Rabbi Jonathan D. Zimet, Esq.
Rabbi Zimet, now of Philadelphia, served at Temple Beth El in Troy
With Prime Minister Netanyahu ignoring the protests and urgings from not just myself but a wide range of leaders, including from his own cabinet, and pressing ahead with his proposals (outlined below), I can no longer in good conscience support or visit Israel. I urge others who share my views to similarly refrain from such support and visiting. (See end of my email.)
Prime Minister Netanyahu’s proposed “judicial reforms” [sic] include the following:
1. An override clause designed to curtail judicial review of legislation.
2. Changes to the makeup of the Judicial Selection Committee designed to ensure the government controls appointments to the bench.
3. Cancellation of the standard of extreme unreasonableness utilized by the Supreme Court to intervene in executive orders.
4. The transformation of ministerial legal advisors into political appointees.
The Israeli system is different from that in the United States. The United States Congress can amend a law that the US Court declares unconstitutional, or (much more difficult) initiate a constitutional amendment.
The US president, with the Senate’s “consent,” appoints the Court’s members. However, unlike Israel, which has a retirement age of 70 for justices, in the US the Court’s members serve for life. (Only a few, such as Arthur Goldberg, Sandra Day O’Connor, and Anthony Kennedy, have stepped down. A few others, like Stephen Breyer or Earl Warren, have resigned when they believed the President would make appropriate appointments.) As a result, the Court’s members are pointed by a succession of several presidents. (Consider the current Court, with appointees by Clinton, George W Bush, Obama, Trump, and Biden. The 1994 Court had appointees by Eisenhower, Johnson, Nixon, Ford, Reagan, and HW Bush. Under his plan, the Israeli PM can replace many retiring appointees in a shorter time frame.)
The US Supreme Court can declare an act of the President or Congress unconstitutional, as long as they provide a reasoned basis. Israel’s Court may use the “standard of extreme unreasonableness” (#3 above).
Israel’s justices are chosen by a judicial selection committee which contains: the Justice Minister, another cabinet minister, two Knesset members chosen by the Knesset (since 1992, usually one member from the coalition and one from the opposition), two members of the Israel Bar Association, and three members of the Supreme Court (determined by seniority). Netanyahu’s proposal (#2) would change this to allow him to control the selection of the Court’s members.
The power of the U.S. Supreme Court to review the constitutionality of laws is what keeps the legislative or executive branches from trampling on people’s rights.
(Both the US and Israel Supreme Courts have the authority to choose which cases they hear. In the U.S., this is the granting or denial of a petition for a writ of certiorari — the vast majority are denied.)
Israel’s Declaration of Independence provided that the State will be “based on … justice… as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants…”
This means respect for the rule of law. A democracy* means a government of laws, not men. (*see below)
The prophets of Israel acted to ensure justice and the rule of law. When King David sent Uriah, the husband of the woman with whom he had committed adultery, to the army’s front lines, the prophet Nathan confronted David (II Samuel 12:7-12). To his credit, King David agreed: I have sinned against the Lord. (Ibid. 12:13).
When King Ahab sought to seize Naboth, his neighbor’s vineyard and Naboth refused, Ahab’s wife advised him: Do you not govern the kingdom? Don’t worry, I will arrange to give you Naboth’s vineyard. (I Kings 21:5-7). Jezebel then arranged to frame Naboth for blasphemy, have him executed, and to then seize his vineyard. (Ibid. 10-16). The prophet Elijah confronted Ahab and stated that God would cause him to lose the ongoing war with Aram. (Ibid. 20-24). After Ahab imprisoned and starved Elijah’s colleague Micaiah, Ahab battled Aram and was mortally wounded. 22:26-27, 30-34. “Dogs licked his blood as the prophet had predicted.” (22:38).
Each of these demonstrated that even the head of government is not above the rule of law.
On March 26 I learned that PM Netanyahu not only plans to implement his curtailment of the Court’s power tomorrow, but when faced with dissent from his Defense Minister, Yoav Gallant, within his cabinet, Netanyahu simply fired the minister!
Israel’s attorney general, Gali Baharav-Miara, criticized Netanyahu’s judicial reform as illegal, due to the Supreme Court’s ruling that a prime minister accused of crimes must refrain from actions raising a conflict of interest between his personal interests and his role as premier. Netanyahu responded that he would arrange to enact a law changing the makeup of the Judicial Selection Committee. In addition to his personal conflict of interest, Netanyahu objected to the Court’s striking down a law that had authorized the government to expropriate private land owned by Palestinians if Jewish settlers had built on it, the ultra-orthodox parties in his coalition objected to the court’s invalidation of laws exempting men from their community from mandatory military service, and to its ruling that the leader (Aryeh Deri) of another coalition party, Shas, could not serve in Netanyahu’s cabinet given that he had promised not to enter public service as part of a plea deal in his conviction for tax offenses.
Netanyahu’s proposals also would limit the judicial review of legislation by allowing the Knesset to preempt or annul a Court ruling by a simple majority.(#3, above).
The parallel to the above kings’ abuses of power is obvious.
It is amazingly similar to how President Nixon sought to derail the investigation against him in the Watergate matter. Special prosecutor Archibald Cox sought documents which could implicate Nixon (as Nixon knew). Because Nixon himself could not fire the prosecutor, he directed his attorney general to fire him. Those old enough to have lived through this will recall the “Saturday Night Massacre,” when Nixon sought to have his attorney general, Elliot Richardson, fire Cox. When Richardson refused and resigned, Nixon ordered the next in line, William Ruckelshaus, to fire Cox, and Ruckelshaus likewise refused. Finally, Solicitor General Robert Bork carried out the dismissal as Nixon had asked. (See summary and background at: https://en.wikipedia.org/wiki/Saturday_Night_Massacre ).
*The term “democracy” as provided by the Declaration of Independence, rather than the technical definition of laws and officers chosen by a majority vote. The current constraints on the prime minister’s and Knesset’s power (a government of laws, not men) distinguish a liberal democracy from pure majoritarianism, which can run roughshod over the rights of individuals and minorities.
I support the Israel that we and our predecessors supported and died for — which has a respect for the rule of law. If Netanyahu enacts changes which eviscerate the Court’s independence as listed above (#1-4), then I will not support or visit Israel.
This is in strong contrast to the “BDS” movement (“boycott, divestment and sanctions”) which was initiated by a combination of people who seek to penalize Israel’s actions concerning settlements, or even deny Israel’s right to exist. (i) Netanyahu’s actions go far beyond this, dealing with not just a government’s policies, but destroying the independence of the government’s branches. (ii) I do not support a boycott of Israel’s produce;(iii) I seek no divestment from companies doing business with Israel; and (iv) I do not seek sanctions. But I cannot live or visit there.
See the following article:
“When Daniel Schleider and his wife, Lior, leave Israel next month, it will be for good and with a heavy heart.” — Haaretz: The judicial coup pushes Israelis over the fence, to move from Israel. https://www.haaretz.com/israel-news/2023-03-21/ty-article/on-the-fence-for-years-the-judicial-coup-pushes-these-israelis-to-leave/00000187-0445-dde5-ab8f-264d1aa60000
Respectfully yours,
Rabbi Jonathan D. Zimet, Esq.
267-385-7717 c-609-621-2318
jdz @zimet.org
