When the Republicans gained a Senate majority in November’s midterm elections, they thereby constrained U.S. President Barack Obama’s ability to influence the Supreme Court’s direction in his last two years in office. Now, Obama will only be able to secure the appointment of judicial nominees whose philosophy is acceptable to the Republican majority. While other issues will predominate in the 2016 elections, sophisticated voters and advocacy groups on both sides of the ideological divide will be aware that the power to shape the court’s philosophy is in play.
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The American system is commendable for its frank acknowledgement that the term “rule of law” is open to different interpretations and it is legitimate to seek a court majority that is more conservative on social issues and less inclined to intervene in legislation. This is an essential part of checks and balances. If the judiciary can strike down legislation or governmental action as unconstitutional, the executive and legislative branches can influence the judiciary by the nomination and approval processes.
In Israel, we are deprived of a similar course correction due to our sui generis judicial selection process, which grants Israel’s Supreme Court and the lawyers dependent upon it, a dominant say in the appointment process.
There have been recent rumblings about judicial activism and even arrogance – as epitomized by the court’s striking down Knesset legislation to prevent the country’s inundation with illegal immigrants. Instead of making clear that the Knesset is the legislator and it is the court’s obligation to interpret the laws legislated by the Knesset, the former has displayed excessive deference by continuing to water down the so-called infiltration law to secure judicial approval. The Knesset’s goodwill gesture went unreciprocated as the court struck down the modified version of the law. Even some members of the bench, such as Chief Justice Asher Grunis, feel that the judicial hubris will backfire, and either prompt a backlash or render the Knesset atavistic, since the court and Israel’s legal apparat will have become Israel’s real legislator.
Obviously, those who believe that the rule of law is synonymous with left-wing liberalism are happy with the status quo. They will do their utmost to convince us that we are better off being governed by legal nannies dispensing 100% distilled justice and who, unlike elected officials, are not swayed by political ideologies.
On the other side of the aisle, however, the issue of judicial reform is gaining traction. In the Likud and Habayit Hayehudi primaries, Yariv Levin, Yossi Fuchs and Ronen Shoval made the issue centerpieces of their campaign. Levin blames the court for the disconnect between Likud's electoral victory and its inability to transform an electoral mandate into policy; Fuchs has called for jettisoning the judicial selection method via which the current majority effectively replicates itself by ideological inbreeding; and Shoval has made it his mission to "abolish the judicial overthrow."
I can already anticipate the counterarguments: reining in the court could further delegitimize Israel given the court’s favorable international reputation. Firstly, it is rich for other nations to insist on a system for Israel that they would not wish on themselves. Secondly, it is precisely the de-legitimation campaign that repeatedly invokes Israel’s allegedly “illegal” occupation that must be vigorously combatted.
The need to forcefully reassert Israel’s case has gained added urgency now that “Palestine” has applied to join the International Criminal Court. After the 1967 Six-Day War, Israel did not lack prestigious international law experts to defend her case that her claim to Judea and Samaria was equal and better than others. Those who came to her defense included foreign scholars such as Julius Stone, Stephen Schwebel, Eugene Rostow and Sir Elihu Lauterpacht as well as the Israelis Meir Rosenne and Yehuda Blum. Currently, only Professor Eugene Kontorovich of Northwestern University continues the good fight to defend Israel’s legitimate presence in Judea and Samaria.
Israel’s Supreme Court, while denying that the international law of occupation applied to the territories liberated by Israel in the Six-Day War, bent over backward and interpreted the situation as if we were de facto – if not de jure – dealing with a situation of belligerent occupation. As Professor, and now Supreme Court Justice, Daphne Barak-Erez pointed out in her 2006 article on the Supreme Court and the security barrier, the court walked a tightrope between de facto acceptance of the occupation status and finding specific security exemptions, for Israel to be balanced by the needs of the local population.
This hairsplitting further entrenches the perception that Judea and Samaria is occupied, rather than, at worst, disputed territory. To defend Israel’s position in public opinion we need more justices like the late Edmond Levi, who chaired a 2012 panel that firmly rejected the view that Israel was an occupying power.
The abandonment of Israel’s legal positions was part and parcel of the trend to downplay a rights-based defense of Israel that was initiated in the post-Oslo euphoria. Since a settlement was in “touching distance,” we could look forward rather than backward. Even after the Oslo balloon was punctured, Israeli public diplomacy shied away from emphasizing Israel’s rights and preferred to use the security argument blanket almost exclusively. This was tantamount to pleading nolo contendere to the occupation argument.
It is all well and good for political leaders like Naftali Bennett to counter the occupation argument by asserting forthrightly that you cannot occupy your own country. This argument must also find a strong echo in judicial opinion.
Amiel Ungar is a political scientist.