Preserving the Balance of Power in Israel

One of the themes I’ve returned to again and again in these weekly letters is the strange way that everything changes as the years pass at the same time that nothing does. And reading ancient books, as I like so much to do, only sharpens that thought. The people in those antique works, for example, don’t have smart phones (or any phones) or computers or cars. They don’t dress the way we do or live in homes at all similar to our own. And, yet, when they sit down to worry about the world, the topics that occupy them are precisely the same ones that occupy us. How to live in peace with the neighbors. How to deal with ornery in-laws. How to escape out from under crushing debt. How not to be disappointed when your children choose a path forward in life different from your own. How to live decently and well when your instincts seem constantly to lead you off in the precise opposite direction. So when Jean-Baptiste Alfonse Karr famously wrote that “the more things change, the more they remain the same,” he certainly had it right. And that was back in 1849, when daily life was seriously different than it is today. And also the same.

Scripture, aside from being a theological document, is also a political one that suggests the way a free people should wish to be governed by its leaders. And there are many biblical passages, both within and outside the Torah, that speak to this specific point. Some are slightly contradictory, but taking them seriously as a set of working principles of political science yields an interesting picture and, at that, one that has direct bearing on the nightmarish public debate going on in Israel regarding the way the nation should be governed.

There are, speaking broadly, three instruments of governance in the biblical view: the king (occasionally a queen), the priesthood (as embodied in the office of High Priest), and the prophetic guild (with the occasional outlier who self-presents as a prophet without the backing of that guild). The sovereign has absolute power, but no one—including not the king himself—thinks that he can successfully govern the nation without divine support and, speaking practically, that requires having the support of the Temple priesthood who offer up the sacrifices and attend to the rituals that are understood to be what it takes for the king to stay in God’s good graces. So the king and the High Priest exist in a kind of symbiotic relationship: to retain their authority and their power, they need each other. And that creates an interesting dynamic: the king rules as an absolute monarch but can’t afford to alienate the High Priest, and the High Priest is possessed of the authority that comes naturally from being God’s chosen servant in the midst of the people but has no specific political power. And so they exist, these two, in a kind of symbiotic balance: each master of his own domain but neither able to act fully autonomously if doing so would alienate the other.

But that balance of power has its own corrective. If the king is able to garner the support of the High Priest with respect to a major policy decision—to go to war or to levy new taxes, for example—and so feels free to proceed, there is always the possibility that a prophet proclaiming the word of God will intervene to insist that the policy be abandoned or refined in a way that suits the will of the Almighty. The kings of Israel did not particularly like this arrangement. Why would they have? They did their best to keep the prophets from speaking out—readers who remember my story “Enemy at the Gates” will know something of the kind of brutal, degrading treatment to which Jeremiah was subjected when he opposed the king in public—but the prophetic movement survived for as long as did the monarchy. And so we see a system of checks and balances designed to guarantee that no single leaders—not the king or the High Priest, but also not the prophet—could act successfully without at least the tacit acquiescence of the others. It was in some ways a flawed system. (There was no sure-fire way to test the authenticity of a self-proclaimed prophet’s message, for example.) But the system worked well enough. And when it stopped working in the last days of the kingdom, that was precisely when the nation fell and the fortunate/unfortunate survivors were exiled from their homeland. (“Enemy at the Gates”  is part of my collection of short stories entitled To Speak the Truth: Stories 2011–2021. To purchase, click here.)

In our nation, we have a similar system of checks and balances intended to keep any branch of government from acting other than in the best interests of the people. The Congress can pass bills, but the President has to sign them. The President can decline to sign a bill, but Congress can override the President’s veto. And, in the end, the Supreme Court has the right to declare any law, even those duly passed by Congress and signed by the President, unconstitutional and therefore void. And that system—which specifically does not permit the Court to pass or sign legislation but only to address the work of the other two branches of the government—that system seems to work well enough: Congress and the President exist in a kind of symbiotic relationship, but neither can act contrary to the law no matter how many votes a bill might garner and how willing the President may be to sign it. And, presuming the integrity of the Court and the willingness of the President and the Congress to accept its judgments as binding, the system works well enough. (I heard that! But the system has worked well enough up to now and, I hope, will continue to do so.)

