Zionist Organization of America (ZOA) National President Morton A. Klein and ZOA Director of Research & Special Projects, Liz Berney, Esq. released the following statement:
The Zionist Organization of America is deeply disappointed by ceremonial Israeli President Isaac Herzog for his Orwellian speech on March 15, 2023, falsely claiming to offer a “golden mean” “compromise” – while impliedly threatening “blood in the streets” and actually offering a partisan one-sided far-left proposal that perpetuates the Israeli Supreme Court’s self-selection and dominant, intrusive, undemocratic power over the entire Israeli government, the entire nation and her security.
Wrongly, Herzog mislabeled his far-left undemocratic position as the “people’s framework,” and claimed that his plan would protect the people “from the power of the government.” In fact, the real “people’s framework” is the judicial reforms proposed by the officials whom the Israeli people voted for. And the entity that the people need protection from is the all-powerful Israeli Supreme Court which blithely ignores the law in order to throw Jews out of their homes; allow antisemitic BDS activists to enter the country; tie the hands of Israel’s defenders; give away Israeli maritime territory and gas field to Hezbollah’s control without a required Knesset vote; and allow terrorists to continue to use condemned roadside buildings to shoot at and kill Jewish women and children.
The Israeli presidency is a ceremonial role. Israeli presidents are supposed to remain neutral and out of the political fray, and to put aside their political allegiances (such as Herzog’s former chairmanship of the left wing Labor party). Herzog nonetheless inserted himself into the judicial reform issue, condemning the elected government’s proposals and insisting that they “must pass from this earth,” and urging “compromise” – meaning, watering down the elected government’s reasonable and legitimate judicial reform proposals.
In fact, the government’s reasonable proposals do not go far enough in putting an end to the Israeli Supreme Court’s control over the selection of judges and overreaching, dangerous, undemocratic control over the entire government and country. (See, e.g., “Netanyahu’s Judicial Reform Doesn’t Go Far Enough,” by former U.S. Attorney General Michael B. Mukasey, WSJ, Feb. 26, 2023; and “Israeli Judicial Reforms Are Good for Democracy and Rule of Law,” by Morton A. Klein and Elizabeth Berney, Esq., Jerusalem Post, Feb. 13, 2023.)
The elected governing coalition nonetheless took Herzog at his word, that he sought to serve as an honest broker for reaching some sort of compromise. The governing coalition engaged in lengthy negotiations and discussions with Herzog. But instead of publicly proposing anything resembling his discussions with the elected governing coalition, Herzog then announced a ludicrous proposal (under the guise of “compromise,” a “golden mean,” “people’s framework.” etc.) that keeps the self-selecting far-left judiciary in charge of the entire government, and avoids substantive, positive, democratic change. Specifically, according to reports, under Herzog’s plan:
- The Judicial Selection Committee would be comprised of 11 members: 3 would be judges on the Supreme Court including the Supreme Court president; 3 would be government ministers; 1 would be a Knesset member from the governing coalition; 2 would be Knesset members from the opposition; and 2 would be lawyers approved by the justice minister and Supreme Court President (and hence beholden to the Court which the lawyers practice before and which must approve their appointment).
This would give the left 9 of 11 votes when Israel has a left wing government; and would give the left 7 of 11 votes when Israel has a right wing government. Because 7 votes would be needed to approve a new judge, the left would always remain in control of judicial selection. (Heads, I win; Tails, you lose.) Moreover, because the lawyer members of the judicial selection committee would be beholden to the Court, the Supreme Court would have an automatic 5 votes – which is enough to veto any judicial appointee who does not adhere to the current court’s left wing agenda. In other words, the left and the judiciary would still permanently control judicial selection – an absurd, undemocratic situation found in no other democracy.
- Two-thirds of the judges (8 judges) out ofa panel of 11 justices would be required to strike down a law passed by the Knesset. Given the Supreme Court’s and the left’s continuing control of judicial selection, it would be relatively easy for the 15-judge Supreme Court to find 8 judges to put on a panel to strike down a Knesset law. One seemingly positive proposal is that Israel’s Basic Laws would not be subject to judicial review; however, the proposal also makes it exceedingly difficult to pass any such laws.
