WaPo Mis-Explains Israeli Judicial-Reform Proposal

Published February 15, 2023

National Review Online

In a recent post, I explained the extraordinary power that the Israeli supreme court has seized and presented one Israeli legal scholar’s argument that Israeli prime minister Benjamin Netanyahu’s proposed judicial reforms are “a measured, justified, and indeed a patently democratic response to decades of illegitimate judicial overreach.”

Washington Post article purports to explain “what you need to know about” Netanyahu’s judicial-reform plan, but the article is very biased from the very start. Netanyahu, we’re told, “is advancing an incendiary plan to hobble the country’s judicial system,” and his plan “has sparked a national crisis that many have warned may end in bloodshed.”

The article doesn’t get better when it tries to explain Netanyahu’s actual proposal. It begins by asserting that Israel’s “basic laws” are “legally equivalent to constitutional amendments.” But the reader learns only four paragraphs later that Israel doesn’t have a constitution. So how could these Basic Laws amend something that doesn’t exist? And how could they themselves have constitutional stature? The WaPo explainers don’t even spot the problem, much less try to resolve it.

The article states that the reform plan “would grant Knesset lawmakers control over judicial appointments” by “chang[ing] the makeup of the nine-member Judicial Selection Committee, which handles judicial appointments.” The change, it says, “would effectively give the government an automatic majority when voting on appointees.”

What the article doesn’t tell you is that the justices of the Israeli supreme court and their allies in the Israeli bar dominate, and have long dominated, the Judicial Selection Committee. The change would make the Israeli system much more like our system, where the president and same-party control of the Senate “effectively give the government an automatic majority when voting on appointees.” Whether or not that’s desirable, it’s very strange that the WaPo reporters don’t explain the proposed change in a way that is readily intelligible to American readers.

The article also states that the reform plan would “eliminate judicial review of legislation and allow parliament to vote down Supreme Court decisions.” The first half of the statement isn’t quite accurate — the supreme court would retain the power to review legislation — but the second is. But in a democracy that doesn’t have a constitution, why would the supreme court be the final word on what the law is?

The article somehow uses the rhetoric of democracy to attack Netanyahu’s thoroughly democratic reforms. It quotes with approval an Israeli law professor who asserts that “A government with no limits totally undermines any idea of democracy.” But that assertion makes no sense and confuses democracy — a majoritarian process — with the left-liberal results that Israeli’s anti-majoritarian institutions and processes have so often imposed. (Plus, parliamentary majorities in Israel are notoriously fragile, so there would be strong political checks on whatever could be done democratically.)

There is, to be sure, a serious inherent tension between democracy and any set of substantive legal protections that you might deem desirable. In a constitutional democracy (or, if you prefer, a constitutional republic), some protections are set forth in a written constitution. But because Israel does not have a constitution, the choice is between empowering democracy, even if that might not yield the results you want, and preserving Israel’s deeply anti-democratic rule by judges (or kritocracy). In an honest debate, the defenders of kritocracy would not be pretending to be the defenders of democracy.

I don’t mean, by the way, to suggest that there is anything unusually biased or incompetent about the WaPo article. On the contrary, it’s precisely because it is so typical of the American media coverage of the reform efforts that I find it worthwhile to critique.

Edward Whelan is a Distinguished Senior Fellow of the Ethics and Public Policy Center and holds EPPC’s Antonin Scalia Chair in Constitutional Studies. He is the longest-serving President in EPPC’s history, having held that position from March 2004 through January 2021.

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