Biden’s Glaring Double Standard on “Court Reform” in U.S. and Israel

Even as Democrats lament the need to “rein in” the supposed excesses of the U.S. Supreme Court, they have taken precisely the opposite approach when it comes to the judicial “crisis” in Israel.

Since the U.S. Supreme Court ruled against the constitutionality of racial preferences in college admissions, following its previous overturning of Roe v. Wade, Joe Biden and his fellow Democrats have had much to say about the illegitimacy of these decisions, and by extension the Court itself. Some have even called for “packing” the Court with three or four more justices so as to reverse its recent decisions, ostensibly in the name of “democracy.”

Even before the Court overturned Roe, Senate Majority Leader Chuck Schumer led a mob up the steps of its building to warn that if the Court took such a step, it would have “hell to pay.”

But Democrat leaders have not consistently adhered to such concerns about excessive judicial independence from the democratic political process. To the contrary: ever since Israeli Prime Minister Benjamin Netanyahu introduced a plan to reform his country’s judiciary, which has far less accountability to the people than its American counterpart, Biden and other Democratic leaders, backed by prestige media like the New York Times, have been full of advice warning Netanyahu against that course.

Indeed, since this past February, following Netanyahu’s announcement of the plan, Biden has used New York Times columnist Tom Friedman as his conduit for sending messages to this effect. On February 12, Biden sent a statement to Friedman which read, “The genius of American democracy and Israeli democracy is that they are both built on strong institutions, on checks and balances, on an independent judiciary” and “building consensus for fundamental changes is really important to ensure that the people buy into them so they can be sustained.”

Friedman noted that it was “the first time I can recall a U.S. president has ever weighed in on an internal Israeli debate about the very character of the country’s democracy.”

In late July Biden went further, inviting Friedman to the Oval Office to discuss Israeli politics, asking the columnist to report that he didn’t want Netanyahu to “rush” the reform process (as if that were Biden’s call to make).

Having invited opponents to his reforms to meet with him to negotiate a compromise, but receiving no response from them, Netanyahu disregarded Biden’s counsel and instituted the first element of the reform program by majority vote in the Knesset. This involved depriving Israel’s Supreme Court of its self-proclaimed authority to rule invalid any legislation that it finds to lack “reasonableness.”

As of this writing, it remains to be seen whether the Court will deny validity to the reform itself as unreasonable – a move that would in effect be an end-run around Israel’s elected legislature.

In reality, Biden’s advice reflects scant understanding of the Israeli political system. Desirable as it is for a free country to enjoy a system of separation of powers and an independent judiciary such as the United States Constitution establishes, Israel’s misfortune is that her founding fathers, having composed an elaborate Declaration of Independence in 1948, never got around to writing a constitution.

This has not prevented the nation from enjoying a consensual, parliamentary system of government since its establishment, largely comparable to the one that has long existed in Great Britain (where judges normally lack authority to rule on the validity of enactments by the House of Commons). Like other legitimate regimes, Israel governs itself through the principle of the rule of law, enforced by the courts, so that the rights of all citizens are respected.

Lacking a written constitution, however, the Israeli system of government provides no basis for judges to assess the legitimacy of the laws themselves. Citizens who find them objectionable can try to get them changed by persuading the Knesset to alter them, either through elections or sometimes simply by inducing one of the minor parties in a governing coalition to withdraw its support from the coalition.

But this situation changed beginning in 1995 when Aharon Barak, who had served as a member of the Israeli Supreme Court since 1978, following a previous career as attorney general, ascended to become President of the Supreme Court in 1995, a position he held until 2006.

Barak was described as the most “pro-active” court president in Israeli history, and his rulings tended to lean heavily in a left-wing direction. Barak was instrumental in expanding the power of the court and used it to reject laws passed by the Knesset, usually those sponsored by the Likud, the more conservative major party now headed by Netanyahu, as well as administrative decisions, based on their alleged unreasonableness.

But as David Weinberg, senior fellow at the Kohelet Forum (an Israeli think tank) observes, the “reasonableness” standard is nothing but “authoritarian jargon which allows High Court judges to elastically apply their own sensibilities and socially re-engineer Israeli society in their ‘enlightened’ image.”

During his service on the Supreme Court, Barak greatly expanded the range of issues with which the court dealt, canceling the tests of standing and justiciability that the court (like its American counterpart) had previously used to limit the questions it addressed.

From 1992 on, much of Barak’s judicial work (even before his ascension to the title of president) focused on advancing what he called Israel’s “Constitutional Revolution,” which he claimed was brought about by the adoption of “Basic Laws” in the Knesset dealing with human rights.

