Was Moshe Landau a Fascist? Why opposition to Court reform in Israel is the real threat to the nation’s democracy. by Kenneth Levin
https://www.frontpagemag.com/was-moshe-landau-a-fascist/
“[I]f the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made…the people will have ceased, to be their own rulers…”
Abraham Lincoln
Moshe Landau was President of Israel’s Supreme Court from 1980 to 1982. In 2000, he wrote of subsequent Supreme Court President Aharon Barak’s record of arrogating more and more power to the Court: “I think that… Barak has not, and does not, accept the rightful place that the court should have among the various authorities in our regime.… [Instead, he is seeking] to interject [into all areas of Israeli life] certain moral values as he deems appropriate. And this amounts to a kind of judicial dictatorship that I find completely inappropriate.”
Was Israel not a democracy during the four and a half decades before Barak’s ascent to the Supreme Court’s presidency and his choreographing what in short order became the court’s unlimited supremacy within Israel’s governmental system? Was Landau’s assessment completely wrong and his criticism of Barak an attempt to perpetuate prior anti-democratic governance? Was it only Barak’s establishing of judicial supremacy that rendered Israel finally a democracy?
This seems to be the conviction of the large numbers of Israelis who oppose judicial reform to rein in the power of the Supreme Court and who not only argue that reform will destroy Israel’s democracy (and not infrequently accuse its supporters of fascism), but who have demonstrated multiple times a week in the hundreds of thousands, closed down highways, blocked access to Ben-Gurion airport, vowed to refuse IDF reserve duty, sought to close the port of Haifa, picketed politicians’ homes and promoted mayhem in other ways, all in the service of blocking reform.
But, in fact, there is little in the Israeli Supreme Court’s present powers and prerogatives that resonates with the concept of democracy.
There is no precedent in Western democracies for a court to assert whatever authority it chooses over any aspect of a nation’s political life without any checks or balances.
Among the constraints elsewhere is, of course, in many cases the existence of a constitution that defines and limits the powers of each branch of government, including the judiciary. The limits on the judiciary typically include its only being able to invalidate a law on the basis of the law’s being a violation of the constitution. Further, if the court invalidates a law as unconstitutional, it is possible to amend the constitution to counter the court’s decision. Also, in most democracies, the legislature and/or the executive branch plays some role in selecting justices, representing another constraint on the court vis-a-vis other governmental branches. In addition, courts typically only take on cases in which the petitioner has some standing – that is, is personally affected by the issue at hand. Also, courts only address cases that are deemed judiciable, where the legal questions are amenable to being resolved by the court rather than by some other arm of government.
None of these constraints exists in Israel in the wake of Barak’s expansion of the authority of the Supreme Court. Israel has no constitution. It has basic laws, which were never construed, at the time of their passage, to represent a constitution, nor entailed any mechanism for legislative approval different from that for other laws, but which do address in broad terms issues of basic rights and government principles. Barak declared that, contrary to the understanding of those who enacted them, the basic laws, with their broad statements of principle, do represent a constitution and that their specific meaning is whatever he and his fellow justices decide it is. In addition, he declared that on this basis he can strike down whatever laws he deems in conflict with the constitution as it exists in his head. And rather than considering only cases brought to the court by someone with standing, and only cases that would generally be considered judiciable, he established that the court is free to consider any issue it chooses, even if not brought to the court by someone with standing or by anyone, and that every issue is judiciable. Further, he declared and established that a principle for deciding issues before the court is “reasonableness,” which has no meaning or definition in law but which is, once again, whatever he deemed it is.
All Barak’s successors as President of the Supreme Court have reaffirmed and acted on these prerogatives and powers.
In addition, Barak and his successors have all exercised their authority with a clear and consistent political bias. That bias can be seen in his instructions to Israeli jurists. In “Interpretation in Law” (1994), Barak wrote that when confronted by what seems to them a conflict between “democratic” and particularist Jewish values, the judge “should act as the enlightened community would.” He then explains: “The metaphor of the ‘enlightened community’ focuses one’s attention on a part of the public. One’s attention is turned…to the educated and progressive part within it. What distinguished the enlightened community from the rest of the public?.… The enlightened community represents that community whose values are universalistic, and which is part of the family of enlightened nations.”
