The Nature of some issues does not lend itself to debate for purely political reasons. Is this or that racial or ethnic group superior or inferior intellectually? Simply to engage in the debate is to tread on the quicksand of racism. Some issues are difficult to debate because the standards for evaluation are imprecise, subjective or inapposite: Jordan or James, Bird or Magic?
And some issues are simply not susceptible to reasonable debate because the disputants can not agree on basic principles. Abortion: If a fetus is a person, there can be almost no reasonable basis for murdering it; if it is an undifferentiated mass of cells, akin to a fingernail, there can be no reasonable basis for regulating its owner’s prerogatives. When one person sees infanticide – “Murderer!” – and another sees a manicure – “Idiot!” – no rational debate can ensue.
Regrettably, the shouting about judicial reform in Israel has reached the volume, intensity and uselessness of these pointless discussions. No one is persuading anyone else. No one is showing any respect for the opinions or positions of the other side. And, as always, in the absence of rational discourse, the threatened alternative is violence and brute force.
A prominent – not necessarily intelligent – corporate lawyer threatens to shoot people. A legislator calls for assassination. Politicians disregard popular protests on the grounds that no one paid any attention to them when they were in the minority. Demagogues take to the street in order to burnish their political profiles. And genuinely committed and genuinely stupid people think that interfering with traffic and making people late for dental appointments is a legitimate way to express an opinion.
The sad thing is that there are strong arguments on both sides and that sensitive, moderate voices could probably mediate the dispute. There are ways to avoid tyranny of the legislative majority and ways to moderate the untethered power of a judiciary in the absence of constitutional constraints. If only people would stop shouting and start listening.
Stop shouting, start listening
First, a few observations: the mutual hatred and contempt evidenced by both sides is the root of the problem. The Left does not view the Right as wrong or misguided but as evil. The Right views the Left as fascists and tyrants. Begin may have detested Ben-Gurion but it is unlikely that he considered him an enemy of the Jews or Israel.
Somehow, the leaders on both sides need to lower the volume. And anyone previously convicted of crimes involving moral turpitude, whether former prime ministers or present MKs, should just shut up; perhaps silence could redeem the embarrassment of their pasts but pretending to have moral legitimacy or trying to acquire moral legitimacy by proposing insurrection is an insult.
The problem is simple. Where the ruling legislative coalition comprises the executive administration, the laws and their enforcement derive from the same source. The only possible restraint on laws or the administration of laws that violate basic rights is the judiciary. But there must be a sound basis for the courts to overturn laws adopted by a duly elected legislature, since it is the legislature, by definition, that speaks on behalf of the electorate.
Netanyahu, Ben-Gvir, and Smotrich are doing exactly what they promised to do if they won the election. And they won the election. What gives the courts the legal or moral authority to reverse their (and by implication, the people’s) strategy and policies?
The role of the judiciary
THE JUDICIARY has no license to legislate based on views not grounded on the law but instead on their subjective notion of what is reasonable. In the absence of a Constitution, the only grounds for overturning laws duly adopted by the representatives of the people is if those laws contravene accepted societal norms of liberty and justice.
In a Constitutional environment, those norms – freedom of speech, association, religion, and the like – are enumerated, though courts have occasionally expanded them by searching for penumbras, like privacy. Reasonable people should be able to agree on a circumscribed set of fundamental minority rights. We pretty much already know what they are. And the judiciary should have no right to overturn duly adopted legislation that does not affect those rights.
In the United States, “separate but equal “ was held constitutional in Plessy v. Ferguson, and remained so until, without any change in the Constitution, it was held unconstitutional in Brown v. Board of Education. And abortion, universally prohibited in every state for hundreds of years, was suddenly found to be Constitutionally protected in Roe v. Wade, until this year, when the judicially created right was overturned, with the power to regulate abortion returned to the states. If that is so in a constitutional environment, it will be even more so where there is no guiding constitution.
But no one doubted that those issues rose to the level of judicial review. Reasonable people could determine a set of fundamental rights subject to judicial review. If the court intervenes in other matters, the legislature should have a way to preserve its decision, as in the case of a veto issued by an independent executive. At some point, the majority needs to rule, even if it requires a supermajority
Similarly, reasonable people could devise a way to appoint judges that do not afford the sitting judges a veto. A self-perpetuating court that is not susceptible to change is not democratic or fair. An elected judiciary is an abomination.
An appointed judiciary, with some consensus advice and consent from a broad constituency, is politically legitimate and likely to be balanced. If not 61 votes, perhaps 75. Perhaps a broader constituency of judicial nominating committees and larger thresholds for approval.
Elections have consequences, and minorities have rights. No one, neither side, disagrees with these principles. But sadly, we have arrived at the point where people actually prefer to make dehumanizing attacks on people with whom they disagree than to offer dignified defenses of firmly held positions. There is nothing wrong with being aligned on different sides of this issue. It is a real issue and passionate engagement is entirely justified.
What if we said, “I understand your position. Let’s clear a place in the rubble the demagogues have created and find a middle ground where we can proudly stand.”
The writer, now retired, served as the global head of the Greenberg Traurig corporate and securities practice, as well as the founder and first managing partner of the firm’s Tel Aviv office. He amuses himself by writing trenchant commentary for the highly discerning reader.