Under Barak’s leadership, the court brought such “values” as the Right to Equality, Freedom of Employment, and Freedom of Speech to a position of normative supremacy, to be enforced by the courts in order to strike down any legislation that in the judges’ opinion violated them.

Consequently, Barak held that Israel had been transformed from a parliamentary democracy to a “constitutional” parliamentary democracy, in that its Basic Laws were to be interpreted by judges as its constitution.

Barak’s progressive judicial activism will sound quite akin to what likeminded American jurists have often practiced on the basis of a very loose reading of our Constitution. But with relatively rare exceptions such as the invention of a right to abortion or same-sex marriage, the Constitution has ordinarily exercised a degree of restraint on judicial power that an unqualified “right to equality” does not.

Moreover, following Barak’s lead, the Israeli Supreme Court has ranged far beyond matters normally thought to be within the purview of judicial authority or expertise. In March 2016, for instance, the court ruled against a landmark deal for which Netanyahu had campaigned to develop and export the country’s offshore gas reserves simply because the contract gave energy companies pricing and regulatory stability for ten years regardless of potential shifts in the government. In another example of judicial overreach, the court also blocked for a decade the construction of a border fence to stem a wave of economic immigrants whose numbers vastly outstripped Israel’s capacity to accommodate them.

But there is an even more fundamental difference between the Israeli Supreme Court and its American counterpart that renders Biden’s comparison between them as “democratic” institutions whose political independence should not be infringed invalid: the modes by which they are appointed.

As everyone knows, Federal judges must be nominated by the president and confirmed by the Senate – that is, by members of the government who are democratically accountable.

By contrast, under Israeli law, Supreme Court judges are appointed by the Israeli president (whose position is largely honorific), from names submitted by the Judicial Selection Committee, which consists of nine members: three sitting Supreme Court judges (including the Court’s President), two cabinet ministers (including the Minister of Justice), two Knesset members, and two representatives of the Israel Bar Association.

Appointing a judge requires a majority of seven of the nine committee members, or two less than the number present at the meeting. But in sum, of the selection committee, only four members are elected legislators, while five are members of the legal establishment, completely unaccountable to the people.

Having taken advantage of this situation more than any of his predecessors in order to reshape Israel’s political order, it is no wonder that Aharon Barak once described Israel’s legal and judicial system as “an orchestra of different musicians” with himself as the conductor. In other words, Barak saw himself and the court, rather than the people’s elected representatives, as the sole conductors, or final arbiters, of Israeli political decision-making.

Underlying the battle over judicial reform in Israel is a battle between the secular, liberal faction, largely of Ashkenazi (European) descent, who were accustomed to holding political power for the first 29 years of Israel’s existence, and a typically more traditionalist, religiously observant, and nationalistic faction, largely Sephardim (that is, of Middle Eastern, North African, or Spanish descent) who first gained power with the election of Menahem Begin (himself an Ashkenazi) in 1977.

Among the incidental benefits of this transition was the demolition of the socialist policies initiated by David ben Gurion that had restrained Israel’s economic development, leading to its emergence as what the commentator Dan Senor called a “startup nation.”

One should not exaggerate the political divisions that beset Israel today: nearly all Israeli Jews remain fiercely loyal to and proud of their nation, whatever their policy disagreements. But even the leader of the opposition party in the Knesset, Yair Lapid, whose supporters have taken to the streets to protest Netanyahu’s judicial reforms, has admitted that some such reform is needed, since the relation between the legislative and judicial branches of the government has become unbalanced in favor of the latter.

Having abolished the Supreme Court’s authority to strike down legislation on the basis of its members’ idiosyncratic notions of reasonableness, Prime Minister Netanyahu has continued to demonstrate a spirit of moderation by agreeing to defer the next stage of his judicial reforms – democratizing the means by which judges are chosen – for several more months, in hopes that his political rivals will prove open to compromise on that issue. One must wish that they will take him up on that offer.

But back on the American scene, it is sheer demagoguery for Democrats to protest supposed threats to judicial independence in Israel, even as they denounce its persistence in America (that is, when the courts’ decisions don’t go their way).

We should be thankful that our founding fathers had the foresight to devise a carefully balanced constitutional order that limits the opportunities for autocratic rule by members of any of the three branches of government. Israelis of whatever political stripe, however, might well tell Messrs. Biden and Schumer to mind their own business. This country surely has plenty of problems of its own to attend to.

David Lewis Schaefer is a Professor Emeritus of Political Science at College of the Holy Cross.