In effect – even putting aside the boldly elitist, anti-democratic thrust of the assertion that the views of only a particular segment of the population should shape legal interpretations – Barak is instructing jurists to be guided in their rulings by those Israelis who embrace the post-Zionist agenda and are eager to strip the nation and its institutions of all Jewish particularist meaning and content. It not only repudiates the nation’s declaration of independence, which established Israel as a Jewish and democratic state, but even challenges the concept of Israeli statehood, suggesting that the legal system should be guided by a transnational standard of progressive, supposedly enlightened, universalist principles.
(There is an unsurprising but depressing irony that so many in Israel are at the present moment rallying around this comprehension of proper Israeli jurisprudence and the concept of judicial supremacy, and are declaring the court, as Barak conceived it, sacrocanct. The irony lies in that presently Barak’s vaunted “universalist progressive, educated, enlightened community” as represented, for example, by American academia, is America’s chief institutional purveyor of anti-Semitism, increasingly promoting Jew-hatred on the basis of Jews being white and therefore privileged and being overwhelmingly committed to integration while the progressive, enlightened, educated community has increasingly been embracing and advancing the primacy of race and ethnicity and the Balkanization of society along racial and ethnic lines.)
In the wake of the judicial revolution initiated by Barak, the President of the Supreme Court is the most powerful individual in the Israeli governmental system and there are no checks on his or her power. Some in Israel see the problem as lying primarily with the holder of that office being neither elected nor appointed by elected officials and therefore achieving that power by means disconnected from the democratic process. But the problem would be no less if that power were vested in an elected official. Unchecked power is undemocratic however it is attained.
But the manner of Israel’s selection of justices does play an essential role in sustaining what Landau characterized as a judicial dictatorship.
For the first five years of Israel’s statehood, justices were selected by the Justice Minister with the approval of the Knesset. In 1953, this was changed to a selection committee consisting of three members of the Supreme Court, two representatives of the Israeli bar association, the Justice Minister, another cabinet member, and two Knesset members, typically one from the ruling coalition and one from the opposition. An appointment required the approval of five committee members. In 2007 this was changed by the Knesset to requiring the approval of seven members, so as to prevent an appointment being made without the agreement of any of the elected representatives on the committee. (All lower judgeships are also selected by a committee of this composition, but by the approval of a simple majority.)
The process from 1953 onward has meant that the Supreme Court and its President (who decides which three court members will be on the committee) effectively had – as the bar association members have typically voted with the court members – and even more firmly since 2007 has, a veto on appointments. This may have been less of a problem before the Barak revolution and its creation of a much more activist and politically biased court, and a court that wields unchecked power. But it now means that the court’s powers and biases and its activism are self-perpetuating. (Indeed, Barak has been cited as even defending the enforcement of groupthink among justices via control of the selection process by asserting that this was necessary to preserve supreme court members’ collegiality.)
The 2007 introduction of the requirement that seven committee members agree on appointments has meant that the supreme court’s veto is absolute; but it has also meant that at least two of the Knesset-related members on the committee must agree to any appointment. In the face of consequent possible stalemates to fill court vacancies, there have been instances in which the judicial bloc has accepted the accession of a right-of-center appointee along with a leftist appointee. But the court remains overwhelmingly supporters of Barak’s revolution and continues to be in essence self-perpetuating. It should also be noted that even if one or two among the court’s fifteen justices think differently, cases are typically heard and ruled upon by only a few justices. The President of the court decides who those few are, and so he or she can make certain that any ideologically significant case is heard and decided upon by justices who embrace Barak’s vision and biases.
