By Michael B. Mukasey
(FEBRUARY 26, 2023 / WALL STREET JOURNAL) Judges and attorneys general throughout the world—I’ve served in both capacities in the U.S.—wield substantial authority. In any sound legal system, such authority is subject to clear, objective limits. That seemingly unexceptional principle might help clarify the debate roiling Israel over the country’s Supreme Court justices and attorney general, and Prime Minister Benjamin Netanyahu’s proposals to change that authority and the method of selecting justices.
Unlike the U.S., Israel doesn’t have a constitution to constrain court rulings. It doesn’t require that a party bringing a case have standing—a direct and personal stake in the outcome of the dispute. In Israel, anyone may file a case on any issue, which raises the ante in the current debate. Nor do Israeli courts recognize the distinction between legal issues—resolved in the U.S. by courts—and policy issues, including military tactics and cabinet appointments, which in the U.S. are left to the political branches.
Moreover, Israel’s Supreme Court has taken on the authority to base its decisions on whatever it determines is “reasonable.” The court has applied even that tenuous standard inconsistently. In 1999, when Prime Minister Netanyahu tried to close the Palestine Liberation Organization’s headquarters in Jerusalem, the court held that the step was unreasonable because parliamentary elections were only months away. But five days before the 2022 parliamentary elections, the court sustained the power of Prime Minister Yair Lapid’s government to enter into an agreement yielding portions of what were claimed to be Israel’s territorial waters to Lebanon.
The Supreme Court’s authority often is exercised in tandem with that of Israel’s attorney general, who serves a six-year term and isn’t part of the elected government. Since 2000, the attorney general’s role as legal adviser to the government has expanded into legal authority over the government. Israel’s courts treat any directive by the attorney general as legally binding on the government. Initially by attorney general directive in 2002, and later by order of the government in 2009, the attorney general has the authority to control the legal advisers within each ministry and government office. In addition, the attorney general may appear in court to argue against the government’s position and can ban the government from seeking private counsel to defend its policies. In such cases, the government’s own lawyer in effect denies it representation.
This allocation of authority can create bizarre situations. On Feb. 2, the Israeli attorney general directed Prime Minister Netanyahu to cease his involvement in “initiatives touching on the legal system, in the framework of the process termed ‘legal reform,’ ” although those initiatives were being pursued by the government Mr. Netanyahu was elected to head. The basis for this directive was a May 2020 decision by the Supreme Court that Mr. Netanyahu must avoid conflicts of interest relating to his continuing criminal trial on corruption charges. Mr. Netanyahu denies the charges, which in any event were known to voters when they elected him. The attorney general seems deaf to the irony of invoking nonstatutory conflict-of-interest principles to halt efforts at reforming her own office.
After the Feb. 2 directive, the Supreme Court chose to hear a petition by a group called the Movement for Quality Government in Israel, seeking to have Mr. Netanyahu declared unfit to govern based on his violation of the May 2020 decision. Mr. Netanyahu must answer the petition by March 12. In sum, the attorney general has cited the authority of the Supreme Court to decide when and to what extent the prime minister may function as prime minister.
This extraordinary scenario is all the more remarkable given that the attorney general is named by a five-member committee consisting mostly of unelected officials, such as a former Supreme Court justice, a law professor and a representative of the bar association. Justices are chosen by a nine-person committee whose membership—including the justice minister, one additional minister and two members of the Knesset—is prescribed by statute. The panel includes three current justices, who vote as a bloc, effectively exercising veto power and letting the court insulate itself from dissenting views.
Mr. Netanyahu’s judicial-reform proposals would bring more democratic representation to the appointment process by expanding membership of the committee to 11, of whom three would be Knesset members and three would be ministers of the elected government. The process would still fall short of the U.S. model of purely political appointments—presidential nomination and Senate confirmation. Mr. Netanyahu would also restrict the attorney general to providing advice and permit the government and each ministry to determine its own legal position in court, represented if necessary by counsel other than the attorney general.
The government’s most controversial proposed change would give the Knesset authority to override a Supreme Court decision, although proponents of this change have said they are willing to abandon it. Critics say this change threatens both the rule of law and democracy itself. But in view of the court’s sweeping self-imposed authority, it is difficult at times to describe the current condition as the rule of law.
Not all the government-sponsored changes are likely to be adopted. Even if they were, they would simply empower a more democratically chosen set of government officers to decide—in the trappings of a legal setting—issues that aren’t actually susceptible to legal analysis, but are essentially legislative policy judgments. This would change the actors but not the masquerade.
Real reform would recognize the distinction between legal issues that can be decided in court and policy issues relegated to the political arena. It would also permit cases to be brought only by parties with a direct and personal interest. That would make the debate less of a struggle over who controls outcomes.
Mr. Mukasey served as U.S. attorney general, 2007-09, and as a U.S. district judge, 1988-2006.
This op-ed was originally published in the Wall Street Journal and can be viewed here.