The situation in Israel is related to all the above, but the circumstances are not at all the same. The basic idea is that the Netanyahu government wishes for the Knesset to take control over the appointment of judges and to seriously weaken the ability of the Supreme Court to strike down laws passed by the Knesset by allowing the Knesset to override such decisions by the Court with a simple majority. The opposition to these “reforms” has been massive: hundreds of thousands of Israeli citizens have been demonstrating in the streets and denouncing these proposed changes vociferously. For a full and vigorous expression of why all those thousands of Israelis are in the streets protesting, I recommend David Horovitz’s incendiary op-ed piece in the Times of Israel from a few days ago in which he equates the proposed reforms as steps that would neuter the Court and, and I quote, “bulldoze the Declaration of Independence.” (Click here to read the Horovitz essay.)  Less incendiary but no less heartfelt, was Michael Oren’s blog post in the Times of Israel from a few weeks ago in which the author, the former Israeli ambassador to our country, explains why someone like himself can strongly oppose Netanyahu’s proposed reforms and still, and at the very same time, feel that judicial reform is warranted and necessary. (To read Oren’s essay, click here.) Even a unabashedly right-wing author like Alan Dershowitz has written recently that the Israeli justice system needs a serious overhaul and has made some serious proposals for what the reforms that would bring about such an overhaul could or should look like. (To read a summary of Alan Dershowitz’s proposals, click here.) But neither Oren nor Dershowitz supports the specific proposals the Netanyahu government seems hell-bent on pushing through the Knesset.

Lots of exaggerated claims that I’ve come across lately only muddy the water. To say, for examples, that Supreme Court justices appoint themselves in Israel is exaggerated enough to be labelled simply untrue. But the reality is different from what we Americans are used to: in Israel, Supreme Court justices are appointed by the President, who is obliged to choose from names submitted by something called the Judicial Selection Committee, which is itself made up of three Supreme Court justices, two cabinet members, two Knesset members, and two representatives of the Israel Bar Association. Unless some members of the committee are absent, seven out of the nine have to agree on the submission. And if they do, then the President has no choice but to comply. So to say that the Supreme Court selects its own members is not at all true. But also true is that the system does invite input from the Court in a way that has no parallel in the American justice system. Is that a flaw in the system? Given the degree to which our own method of choosing Supreme Court justices has become so incredibly highly politicized that the Congress was able to get away with refusing even to consider President Obama’s final nomination to the Court, it’s hard to say that the American system is not itself in need of serious reform. But it’s also true that the Israeli Supreme Court plays a role in selecting its own members that is unlike the method in use in almost every other country in the world.

At the end of the day what matters—and what matters above all else—is the maintenance of a system of effective checks and balances that keeps any part of the government from acting other than in the best interests of the populace. This was the rule in ancient Israel and it is the rule, for better or for worse, in our nation, just as some parallel version of that concept is part of the way that all successful Western republics—certainly including the U.K., France, Germany, and Italy—govern themselves. So what is of paramount in Israel is that the concept itself be preserved and safeguarded. If the Court has veered off to reflect a political orientation at odds with the general populace, then that is precisely what the system exists to address. Neither the Knesset nor the Court should be able to speak definitively without the assent and support of the other. The President in Israel is politically powerless, yet he or she can use the enormous power of moral suasion that inheres in the office to act as a corrective in his or her own right. On paper, the Israeli system—similar in some ways to our own but also dramatically different in others—should work well. And, in the past, it has.

The Netanyahu reforms seem calculated to disable the system of checks and balances crucial to the moral right of the government to self-describe as representative  both of the will of the populace and of the foundational ideas upon which the State rests. Judicial reform can and should be effected if the system is not working properly. The will of the people in any democracy is both paramount and sacrosanct. But the system of checks and balances is crucial and must be maintained and kept intact. The reforms proposed by the Netanyahu government will seriously limit the ability of the Court to play the corrective role the founders of the State wished for it to play. Judicial reform is a reasonable goal. But the government is overreaching and should scrap the current proposals in favor of alternate ones that will preserve the ability of the Supreme Court to exert corrective influence on the government—just as the founders of the State intended.