A telling illustration of the Court’s dedication to self-replication and blackballing of candidates who think differently, even if they are from the left of the political spectrum, is the case of Ruth Gavison, who was nominated to the court in 2005. Gavison, now deceased, was a distinguished and frequently honored law professor at Hebrew University, a winner of the Israel Prize, and a co-founder of the Association for Civil Rights in Israel. But she was critical of the Barak-transformed court’s activism and characterized its appropriation of supreme power as anti-democratic.
Gavison favored Israel’s having a constitution. But she wrote, some years prior to her Court nomination:
“… Israel is a rifted society. A constitutional order in a society like that should be a matter of some give-and-take on framework principles, adopted as a package deal with checks and balances, after some public debate, in a special process, and based on a broad consensus. All these features of constitution-making were absent in [Barak’s revolution]…” She went on:
“At the moment, what seems to be happening is that the rifts in Israeli society, which until now were hardly noticeable with regard to the court, now reach the court itself [with its appropriated powers]. The court is now perceived by a larger part of the population as a political player like any other, and not a neutral body seeking to be a part of the framework adhered to by all, irrespective of their partisan allegiances. Even if the pressure to politicize appointments can be resisted, it is going to be hard to re-establish the vision of the court as a defender of all.”
Despite her credentials, Gavinson’s critical voice was blackballed as the Court exercised its veto.
Those on the Left in Israel, who widely support the current system, argue with regard to selection of justices that having the selection committee not predominantly made up of elected officials renders the court more independent. But the arrangement, in fact, corrupts the nation’s entire legal system. Ambitious members of the legal profession, including lower court judges, who aspire to one day be appointed to the Supreme Court, know they will have to establish a professional track record that conforms to the biases of the self-perpetuating court. Not everyone will bend to this corrupting pressure, but the pressure is certainly there. In a system where elected officials dominate the selection of justices, as in the United States, anyone aspiring to attain ultimately a place on the Supreme Court does not know what political permutation of, for example, nominating President and confirming Senate will control the selection process at any given time and there is not the corrupting pressure on one’s career that such knowledge would exert and does exert in Israel.
The role of Israel’s attorney general, and the manner of his or her selection, is an additional element of Israel’s judicial dictatorship. Since 2000, appointments are based on the recommendations of a five-member panel consisting of a retired supreme court justice, a former justice minister or attorney general, a Knesset member, a member selected by the Bar Association, and a legal expert chosen by the heads of Israel’s law schools. As with judgeships, the selection process is dominated by non-elected panel members drawn from the supreme court and other arms of the legal profession.
Also, in 1997, the role of the attorney general was changed from his or her being simply legal adviser to the government, as it typically is within Western democracies, to being guarantor of the rule of law in all branches of the government. Analogous to the repeatedly expanded authority of the Supreme Court as choreographed by Aharon Barak, this authority of the attorney general has been expanded further to proffering the government binding advice on legal matters and allowing the government no access to other legal advice. Unlike in any other Western democracy, Israel’s attorney general is an agent of the justice system. The legislative and executive branches are permitted no independent legal representation, and all branches of the executive are similarly subject to binding advice from deputy attorneys general and forbidden access to independent counsel. As one Israeli legal expert observed: “There is no such thing, to the best of my understanding, in any other place. The legal situation in Israel is not a minority opinion, but rather a single opinion, and it seems to me that a chasm – not just a disagreement – lies between it and the legal situation in any comparable country.”
For all the talk from opponents of reform that reform will mean the end of Israel’s democracy, there is among many opponents a recognition that the court’s unchecked powers and prerogatives, even aside from its activist wielding of them, is not consistent with democratic governance. The issue is that the court’s exercising of its powers is to their political liking and so they regard the nation’s judicial dictatorship a benign dictatorship which they much prefer to a democratically elected government dominated by the Right.
Opponents, while typically ignoring the reality that the present situation constitutes a judicial dictatorship, have argued that the proposed reforms would establish a parliamentary dictatorship. They point, for example, to the proposal, moving forward in the Knesset, that a simple majority in that body would be sufficient to override a Supreme Court ruling against the legality of a Knesset-approved law. Certainly, as suggested above, the goal of reform should not be to replace an unchecked judiciary with an unchecked legislature. But the government has indicated a willingness to compromise on the requirements for a Knesset override and the opposition has refused to discuss compromise. (It should be noted that in a number of other democracies, including the United Kingdom, the parliament is legally sovereign and the courts cannot nullify its legislation. The role of the relevant courts is to interpret the laws, not to rule on their legality.)
