Judicial Reform in Israel Is Urgent and Necessary

A s the dust from the recent Israeli elections settles, it appears that the next government will be formed by a right-wing coalition led by former prime minister Benjamin Netanyahu. Judicial reform was a dramatic wedge issue in the campaign, with some political parties publishing blueprints for sweeping change, others vociferously defending the status quo, and all of them firmly asserting that Israel’s very democracy was at stake. As the new government emerges, it’s worth addressing some common misconceptions about this significant, complex, and often-misunderstood debate.

Though it might seem a modern partisan power struggle, the judicial-reform debate has much older roots. Founded 74 years ago, Israel developed its system of law and governance in an ad hoc fashion, and generally in crisis periods. Political fragmentation, defense against constant existential threats, and the lack of a written constitution left a power vacuum that the Israeli court system has slowly and intentionally filled without a popular mandate to do so.

The Israeli Supreme Court, not a popular-representative body, unilaterally declared a written constitution in the 1990s, a surprise to the lawmakers who had passed the statutes the Court decided to ‘constitutionalize.’ The Court then endowed itself with the power of judicial review of parliamentary legislation despite the absence of a duly ratified constitutional document. And the Court departed from its own tradition of restraint to effectively eliminate any limitation on standing and subject-matter jurisdiction in constitutional cases. These are just a few elements of a long and continuing appropriation of policy-making power by the judiciary, whose radical innovations were lambasted even by international legal thinkers such as Judge Richard Posner over 15 years ago.

Within Israel, demand for judicial reform — including revising the method of judicial selection and limiting the Court’s vast authority — is bipartisan and extends back nearly 40 years. While the cause is more popular on Israel’s Right than its Left today, the foremost advocates of these reforms have often been legal luminaries affiliated with Israel’s Left or political center. These include former Tel Aviv Law School dean and former justice minister Daniel Friedmann, the late civil-rights activist and H. L. A. Hart pupil Ruth Gavison, Israel’s top administrative-law expert Yoav Dotan, and the late former Israeli Supreme Court chief justice Moshe Landau.

When understood through this history, the question of Israeli judicial reform returns to a discussion of principles over politics, and of policy over personality. At stake is the rule of law in Israeli society, and the consequences that its erosion have had for our culture, politics, and security. Some foreign-press coverage of these issues, however, has conflated the substance of the proposed reforms with a partisan distaste for their current advocates. This is an unjustified attack on the very notion of judicial reform, which can chill a growing Israeli constitutional discourse that is vital to Israel’s stability and prosperity.

One such piece, written by National Review’s Bobby Miller, condemns the proposed judicial reforms as “radical” and presses American legal conservatives — who are particularly well-equipped to inform a debate on balanced and limited government — to dissociate from Israel’s would-be reformers. In a piece elaborating on his critique, Miller distinguished between the reforms and their advocates. But examining the three reforms Miller critiques provides an opportunity to correct some widespread and serious misunderstandings regarding Israeli constitutional discourse — and to emphasize the importance of partnership and discussion with legal conservatives abroad.

One proposal would increase the weight of elected representatives in Israel’s judicial selection — a process which the Supreme Court itself effectively controls today. While conceding that this change would likely be “not just recognizable but justified” to an American originalist, Miller downplays the extraordinary character of the current procedure, especially when coupled with the Court’s potentially boundless policy influence.

Israeli judges are appointed by a nine-member committee, only four members of which represent Israel’s elected branches. Three members are presiding Supreme Court justices, who therefore select their future colleagues, while the last two are lawyers representing the Israeli Bar Association. The legal bloc generally votes together, effectively mooting the preferences of the political minority in most cases. Moreover, appointment to the Supreme Court requires a majority of seven votes — meaning the three judicial representatives alone can “veto” any candidate they disfavor. This is a power they have employed to great effect.

