Yesterday, I wrote a piece on why legal conservatives in the U.S. should avoid making common cause with Israel’s radical legal-reform movement. These judicial jacobins now appear poised to fulfill their objectives, with former prime minister Benjamin Netanyahu’s bloc headed for a commanding comeback victory. In preparation for the legal-reform efforts coming down the pike, it’s important to distinguish between changes that American originalists ought to support and those that should be beyond the pale.
In recent decades, the Israeli High Court has clearly grown too big for its britches. For example, the Court uses a method of statutory interpretation that even allows it to ignore the statutory text. Additionally, it can simply waive standing requirements when quasi-constitutional basic laws are at issue; it has no restrictions on subject-matter jurisdiction; and, perhaps most striking, Israeli judges are appointed by a committee where the majority of votes are High Court justices and attorneys who argue before them. Since a mere simple majority of nine committee members is needed to appoint judges to Israel’s magistrates and district courts, and seven out of nine are required to select a High Court justice, this absence of alternative stakeholders has rendered the Israeli judiciary an unaccountable self-licking ice-cream cone. One need not go as far as Bezalel Smotrich’s proposal, which would give the government the power to nominate six of the nine seats on the committee, to remedy this issue.
“Proposals for judicial reform have a long history in Israel and have traditionally come from individuals on both sides of the aisle who recognize the immense power of the judiciary,” says Aylana Meisel, chairwoman of the Israeli Law and Liberty Forum, an Israeli group modeled after the Federalist Society. “Unfortunately, the big push for reform today is coming mostly from the Right, feeding a mistaken narrative that this bloc is out to quash Israel’s liberal democracy. Whether one agrees with the substance of the proposals, it is neither extreme nor novel — and it is part of a developing Israeli constitutional discourse whose growing diversity is welcome.”
Meisel is not wrong, and her organization’s intentions are undoubtedly pure. But originalists should nevertheless be weary of being duped into getting behind radical proposals that will immunize one man from prosecution and evirate the Israeli judiciary entirely.