Also, the opposition has frequently noted that only twenty laws have been overturned by the Supreme Court since it has assigned itself the right to strike down laws. They say that this underscores that the government’s concerns about such Supreme Court steps are overblown. But overturning 20 laws is not insignificant. More troubling, though, is the fact that the “only twenty laws” argument is disingenuous. In fact, since being given such expansive powers, attorneys general have made a practice of informing Knesset members preemptively that legislation they intend to introduce is “illegal” and have done so with the implicit threat that a Knesset member who nevertheless proceeds with such proffered legislation might face legal action against him or her. This has intimidated members and appears to have precipitated the withdrawal of proposed legislation in more than a hundred instances.
In any case, particularly given the government’s asserted willingness to discuss with the opposition the proposed judicial reforms and to compromise on details, why the opposition’s refusal for months to negotiate? It argued that the government was rushing changes through and foreclosing the possibility of negotiation and compromise. But even if it disbelieved the government, why not test it?
The intense anti-reform rhetoric of the political opposition has been even more curious given that opposition leaders have at other times explicitly recognized at least some of the major problems with the Supreme Court that the reforms are seeking to address. One would think that, even if opposed to details of the government’s proposals, this convergence of concerns would have redounded to a greater inclination to negotiation and compromise rather than vehement refusal and extremist rhetoric. Yair Lapid, for example, has been quoted as declaring, in 2016: “I have opposed, and I still oppose, judicial activism of the sort introduced by Justice Aharon Barak. I don’t think it is right that everything is justiciable. I don’t think it is right for the Supreme Court to change fundamental things in accordance with what it refers to as the judgment of ‘the reasonable person.’ That’s an amorphous and completely subjective definition that the Knesset never introduced to the legal code. It’s not right in my mind that the separation of powers, the sacrosanct foundation of the democratic method, should be breached by one branch of government placing itself above the others.” Lapid made similar statements in subsequent years.
But despite this, Lapid and others in the opposition insisted they would negotiate on the details of judicial reforms only if the government’s proposals were withdrawn and frozen for sixty days. And they offered nothing in the way of what to them would be acceptable compromises. The demand for months of delay seems clearly to have reflected not an interest in negotiation but a hope of precipitating the government’s fall in the interim.
And why the intense venom, particularly, again, given the wide acknowledgment of the need for some reform? Why the cheering on of chaos in the streets and on the highways, the talk of civil war, the seeking virtually to close the country down, the smear of the prime minister as a Hitler and of a president who would seek negotiation as a Chamberlain (that by a former prime minister), the threats on the prime minister’s life and on that of others, the refusal of military duty; the playing fast and furious with the nation’s future?
The explanation lies in a predilection among the establishment Left in Israel to perceive election losses not simply as part of the political ebb and flow characteristic of democracies but rather as an illegitimate assault on the proper order of things. This comprehension has in turn deep roots in Israel’s political history.
For the three decades before Israel achieved independence, the Yishuv, the Jewish community in the Mandate, was led by the socialist Left. The same leadership controlled the state for the first three decades of its existence. Menachem Begin’s victory in 1977 was viewed by that leadership and its constituency as an intolerable usurpation, a wresting of the nation from its proper owners.
An exchange in the wake of the Likud victory illustrates this mind-set. Itzhak Ben Aharon, a former Labor member of the Knesset and, at the time of the election, head of the Histadrut Labor Federation, was interviewed on television about the accession to power of the first non-Labor government. His response: “The results are a mistake.”
To which the television interviewer observed: “But Mr. Ben Aharon, this is a democracy and the people have spoken”
Ben Aharon’s answer: “The people are wrong.”
