens. Aside from the mass nationwide protests, there has been too much opining and interference from foreign nations and leaders weighing in on the internal policies of a sovereign nation whose government is democratically elected.

Present Herzog has convened negotiations among the various factions. His prior attempt at compromise failed, because it did not solve the above problems, while, in the opposition’s eyes, also still guaranteeing a system of checks and balances on the majority in the Knesset.

Having the prime minister and coalition make judicial selections and requiring a majority or supermajority of all 15 justices to overturn a law or government policy would address almost all the contentious issues under discussion. At the same time, change would occur very slowly, as judges do not serve for life. Based on the ages of the current justices, it would take eight years for a majority of the court to be selected by the current and future governments, with only five retiring in the next four years, a time period that would exceed the term of the current coalition. The coalition has offered a reasonable compromise by selecting only the first two picks in any term, with the potential third and fourth picks requiring a higher threshold which includes the opposition and non-elected justices.

While other issues including the “reasonable” clause, “standing,” role of the attorney general, and Deri clause (allowing a Member of Knesset who had been previously convicted on crimes to serve as a minister) need to be addressed, the second most contentious issue is the “override” clause allowing the Knesset to override judicial decisions with a simple majority of 61. Many believe, and I agree, that this would give the ruling coalition in a parliamentary system full power over all branches of government.  If a super majority of the full court is required to overturn a law or government policy, it is only reasonable that a super majority of the Knesset of 70 or 75 votes should also be required for override.

However this debate turns out, it is shocking that some current and former government leaders have acted in a way to try and destabilize Israel internally and on the world stage. Former Prime Minister Ehud Olmert, who was convicted and served time for bribery and obstruction of justice,  comes to mind, as he has called for world leaders to shun the current prime minister. Cooler heads are now prevailing and the political temperature has been reduced.

In the most recent election, out of a population of 9.6 million, more than 4.8 million people cast votes, for a turnout of 71.3% of eligible voters. Should these voters be totally ignored in favor of a judicial selection committee of nine, where it takes seven votes for a judge to be appointed — all in which a majority of five of the nine people are unelected judges or attorneys accountable to no citizen?

In the mid 1990s, through a “constitutional revolution,” the court gave itself the power to cancel legislation. Contrary to the media narrative, the current proposal will actually strengthen democracy, as the citizens of Israel will for the first time since 1952, have input into the judicial selection process. The true test of good legislation is to look at the longer term effects, especially when those in power become the minority and those out of power regain control. However the debate and negotiations turn out, despite the media disappointment, Israel democracy is alive and thriving.

Mitchell Kaye is a former State Representative from Georgia, serving from 1993-2003 and 2022-2023, and is a frequent traveler to Israel.