All Hail the High Court! // The bash-the-Israeli-government bandwagon is crowded

Like impressionable grade schoolers joining some bullies’ gang-up on a hapless classmate, a number of Jewish American community figures and legislators have jumped on the bash-the-Israeli-government bandwagon driven by anti-administration Tel Aviv protesters.

The latest leaper was Eric Goldstein, the CEO of UJA-Federation of New York, who emailed supporters last week that he is “alarmed” by recent judicial reforms introduced by Israel’s newly installed justice minister.

“The current proposed legislation raises dramatic concerns,” wrote Mr. Goldstein, dramatically.

“It eviscerates the role of the judiciary,” he continued, “by allowing Supreme Court decisions to be struck down…undermining the very foundations of Israel’s democracy…”

Upper West Side Conservative clergyman Jeremy Kalmanofsky said he saw “fascists” in the new Israeli coalition, which he compared to “the Klan.” He decreed that the prayer for the State of Israel that was a staple of Shabbat services in his congregation should no longer be recited.

More than 330 Jewish clergypeople (if you guessed none of them Orthodox, you won!) wrote an open letter attacking the new government.

Inviting others onto the bandwagon was retired ADL head Abe Foxman, who lamented that “I never thought that I would reach that point where I would say that my support for Israel is conditional”—his condition being that Israel remain “democratic” and not devolve into something from “the Middle Ages.”

An addition to the gang-up who should have known better was The New York Times’ conservative columnist Bret Stephens, who accused Israeli Prime Minister Netanyahu of joining “the current of illiberal democracy whose other champions include Hungary’s Viktor Orban and Brazil’s Jair Bolsonaro,” and of aiming at “gutting institutional checks and balances.”

And The Times itself editorialized, amid a cholent of perceived outrages, that Israel’s “new leaders” are threatening “the Israeli Supreme Court, which…has served to weigh government actions against international law and the Israeli state’s own traditions and values.”

New York Congressman Jerrold Nadler joined the critics’ club, expressing how “distressed” he is “about the latest reported plans of Israel’s new minister of justice to undermine the judiciary…”

The main prompt of the cri de coeur is the proposed “Piskat Hitgabrut,” or “Override Clause,” legislation that would allow a Knesset majority to cancel a ruling of the country’s highest court.

The crieurs de coeur’s confusion, though, lies in their misunderstanding of that body as a counterpart of the US Supreme Court. The latter, though, is an independent branch of the trias politica that comprise our government. It can invalidate any law it sees as violating the Constitution; and it is composed of people whom a duly elected president nominated and a likewise duly elected Senate confirmed.

Israel, by contrast, has no true judicial “branch” of government, and its highest court’s justices are chosen by the sitting justices themselves and like-minded lawyers. They cannot, moreover, declare any law unconstitutional—nor are they bound by a constitution—because, well, Israel lacks one.

Israel’s High Court is relentlessly liberal and interventionist, “arguably the most powerful and intrusive in the world,” in the words of Elliott Abrams, who served in US foreign policy positions under three presidents.

The admirable outlier on the American media scene, The Wall Street Journal, shunned the alarmist bandwagon. It editorialized:

“Israel’s Supreme Court has more power than America’s but without the democratic checks. Unbound by any constitution, and loosed from requirements of standing and justiciability, Israel’s court strikes down laws that it finds merely ‘unreasonable,’ which can cover most anything… It isn’t ‘antidemocratic’ to think Israel’s Supreme Court needs democratic curbs on its power.”

In Mr. Netanyahu’s words, curbing out-of-control judicial activism “is not the destruction of democracy but the strengthening of democracy.”

Actually, Representative Nadler, if unintentionally, said it, too: “As we have painfully learned in the United States, democracy is not something to be taken for granted. It is the responsibility of all of us, everywhere, to fight for it.”

The fight for democracy in Israel, though, is not to prevent the usurping of a fair election but rather to respect one, and to allow the country’s elected representatives to resist the ivory tower pronouncements of a court whose members were not appointed, directly or otherwise, by the country’s citizens.

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