Over the next twenty-five years, Likud either headed the government or was a partner with Labor in national unity governments. During these years the conviction that Israel had no peace partner among Palestinians, that it either had to negotiate with Jordan over the territories or await the emergence of a Palestinian leadership not dedicated to terrorism and Israel’s destruction, gradually dissipated in the thinking of many within Israel’s Left. It was replaced by a sense among many, particularly within Israel’s academic, media, cultural and even political elites, that sufficient Israeli concessions would win Yasser Arafat and the PLO away from terror and that the main obstacle to peace was the political power of the less open-minded, less sophisticated Likud leadership and its constituency. If the government could be wrested back by a more conciliatory Left then peace could be won. Despite ongoing terror, and Arafat’s making clear that the Palestinian goal was still Israel’s annihilation, this delusion took hold and engendered Israel’s pursuit of the Oslo debacle. The debacle unfolded at the same time as, and was philosophically in tune with, Aharon Barak’s judicial revolution.
In the wake of Arafat’s launching of his terror war in 2000 – which over the subsequent several years cost more than 1,000 Israeli lives lost to suicide bombings and other attacks on buses, restaurants, hotels, busy city intersections and elsewhere, and maimed thousands more – many Israelis were disabused of their post-Zionist delusions and moved rightward in their political views. The unilateral withdrawal from Gaza in 2005, and the numerous wars triggered by Hamas rocket barrages that have followed on leaving Gaza, have pushed additional Israelis rightward
Among the left-leaning constituency that remains, the elites are even more over-represented than in the Oslo era. For the Left and those elites, the Supreme Court, its biases and its unchecked powers, have been embraced as their counter to the electoral strength of the Right. The prospect of the powers of the Court being circumscribed is seen by many of them as a gain for the undeserving and a loss for those who are the nation’s proper owners. Consistent with this, the pro-reform Right has seen the judiciary as the elites’ means of negating their votes, and this has generated considerable resentment on the Right.
It is not that the pro-reform camp is made up entirely of people on the Right and anti-reform camp of those on the Left. There are right-leaning and centrist Israelis among the latter and left-leaning and centrist Israelis among the former. But the Right-Left distinction, and its history as summarized above, goes far towards accounting for the venom and ugliness that has accompanied the current dispute around court reforms, particularly the civil strife and calls for extreme and even violent measures associated with alarmist claims by the anti-reform camp that the proposed reforms will be the death-knell of Israel’s democracy.
Many reasonable voices, such as that of Alan Dershowitz, emeritus professor of law at Harvard University and a leading Constitutional lawyer, insist that the proposed reforms will have essentially no impact on Israel’s democracy, even as some of those voices, including Dershowitz’s, are critical of significant aspects of the reforms. But the “death of democracy” canard has influenced how even many typically moderate commentators have weighed in on the dispute.
In early February, Daniel Gordis, Yossi Klein Halevi and Matti Friedman published in The Times of Israel an open letter to American Jews urging them to stand up and voice their opposition to the supposedly anti-democratic reforms; what they characterize as the “war against our democratic values and institutions” being pushed by the government coalition. The three authors do not address specific elements of the proposed reforms or seek to relate them, for their Jewish American audience, to the institutional arrangements governing America’s Supreme Court.
Consider, for example, the current arrangement for Supreme Court appointments in Israel. American Jews are overwhelmingly on the Left of the political spectrum and today’s U.S. Supreme Court leans Right, with what is usually characterized as a 6-3 conservative advantage. Clearly the following scenario is impossible given America’s constitution, but what if the Supreme Court were somehow to engineer a change in the manner of Justice selection. What if it were changed from the present arrangement in which the President nominates and the Senate must approve an appointment to one in which sitting Supreme Court justices play a major role in and have a veto over any nomination, thus rendering the Court’s conservative leanings virtually self-perpetuating. No doubt a wide majority of American Jews would oppose such an arrangement, Yet that is the arrangement in Israel, the arrangement whose reform the three authors characterize as a “war against our democratic values and institutions.”
