Evelyn Gordon: Israel's Judicial Reckoning
The final element of the judicial revolution was unique in that it enhanced the power not of the courts but of the government’s own lawyers—the attorney general and other government legal advisers. As the names themselves imply in both English and Hebrew—the Hebrew term for attorney general is “the government’s legal adviser”—attorneys general and other legal advisers were originally, well, attorneys and advisers. Their job was to advise the government as a whole and individual ministries on how to carry out policies within the confines of the law, which obviously includes telling them when a given policy would violate the law. But since there is often more than one way to interpret the law, no one during the state’s early decades would have dreamed of saying a legal adviser’s opinion must be taken as the final word. It was just advice, and a minister who disagreed with his adviser’s interpretation could enact his policy and let it be tested in court.
This began changing in 1968, when Attorney General Meir Shamgar, in a novel interpretation of his own position, asserted that his role was not advisory but “of a judicial nature.” (For a fuller explanation of his decision and the evolution of the attorney general’s role, see here.) In other words, he was no longer the government’s attorney, but a judge determining the legality of its decisions. Yet only in 1993 did this power become absolute, when Shamgar and Barak, then the Supreme Court’s president and deputy president, respectively, ruled that an attorney general’s decision is binding on the government. This turned the government into the only entity in Israel deprived of the basic right to go to court; challenging an attorney general’s decision in court would be pointless, because the court, having declared the attorney general’s authority binding, would automatically uphold it.
In 1968, Attorney General Meir Shamgar, in a novel interpretation of his own position, asserted that his role was not advisory but “of a judicial nature.” In other words, he was no longer the government’s attorney, but a judge determining the legality of its decisions. Moreover, any government that did try to do so would be deprived of the basic right of legal representation, since, under the court’s ruling, an attorney general could not only refuse to represent the government’s position but could even bar it from hiring an outside lawyer to do so. As if this weren’t absurd enough, the government also has limited ability to hire or fire the attorney general. Attorneys general serve fixed six-year terms (a government’s term is four years or less), and candidates require approval from a five-member committee dominated by the legal establishment (three members are chosen, respectively, by the Supreme Court president, the Bar Association and the deans of the country’s law schools; the cabinet and Knesset choose the other two). Both the government and committee members can submit nominees, but the committee can force the government to choose one of the committee members’ nominees by vetoing all the government’s candidates—something that has in fact happened.
Of course, since ministry legal advisers are career civil servants who answer to the attorney general’s office rather than their ministers, this change in the attorney general’s status affected them, too. If the attorney general’s decisions bind the government, then by implication, ministry legal advisers have the same binding authority over their ministries, because they are the attorney general’s representatives in those ministries. And since they are civil servants who are not chosen by the minister, legal advisers and ministers often have with very different worldviews, leading the adviser to nix policies that other legal experts with different perspectives might well uphold. This puts the government in a stranglehold that seems absurd when looked at from the outside.
Because the judicial revolution gave the court such broad powers over government policy, it also made one previously uncontroversial institution, the Judicial Appointments Committee, highly controversial. The committee has nine members—the justice minister and another minister chosen by the cabinet; two Knesset members chosen by the Knesset, usually but not always one coalition and one opposition MK; two lawyers chosen by the Israel Bar Association; and three sitting Supreme Court justices chosen by the Supreme Court president. A simple majority of the panel can appoint an ordinary judge, while seven are needed to appoint a Supreme Court justice; this means that both the sitting justices and the governing coalition have veto power.
In practice, however, the justices command an absolute majority, because the Bar representatives almost always side with them. Israel’s court system has only three levels—magistrate’s, district and supreme—and a mandatory right of appeal. Consequently, any case that begins in the district courts ends up in the Supreme Court, meaning any lawyer of sufficient stature to be on the appointments committee regularly appears before the Supreme Court and would therefore be reluctant to antagonize the justices. Thus far from being “balanced,” the committee is heavily tilted toward one side—whichever side the justices favor, in this case the liberal one. When a liberal government is in power, it can team up with the justices and lawyers to appoint liberal justices. But when a conservative government is in power, the justices generally veto conservative candidates, so except in rare cases, it can at best appoint moderates.
When the court routinely rules on major ideological and policy controversies, this system is problematic for several reasons.
Virtually no other democracy lets sitting justices be involved in choosing their own successors, much less have veto power over the choice, and for good reason. Giving sitting justices’ veto power quickly creates a court with almost no ideological diversity, because justices, like all human beings, will naturally prefer people who share their worldview to people whose views appall them—and in Israel’s case, this has meant an activist liberal worldview. If you’re a liberal, imagine a situation in which the current U.S. Supreme Court majority could ensure the appointment of likeminded justices in perpetuity by vetoing any liberal candidate any Democratic president proposed. How long would it take before all liberals distrusted and despised the court? If you’re a conservative, try the same experiment with an ultraliberal court in mind. Either way, you wind up with a court that half the country—and it doesn’t matter which half—distrusts and despises, which is exactly what you have in Israel today.