In this matter as in others, Israel is a clear outlier when compared to most democratic and liberal countries. To Miller’s credit, his clarification acknowledges the current procedure’s counter-majoritarian problem and takes issue only with the proposed solution: neutralizing the judicial veto by creating a political majority on the committee. While elected officials in various countries have the power to select or nominate judges, a substantive disagreement on this point is legitimate and welcome, and demonstrates the potential contributions of American legal conservatives to Israel’s young constitutionalism.

Next, consider the proposed abolition of Israel’s “Breach of Trust” criminal offense (for which Netanyahu has been indicted) and a proposed grant of revocable criminal immunity to legislators. The substance of the proposal is certainly worthy of debate, but it is incorrectly portrayed by Miller as a “blatant attempt to place Netanyahu above the law.” In fact, this particular proposal is intended to apply only prospectively, and not to Netanyahu’s ongoing case.

Looking at the relevant history here is illuminating. The “Breach of Trust” offense has been severely criticized by legal scholars since the 1990s, decades before the Netanyahu indictments. Critics include prominent left-wing criminal-law experts such as Boaz Sangero, Miriam Gur-Aryeh, and Mordechai Kremnitzer (former vice-president of the progressive Israel Democracy Institute). Some have argued against the impermissibly vague definition of the crime. Others have focused on the institutional imbalance created by granting prosecutors the power to derail political careers with such a poorly defined charge. And some form of criminal immunity for legislators is not only common in many liberal democracies, but was also the law in Israel until 2005.

The common-law crime of “Misconduct in Public Office,” which serves as the original basis for the Israeli offense, will likely be repealed in the United Kingdom following a report by the governmental U.K. Law Commission, citing arguments similar to those noted above.

Miller’s analysis concludes with a reform he mischaracterizes as “doing away” with judicial review of legislation in a fit of “hyper-majoritarianism.” But despite the Court’s revolutionary constitutional declarations, Israel is a parliamentary democracy founded without a written constitution — and the question of whether we even have an unwritten constitution is still hotly contested. Legislative supremacy is the rule rather than the exception in such a case. In the United Kingdom and New Zealand, for example, judicial review of legislation is limited.

Additionally, while there are various conservative proposals for how to reform judicial review, the one Miller criticizes is a method of legislative override existing elsewhere in the world. Rather than dispensing with judicial review, this mechanism allows parliament to reverse a judicial invalidation of legislation. This approach of institutional dialogue, essentially akin to the Canadian constitutional “notwithstanding clause,” does not contradict judicial review. Nor does it undermine respect for individual rights and minority liberties. It has also been advanced over the years by leading Israeli constitutional scholars and moderate political and public figures.

International partners and perspectives are an essential element of a developing Israeli constitutional discourse. Much of the thoughtful criticism of the Israeli judiciary rests upon foundations of Western and Anglo-American political thought and legal theory. Among these are the core tenets of accountable representative government, the electorate’s prerogative to shape the rules by which it lives, and the rejection of arbitrary exercises of political power by unelected bureaucrats. Israeli legal conservatives have learned much from originalists and the American conservative legal movement, along with everyone else who cherishes the classical-liberal tradition of limited and accountable government. We share many values, and the conversation between us is an important one for the rule of law everywhere.

The Israeli legal system is complicated, and the details matter. Observers ought to reserve judgment when considering the value of existing arrangements and of proposals for reform. More importantly, the need for fundamental judicial reform in Israel transcends the cut and thrust of ordinary political conduct and opinion. It would be a mistake to confuse current politics, warts and all, with the urgent and justified call for far-ranging judicial reform in Israel — and its importance to the flourishing of the world’s only Jewish democratic state.

— Aylana Meisel-Diament founded and chairs the Israel Law & Liberty Forum. She attended Georgetown Law and is a senior director at Tikvah Fund Israel. Yonatan Green is a licensed attorney in Israel and New York, and serves as executive director of the Israel Law & Liberty Forum