- The Israeli Supreme Court would continue to be able to invalidate government and other actions by asserting that the actions violate “human dignity.” The Israeli Supreme Court has abused amorphous “human dignity” assertions to throw Jews out of their homes and interfere with efforts to combat terrorism, among many other bad decisions. This proposal thus leaves the Court with unbridled power to promote their left wing partisan agenda and harm the public interest and security.
- The Court would also still be able to apply its amorphous, nonsensical, abusive “reasonableness” assertions to invalidate government actions (with the exception of ministerial appointments and some ministerial actions). Judges have repeatedly used their personal views as to what is reasonable to impose their own policy preferences and thwart the will of the people’s elected representatives and government agencies. This proposal also leaves the Court with unbridled power to harm the public interest and security.
- The opinions of the Attorney General and his/her deputies (the legal advisers) would still be binding on elected government officials, even including the prime minister and other government ministers. The AG and legal advisers are chosen from the recommendations of a committee dominated by the Supreme Court and parties beholden to the Court. Thus unelected legal advisers would continue to dominate, bind and control Israel’s elected government officials – an absurd situation that no other democratic government would tolerate.
- Ministers would be able to initiate a cumbersome process to try to transfer a legal adviser if the minister had multiple sustained disagreements with the adviser, subject to the approval of a special committee; and to hire separate counsel if the legal adviser refused to represent the minister’s position in court. However, these “concessions” would be unnecessary if Israel adopted the governing coalition’s proposals to enact a sane democratic system, in which the AG and legal advisers work for the elected government officials, as they do in the United States and other democratic countries.
- It would be exceedingly difficult for the Knesset to pass Basic Laws. Basic Laws would require four readings in the Knesset, including a first readings with a majority of 61, a reading of 80 MKs, and a majority of 70 in a subsequent Knesset. Basic Laws dealing with elections would require an 80 MK majority in favor for all four readings. In addition, 80 MKs would be required to amend a Basic Law.
- Herzog’s proposal also had no provision for overriding bad Israeli Supreme Court’s decisions.
In other words, Herzog’s so-called “compromise” would enable the Israeli Supreme Court and the legal advisers under its sway to continue to control Israel’s elected government and thwart the will of the Israeli people.
Judge Robert Bork’s Criticism of Israel’s Supreme Court
Twenty years ago, prominent former U.S. Appeals Court Judge, U.S. Solicitor General and Yale Law School Professor Robert Bork aptly wrote that Israeli Supreme Court Justice Aharon Barak had made Israel into the nation that had the worst “judicial deformation of democratic governance. . . . The Israeli Supreme Court is making itself the dominant institution in the nation, and authority no other court in the world has achieved.” (“Coercing Virtue: The Worldwide Rule of Judges,” by Robert H. Bork, AEI Press, 2003, p. 111.)
Judge Bork further summarized the Israeli Supreme Court’s unique domination of all branches of Israeli government action and even military action, explaining: “Imagine, if you can, a supreme court that has gained the power to choose its own members, wrested control of the attorney general from the executive branch, set aside legislation and executive action when there were disagreements about policy, altered the meaning of enacted law, forbidden the government action at certain times, ordered government action at other times, and claimed and exercised the authority to override national defense measures. Imagine a supreme court as well that has created a body of constitutional law despite the absence of an actual constitution. No act of imagination is required: Israel’s Supreme Court has done them all.” (Id.; See also pp. 111-134 for numerous examples.)
Judge Bork noted that this state of affairs was not always so; and that in Israel’s early years, the Court narrowly interpreted laws and deferred to the decisions of elected branches of government. (Id. at p. 112.) Israel needs to return to those early days of judicial restraint, interpreting the law not ignoring it, and respect for Israeli democracy. President Herzog’s plan clearly does not achieve this.