Direct Polls: 78% of Israelis Support Judicial Reform
Only 4 weeks remain until the end of the Knesset’s winter session, which is also the deadline for the passing of the first two amendments of Justice Minister Yariv Levin’s judicial reform: changing the composition of the committee to elect judges, and preventing the High Court from revoking constitutional laws.How Taxpayer Funds Are Flowing to a Group Bankrolling Anti-Netanyahu Protests
And while the mainstream media outlets in Israel have been bombarding their audiences with reports on a massive, nationwide resistance to both bills, a Direct Polls survey published Monday morning offers an entirely different picture.
Direct Polls pointed out that the mainstream media do not feature surveys that ask direct questions about the different components of the reform.
They don’t ask, “Are you in favor of changing the composition of the committee for selecting judges?” or “Are you for or against the involvement of the High Court in invalidating laws and by what majority?” or “Are you for or against limiting the tenure of the president of the Supreme Court?” These are all issues that the reform authors plan to touch on sooner or later, so why don’t the mainstream pollsters ask the public about them?
According to Direct Polls, it’s because the answers to these questions would show a clear support of more than 60% for the vast majority of the proposed changes.
However, this most recent poll also shows some movement in the opposition camp: 1. Benny Gantz’s National Camp party gains three mandates, one from Likud, and two from Yesh Atid, which is getting weaker, contrary to some mainstream polls; and, 2. Benny Gantz’s rise as the best fit to serve as a prime minister among center-left voters. For the first time in a year and a half, Gantz is tied with Yair Lapid for the job, as Lapid loses more than 10% who switched to Gantz.
Why is Gantz rising, and why at the expense of Lapid?
Supporting Judicial Reform
Direct Polls have shown that an overwhelming majority of the public thinks that the justice system needs reform.
♦ 40%, mainly from the right, support the reform in its current form.
♦ An additional 4% would support it without the override clause.
♦ And 34% are “in favor of the reform, but only with agreements and changes that will lead to wider support in the Knesset.”
That’s a total of 78% support for changes in the judicial system, against only 22% who oppose any change and insist on leaving the system as it is.
Among the group that supports the reform “only with agreements and changes that will bring broad support,” 62% are National Camp voters, meaning at least 7 mandates that would join in supporting the reform in addition to the 64 mandates the coalition already counts on.
The U.S. government has been funneling taxpayer money to the left-wing group bankrolling protests against Israeli prime minister Benjamin Netanyahu, according to Israeli funding documents reviewed by the Washington Free Beacon.
The documents indicate that, since 2020, Foggy Bottom has sent over $38,000 to the Movement for Quality Government (MQG), the Israeli nonprofit stoking nationwide anti-Netanyahu protests that have seen protesters clash with police and target Netanyahu’s family members. MQG is seeking to takedown Netanyahu’s government over his support for major reforms to the Israeli supreme court that would significantly limit its power. The organization petitioned Israel’s Supreme Court earlier this year to oust Netanyahu, claiming he is unfit for office due to ongoing investigations into allegations of political corruption and bribery.
The State Department, which confirmed the funding, calls the group a nonpartisan organization, but its work opposing Netanyahu raises questions about how the group was able to obtain U.S. funding. The United States typically avoids funding foreign partisan groups to avoid claims of political meddling. Even before MQG emerged as the leading force behind the current wave of anti-Netanyahu protests, it made a name for itself as a leading critic of the Israeli right, which has long seen Netanyahu as its leader. Given the Biden administration’s chilly diplomatic relationship with Netanyahu—which includes repeated criticism of Israeli settlement construction and the decision to launch an unprecedented FBI probe into Israel’s anti-terrorism operations—the U.S. funding to MQG has come under new scrutiny.
"The State Department should never fund foreign partisan organizations in allied democracies," Rep. Jim Banks (R., Ind.), a member of the House Armed Services Committee, told the Free Beacon. "If the shoe was on the other foot, the Biden administration would accuse Israel of interfering in our elections. Congress should absolutely review the State Department’s potential funding of partisan politics in Israel."
Excellent column on the role Israel’s Supreme Court plays—and has misplayed as the ground shifted beneath it. https://t.co/ABtTSAuSgE pic.twitter.com/PLainlAskE
— Elliot Kaufman (@ElliotKaufman6) March 6, 2023