Alan Dershowitz's 3 compromises to fix Israeli judicial reform - opinion

The time has come for both sides of the hotly disputed proposals for judicial reform to sit down and work out reasonable and principled compromises. Each side has some good points and both sides overstate the dangers they fear. But neither side seems in the mood to compromise, since their ideologically driven views have considerable popular support.

The protests against the judicial reforms often merge with more general protests against and in favor of the current government. Political rallies and other legitimate forms of protest do not create the atmosphere necessary for nuanced compromise, but that is exactly what is needed in this age of partisan and ideological divisions.

I have a proposal that I believe meets the basic demands and needs of both sides. Although the proposed judicial reforms are multifaceted, two of them lie at the heart of the disagreement. The first is the power of a Knesset simple majority to override Supreme Court decisions; the second is the mechanism by which Supreme Court justices are appointed.

Implicit in the first reform is the belief that the Supreme Court has gone too far in asserting its power over a broad array of issues. Proponents of the reform have a point. The Supreme Court should have only limited authority over largely economic and political issues, such as the gas deal with Lebanon or the ability of a particular individual to serve in the government. It would be reasonable for the Knesset to be able to override such decisions, which do not involve the fundamental rule of law. 

Courts have no special competence in those areas, and the popular will, as reflected by elected legislators, should generally prevail over the opinions of appointed judges. But when it comes to decisions regarding basic issues of civil liberties, human rights, minority rights, civil rights, due process, free speech, religious liberty, equal protection and other enduring aspects of individual liberty, the Supreme Court should have the last word. 

Courts are supposed to be beyond politics and partisanship. A crucial part of their job is to protect minority rights against majority power. This is especially so because Israel lacks the checks and balances of a two-body legislature, a federal division of powers, an independent executive and a written constitution.

Accordingly, the Supreme Court is its most important check on the excesses of temporary majorities. It is true, of course, that any time minority rights prevail over majority power, pure democracy is compromised. But that is the historic role of the judiciary in any country governed by the rule of law. Democracy – that is, the rule of the temporary majority – should always be balanced against other enduring values.

The current battle is not about democracy per se. Israel will remain a vibrant democracy, where the majority of the people rule, regardless of whether all or some of these reforms are ultimately enacted or defeated. It is about justice, the rule of law and minority rights, which are essential to making a democracy the best and fairest it can be.

My compromises to fix the judicial reform proposals

SO, MY first compromise proposal is that legislative override should be permitted for decisions that are largely political and economic, but not for decisions that involve core fundamental liberties. The line between these two types of cases is not always clear; there will inevitably be some overlap. But it will be clear enough to preserve the power of the court to protect the most basic rights.

Alternatively, if any overrides of the latter decisions were to be permitted, they should require a super majority of the Knesset, representing multi-party support.

The main objection that current opponents of the Supreme Court seem to have – as reflected by the examples they tend to cite – is with judicial intrusion, based on the concept of “reasonableness,” into political and related affairs. They claim that the justices only rarely render decisions striking down legislation or administrative actions that protect basic liberties.

If that is, in fact, the case, then they should have little worry that the absence of an override in these areas will cause much harm. But the demand to override decisions protecting core liberties threatens to cause considerable harm to Israel’s standing in the world. It will also weaken Israel’s ability to invoke “the principle of complementarity” as a defense against the claimed jurisdiction of the International Criminal Court over Israel. 

My proposed compromise would give both sides much of what they want without substantially curtailing either majority power or minority rights.

As to the second area of dispute, no democratic nation has devised a system for selecting high court justices that is perfect. Some, like in the US, are too political. Others, like in Israel, are too elitist. The trend in most countries is away from elitism and in favor of greater diversity. An appropriate balance must be struck between selecting for professional excellence and assuring that no group is omitted.

One way of striking that balance is to require more than a simple majority of the selecting body for approval, as Israel currently does. This encourages consensus candidates who have multi-partisan support. It also results in some good prospects being passed over and delays filling seats.

But these are prices worth paying to assure the highest quality of non-partisan judges, who will serve for many years. There is room for some reform of the current process, such as eliminating the veto by the three judges who are currently on the committee that requires seven of nine votes.

The key is to assure that the pendulum doesn’t swing too far away from excellence and toward partisanship. As the Torah commands judges: “lo takir panim” – do not recognize faces (or political parties). 

Neither of these proposals is written in stone. Other proposals should be considered as long as the two primary principles – Supreme Court authority over core issues of liberty, and a non-partisan selection process – are followed. The rest, as Hillel said, “is commentary.” Both sides should keep open minds and welcome principled compromise. 

In that spirit, I offer a third proposal: The president’s office should sponsor, at the appropriate time, a series of high-level debates on each of the divisive issues. Only the president can provide non-partisan credibility to such an enterprise, which is consistent with his excellent and principled address.

These widely watched events – modeled after the famous Lincoln-Douglas debates – would demonstrate Israel’s commitment to the democratic resolution of contentious issues and would present Israel in its best light. They might also persuade the Israeli public that there are good arguments on both sides and that principled compromises are in the best interest of all Israelis. 

Follow the writer on Twitter @AlanDersh and Facebook @AlanMDershowitz. His new podcast, The Dershow, is on Spotify, YouTube and iTunes.