This article was first published in The NY Post on July 30, 2023. Click Here to read the original article.
For both America and Israel, President Joe Biden was wrong to intervene in the contentious debate over Prime Minister Bibi Netanyahu’s proposed judicial reforms.
Biden’s spokeswoman criticized Netanyahu, saying it was “unfortunate” he pushed change through Israel’s Knesset “with the slimmest possible majority.”
Biden was mistaken for several reasons.
First, his opinions will have no effect inside Israel, except perhaps hardening already deeply divided viewpoints even further, thereby impeding formation of the “consensus” he says he wants.
This is nothing but virtue signaling, aimed more at Biden’s own domestic constituency than anything else.
And if he had bothered to consider American history, he would know that many historically significant US statutes passed with narrow majorities.
Second, facts matter. Not to be picky, but the Knesset vote was not the “slimmest possible majority.”
Netanyahu’s government has 64 seats of 120, so 61 votes is the thinnest majority, assuming all members vote. Biden’s spokesperson claimed that Israel’s reforms were being pushed through by a government “with the slimmest possible majority.”
Given Israel’s incredibly divided electorate, reflected in multiple recent elections, a 64-vote majority is quite comfortable. Government must go on.
Third, if Biden were truly interested in the security of Israel’s democracy, he should have critiqued the tactics of reform opponents.
Armed-forces reservists, openly proclaiming they were acting as reservists, threatened not to report for their military duty if ordered should the legislation be enacted.
Israel’s judicial reform of its courts’ unchecked power is not as radical as activists would have you believe. This is explicitly undemocratic.
Certainly, in free societies, reservists in their civilian capacity can hold whatever opinions they like and speak, demonstrate and petition the government to advance those views.
Invoking their reserve military status to do so, however, is deeply illegitimate. The phrase “military coup” comes to mind.
While force of arms was not present here, Israel’s precarious place in a dangerous neighborhood means that threatening to withhold military force to defend the country is just as dangerous.
It is fatuous to say, as did some reservists, that they were not advancing political views, just concerns about the future of Israel’s democracy.
The mechanisms of government are the most important political questions of all, and the reservists, acting qua reservists, behaved undemocratically.
Fourth, Biden was disingenuous. While criticizing Netanyahu on a procedural issue, the president’s real focus was the proposed legislation’s substance.
The measure prohibits Israel’s courts from deploying the “reasonableness doctrine” to invalidate government decisions.
“Reasonableness” is a long-standing common-law standard for judging fault or liability in civil or criminal cases, but it is a far different proposition when judges purport to consider invalidating government actions.
At a government-policy level, whether considering executive actions or acts of legislation, “reasonableness” is an inherently nonjudicial standard, a matter of personal political opinion.
Executive officials and legislators are held accountable to their fellow citizens through elections because they necessarily assess the “reasonableness” of possible courses of action.
It is entirely inappropriate for unaccountable judges to make such decisions.
If judges think their personal views are superior, they should leave the courts and run for elective office.
Fifth, it is no answer to say that Knesset majorities need a check because Israel’s parliamentary system does not split legislative from executive power and does not have a written constitution.
Significant, only in recent decades have its courts wielded the “reasonableness doctrine” extensively, giving rise to the inference that when founded in 1948 and for years thereafter, no one anticipated the Supreme Court would assume its current role.
Netanyahu snubs Biden, limits power of Israeli courts despite protests
The real problem, another target of Netanyahu’s reforms, is the self-perpetuating nature of Israel’s Supreme Court.
How would Biden’s US supporters feel if, starting immediately, our Supreme Court picked its own successors?
That would be undemocratic, as Israel’s judicial-selection process is.
Jerusalem’s democratic deficit can be fixed in many ways, and it turns the definition of democracy upside down to argue that affording elected legislators a greater role is undemocratic.
Besides, Israel does have a constitution, an unwritten one, much like the United Kingdom.
Today, written constitutions around the world contain flowery language about citizens’ “rights” that mean absolutely nothing.
A written constitution would not inevitably be a panacea for Israeli divisions.
Clearly, the role of Israel’s judiciary in its vibrant democracy is contentious.
US officials who are real friends of Israel should contribute their thoughts quietly, behind the scenes.
Otherwise, Israeli officials may start commenting publicly on Hunter Biden’s plea deal.