Analysis from Israel

If there’s one thing that infuriates me about Israeli leftists, it’s that they spend so much time howling about nonexistent threats to Israeli democracy that they have no credibility left when they actually warn about real ones. Two controversial legislative initiatives of the past week–one a genuine problem and one a manufactured one–exemplify the problem.

The manufactured crisis, which has the entire left in an uproar, begins with the fact that the Judicial Appointments Committee is reportedly deadlocked over the choice of new justices to fill the four Supreme Court vacancies that will open next year. Justice Minister Ayelet Shaked has strongly implied that, if this impasse isn’t resolved, she will back another legislator’s bill to change the appointments system. The current system requires Supreme Court appointments to be approved by at least seven of the appointments committee’s nine members, while the bill would allow such appointments to be approved by a simple majority of 5-4.

According to liberals, this proposal is massively undemocratic. Leftist MK Shelly Yacimovich, for instance, accused Shaked of “unruly and destructive behavior … toward the justice system.” Opposition leader Isaac Herzog accused the bill’s proponents of seeking to purge “the judiciary, the media, all criticism and fair democratic processes.” A Haaretz editorial termed the proposal “another step in the trampling of the proper balance among the branches of government” and an effort to undermine the court’s ability to protect “human rights and fundamental democratic principles.” And Supreme Court President Miriam Naor, who accused Shaked of putting “a gun on the table,” announced that she and her two judicial colleagues on the appointments committee will henceforth boycott negotiations aimed at trying to end the impasse.

But here’s the incredible thing: The simple-majority system that the bill proposes was, in fact, the one in place for more than five decades. The law was amended eight years ago to require a majority of at least 7-2 for Supreme Court appointments. In other words, what the left considered a perfectly appropriate and democratic system for all the years until 2008 is suddenly a major threat to democracy.

If you actually believe the simple-majority system is undemocratic, it would mean that every Supreme Court until 2008 was appointed via an undemocratic and illegitimate process, and therefore, none of its rulings should be considered valid. In addition, since many current justices–including Naor and both her colleagues on the appointments committee–were appointed prior to 2008, they too would be illegitimate, undemocratic appointees, so all current Supreme Court rulings would also be illegitimate and invalid. Is that what the left, the court’s self-proclaimed champion, actually wants?

Moreover, legislation gets repealed all the time when it turns out that what seemed like a good idea in theory doesn’t work in practice. In this case, Shaked’s argument is that the new system has created a deadlock that’s preventing the vitally needed appointment of four new justices–more than a quarter of the 15-justice court. That’s at least arguably a serious enough problem to justify a legislative remedy. Or is the left suggesting that legislation, once passed, must remain on the books in perpetuity, even if it proves detrimental?

As it happens, I think Shaked is wrong on the merits. The amendment was sponsored in 2008 by her fellow conservative, Gideon Sa’ar, for two reasons. First, it’s simply more appropriate for Supreme Court justices to be appointed with wide support than by a narrow majority. Second, the bill’s main purpose was actually to protect conservative interests: Given the composition of the appointments committee, which consists of four politicians, two Bar Association representatives and three sitting justices, conservatives are in the minority on the panel far more often than they’re in the majority. That’s because the three justices are almost always liberals (in the sense of favoring judicial activism), while the other six seats float. Requiring a seven-vote majority thus made it much harder to appoint ultraliberal candidates during times when liberals were in the majority. And neither of these reasons has lost its validity just because conservatives now hold a temporary majority on the panel.

But the fact that I disagree with something doesn’t make it undemocratic–a basic truth that most Israeli leftists unfortunately have yet to grasp. They have a nasty habit of deeming any proposal they dislike “anti-democratic.” And in this case, as with the vast majority of what they deem “anti-democratic,” nothing could be further from reality.

The problem is that once in a great while, they’re actually right–as is the case with another bill that hit the headlines over the past week. That bill, sponsored by the government, would expand the defense minister’s powers to impose movement restrictions and other restrictions on Israeli citizens whom he deems a threat to national security or the public welfare. It’s an appalling idea (though I suspect it ultimately won’t pass), and leftists are fully justified in raising a storm about it. I only wish conservatives were doing the same.

But after years of ranting about nonexistent threats to democracy like the Shaked proposal, leftists have destroyed their credibility, with the result that most Israelis simply tune them out. It’s the old problem of the boy who cried wolf: Raise false alarms often enough and no one will believe you when a real one comes.

Israel thereby loses out twice over: Leftists tarnish its image overseas by repeatedly making false claims of anti-democratic legislation, while also destroying their ability to raise justified alarms about the occasional real problems. It’s the worst of all possible worlds. And it’s precisely why Israel desperately needs a sane, responsible left rather than the one it has.

Originally published in Commentary on November 6, 2016

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Israel’s constitutional crisis has been postponed, not resolved

After years of leftists crying wolf about democracy being endangered, Israel finally experienced a real constitutional crisis last week. That crisis was temporarily frozen by the decision to form a unity government, but it will come roaring back once the coronavirus crisis has passed.

It began with Knesset Speaker Yuli Edelstein’s refusal to let the newly elected Knesset vote to replace him as speaker and culminated in two interventions by the High Court of Justice. I’m one of very few people on my side of the political spectrum who considers the court’s initial intervention justifiable. But its second was an unprecedented usurpation of the prerogatives of another branch of government, in flagrant violation of legislation that the court itself deems constitutional.

Edelstein’s refusal, despite its terrible optics, stemmed from a genuine constitutional concern, and was consequently backed even by Knesset legal adviser Eyal Yinon, who had opposed Edelstein many times before and would do so again later in this saga. The problem was that neither political bloc could form a government on its own, yet the proposed new speaker came from the faction of Benny Gantz’s Blue and White Party that adamantly opposed a unity government. Thus whether a unity government was formed or Prime Minister Benjamin Netanyahu’s caretaker government continued, the new speaker would be in the opposition.

But as Yinon told the court, speakers have always come from the governing coalition because an opposition speaker can effectively stymie all government work. And once elected, he would be virtually impossible to oust, since 90 of the Knesset’s 120 members must vote to do so. An opposition speaker would thus “hurt democracy,” warned Yinon. “We’re planting a bug in the system, and this, too, undermines our constitutional fabric.” That’s why Edelstein wanted to wait, as Knesset bylaws permit, until a government was formed and could choose its own speaker.

Yet despite this genuine and serious concern, the fact remains that a newly elected majority was being barred from exercising its power. Moreover, it had no parliamentary way of solving the problem because only the speaker can convene parliament and schedule a vote. Thus if you believe majorities should be allowed to govern, the court was right to intervene by ordering Edelstein to hold the vote.

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