Nor do the authors note for their Jewish American audience that American leaders have long recognized the threat to democracy posed by a Supreme Court claiming unchallengeable finality for its decisions, a status superseding other branches of government and transcending any system of governmental checks and balances. For example, Abraham Lincoln wrote that “[I]f the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made…the people will have ceased, to be their own rulers…”
To cite another example of the dishonest rhetoric employed by those, including moderates, embracing the “death of democracy” claims against the proposed judicial reforms: In early March, Daniel Gordis, as a teaser for one of his “Israel from the Inside” podcasts, wrote that he would be interviewing Moshe Koppel. Koppel is Chairman of the Kohelet Policy Forum, which has long advocated judicial reform to establish limits to the Supreme Court’s currently unchecked powers and bring its powers more in line with that of comparable courts in other democracies. Kohelet played a role in shaping the government’s proposed reforms, although Koppel has expressed reservations about some of the reforms in their current iteration.
Gordis wrote of the upcoming podcast: “… I asked Professor Koppel if, were the currently proposed legislation to pass, it would be possible for the Knesset to close all mosques or non-Orthodox synagogues, with no Court to push back. He acknowledged that it could. Similarly, I noted, by a vote of 80 Knesset members, the Knesset could extend its own term as much as it wanted, and again the Court would have no power to intervene.
“Professor Koppel acknowledged that both of those scenarios would be possible under the legislation that Justice Minister Yariv Levin and Constitution Committee Chairman Simcha Rothman are pushing, but he of course had an explanation of why he isn’t worried.”
Gordis’s point obviously is to emphasize the potential risks of a Knesset whose legislation is immune to any checks, particularly to being undone by the seemingly soon-to-be-circumscribed authority of the Supreme Court. The argument is disingenuous in that nowhere – at least nowhere that I have seen – has Gordis pointed out the comparable risks of the present situation where the nation has a supremacist Supreme Court with no checks on its powers and decisions. Gordis might have asked – particularly given Barak’s mantra of the necessity of legal decisions being guided by the enlightened community and its universalist values, his subsequent introduction of the concept of reasonableness as a guide to court rulings, and the embrace of those principles by his successors on the Court – what if the current Court were to declare that, consistent with those principles, the nation must strip itself of all official particularist Jewish accoutrements, including for example, its flag, its national anthem, its Law of Return; the state could be construed as “Jewish” only in the sense that, at least presently, Jews form a majority of its population. What if the Court essentially struck down the legal buttresses of the entire Zionist project. Couldn’t it do so without the Knesset having any check on its ruling. The honest answer, like that to the hypotheticals posed to Koppel, would of course be that it could. To speak of the threats of proposed reforms without acknowledging the threats in the present governmental arrangements is disingenuous at best.
The above discussion says nothing on what would be the best legal steps to reform Israel’s present judicial dictatorship; how to do so in a way that provides a system of effective checks and balances for all branches of the government. As Ruth Gavison argued, the nation would best be served by a Constitution that, among other things, enshrined such a system, and that was arrived at with broad consensus. But a Constitution is not presently in the offing and the nation must legislate reforms that entail answers to the problems of checks and balances short of a Constitution. That so many in the nation, rather than seeking negotiations over reforms, instead condemn the entire reform effort as an assault on democracy, is dishonest in the extreme. That they in this manner justify not simply rallying in the hundreds of thousands but threatening officials and their families, sinking to “Nazi” analogies, closing highways and seeking to close the nation’s airport and major seaport, refusing reserve duty and thereby putting the nation at greater military risk, compounding that risk by forcing the diverting of police and IDF forces to containing their orchestrated mayhem, is a national disgrace.
Where the rejectionist-induced chaos will end, and how much destruction will be left in its wake, is difficult to see at this time. But if it ends with reform efforts quashed and the judicial dictatorship in place, then Israel will remain a nation whose institutions fall painfully short of the democracy its declaration of independence, in its reference to “Jewish and democratic,” proclaims as its aspiration.
Kenneth Levin is a psychiatrist and historian and author of The Oslo Syndrome: Delusions of a People under Siege.
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