Scholar, Diplomat Push Back on Left’s Hysteria over Israel’s Judicial Reforms

Scholars and diplomats have begun to push back against left-wing attacks on Israeli Prime Minister Benjamin Netanyahu’s proposed judicial reforms, noting that the Israeli judiciary has unusual power over the legislature.

As Breitbart News has reported, Netanyahu’s government is proposing four reforms that largely mirror judicial practices in the United States, though the Israeli left has claimed they are a “coup” or a threat to “democracy.”

In fact, as even Alan Dershowitz — while critical of the reforms — has acknowledged, the reforms aim to make democracy stronger in Israel by giving elected representatives more of a check against the judiciary’s powers.

In a Wall Street Journal op-ed Monday, legal scholar Eugene Kontorovich argues that the reforms are needed:

The new government’s proposed judiciary reform has provoked pushback from the Biden administration and others on the ground that it threatens the rule of law. This case is a timely illustration that the opposite is true. No judiciary in the world has as far-reaching powers over government as Israel’s. The court assumed these powers in recent decades without authorization from lawmakers or a national consensus, and there is no reason they should be unalterable.

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The reform proposals wouldn’t undermine judicial independence and would make the Israeli court more like its American counterpart. One measure would abolish the “reasonableness” and limit the court to blocking government action that violates the law, not its policy notions. Another would increase the Knesset’s involvement in judicial appointments but still comes far short of America’s purely political appointment process. The reform package would require expanded panels and a supermajority of the court to strike down legislation. In the U.S., Congress has regulated the jurisdiction and composition of judicial panels to raise the bar for striking down statutes.

Similarly, Kontorovich told Breitbart News last week that it was time to reverse the “power grab” that the Israeli judiciary had carried out in 1995, and that it was “outrageous” to argue the Knesset had no right to do so.

In a Jerusalem Post op-ed, former U.S. Ambassador to Israel David Friedman argues for a grand compromise:

Those who believe that the Israeli Supreme Court has too much power are certainly not outside the mainstream of judicial thought. Israeli Supreme Court judges are selected by a committee, the majority of whom are not politically accountable, and the Supreme Court itself even has veto power over new judicial appointments.

And because Israel lacks a constitution, there is no textual discipline (not even “Basic Laws,” which can be repealed and lack constitutional integrity) that prevents judges from deciding matters based upon personal views and philosophies. Those who claim that limiting the power of the Israeli Supreme Court is an attack on democracy are exactly wrong – it is the Knesset, not the Court, that reflects the democratic will of the Israeli people. Indeed, it is the court that puts a brake on the exercise of that will.

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A sensible, practical and predictable legal system is essential to good government, justice and prosperity. Israel deeply deserves such a system and needs to carefully balance the “anarchy vs tyranny” issues just as Hamilton and Jefferson did three centuries ago. This American is rooting for Israel in that effort and hoping for a grand bargain that stands the tests of time and politics.

U.S. National Security Advisor Jake Sullivan — one of the key perpetrators of the “Russia collusion” hoax — recently pressured the Israeli government on the issue; Netanyahu reportedly said he is open to a compromise.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the new biography, Rhoda: ‘Comrade Kadalie, You Are Out of Order’. He is also the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.