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Are we for diversity and democracy, or not?

Next time I don’t like a policy of this country, I’ll just file a motion with the Supreme Court of the United States.

Absurd, no?

Not under Israel’s judicial system. One need not have “standing,” i.e., one need not be a party to a policy to be heard by Israel’s highest court, which rules on policies, not just laws. The elimination of universal standing in Israel is one of the planks of the proposed judicial reform.

“Standing” is not assumed in American law; it must be verified. The question of standing was a key point in several states’ challenge to Biden’s plan to cancel student debt. Did those states have “standing?” That is, could they prove that they were affected by Biden’s order? If so, they are entitled to sue. If not, not. In fact, before the legality of Biden’s order was even addressed, the Supreme Court of the US demanded arguments from the states proving that they had standing. If not, their case would be dismissed without the states’ legal arguments against Biden’s order even being considered.

Jonathan H. Adler, a law professor at Case Western Reserve University, told The New York Times: “State politicians are using state standing as a way of waging what are political or policy battles against the current administration in court as opposed to through the political process.”

In Israel, the professor’s point is entirely moot. People without standing use Israel’s court as a way of waging policy battles all the time. It’s out in the open. It’s the way the system works.

This is because Israel’s office of Attorney General, which has no exact equivalent in the US, ruled, in effect, that standing is irrelevant. One need not have been affected by a government policy to argue against it in Israel’s highest court, which upheld the power of Israel’s Attorney General to so rule.

This is a body blow against democracy because Israel’s highest court has subverted the political process.

It’s simply unnecessary. If I don’t like a given policy, I — i.e., any citizen — can seek redress in Israel’s highest court.

The requirement of standing, as in the US, would enhance Israel’s democracy, not kill it, as the opponents of the reform charge.

Israel’s highest court’s undermining of democracy goes still further: Which judges hear the motion filed by an individual, and on what basis?

First question first. The judges who hear the case are those who are essentially self-selected. Suppose it were up to Justice Roberts and Justice Thomas to rule on whether Ketanji Brown Jackson would serve on the court. That would undermine democracy. Yet, that, in effect, is the current Israeli system for the selection of judges to its highest court: self-selection.

Then, when these judges of essentially the same mind hear a challenge to a government policy, on what basis do they rule? Not on the basis of law, but on the basis of “reasonableness.” If they deem the policy “reasonable,” it’s affirmed as law. If it is deemed not reasonable, the government policy is overridden.

Reasonableness is subjective. Everybody knows that. The point of the rule of law is objectivity, or at least the earnest attempt to achieve it. Otherwise, citizens feel they need to obey only those laws that they themselves deem reasonable. This is at the heart of the proposed judicial reform in Israel: to rid Israel’s highest court of its subjectivity, both in the process of the selection of judges and in their arrogation to themselves over the last 30 years of the right to rule on government policy.

I read a lot that the real point of the judicial reform is to render Israel’s highest court more in line with the views of the country’s growing right-wing majority.

To me, that sounds like: The court is subjective now, keep it that way; just shift direction of the subjectivity by diversifying the membership on the court.

Funny, in the US, we take pride in diversity. We take pride in a Latina woman elevated to the Supreme Court for the first time; or a black women on the court for the first time — or, for that matter, a black male on the court for the first time. That was a huge step forward for the US. Why should Israeli democracy be different? Shouldn’t it be a matter of Israeli national pride if, for the first time, a haredi justice were to sit on its Supreme Court?

I am mystified when, for the first time, a chasidic women becomes a judge and various woman’s groups and others welcome her appointment as a beautiful step forward; yet, these very same circles rabidly oppose any change in Israel’s highest court that would render it more diverse, more “what Israel looks like.” Are we for diversity, or not?

Or is it just that when my favored type is elevated to the court, then I celebrate it in the name of diversity; but when another type could be elevated to the court, not my type, suddenly diversity is out the window?

All well and good, you might say. But what happens when a government policy could cause permanent damage? What would happen, for example, if judicial reform in Israel is passed and the Knesset overrides a Supreme Court ruling protecting, say, some rights of Israeli Arabs? Granted, the government was duly elected in a democratic election, but sometimes democracy itself must be overridden.

What if it makes a horrible decision, such as the recision of certain rights? Shouldn’t we do all we can to stop the government from operating that way?

This question has faced Israel before. It is precisely the question that faced the opponents of Israel’s unilateral withdrawal from the Gaza Strip in 2005. This was, from the point of view of the opponents, a horrible decision with permanent consequences. (Indeed so. Instead of Israeli-Gaza peace, we got Hamas attacks on Israeli civilians and several Israeli-Hamas wars with tremendous loss of life.) Back in 2005, when the proposed unilateral withdrawal from Gaza was on the table, the question became: Should Israeli soldiers who oppose the withdrawal carry out their orders to evacuate the Israeli settlers in Gaza, or should they refuse?

The overwhelmingly predominant answer by the religious authorities, who themselves opposed the withdrawal, was: Carry out the orders! The process of democracy was the superior value, even when it yielded a horrible, permanent decision.

That’s what I’m waiting for on the part of those who oppose this judicial reform: the same commitment to democracy — i.e., to honoring the results of a fair election — even when it seems to them to be making a horrible, permanent decision.

It is not OK to condemn those who would refuse to obey Israel Defense Forces’ orders in 2005, as a matter of principle; but then go ahead and refuse to obey IDF orders in 2023, as a matter or principle.

Either we stick with democracy, even if it makes what seems to us to be a very bad move, or we do not.

Copyright © 2023 by the Intermountain Jewish News



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IJN Executive Editor | [email protected]


One thought on “Are we for diversity and democracy, or not?

  1. Yaakov G Watkins

    52 years ago I worked for campus police in Boulder and a 19 year old male confessed to me ( for no good reason) that he was a draft dodger which was a felony. My supervisor found a way to weasel out of prosecuting him.If they had been honest, they should have prosecuted him. Even now after more than 50 years I am ambivelent about their decision.

    Reply

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