Photo Credit: Erik Marmor / Flash 90
Supporters of the judicial reform demonstrate, April 2023

Nathan Lewin, Esq. is a household name synonymous with legal scholarship for more than 55 years. Consistently listed among the “Best Lawyers in America”, Lewin is a champion for civil liberties and has argued 28 cases before the United States Supreme Court. Many of those cases represent Jewish causes, and Lewin’s achievements and advocacy in federal and state courts have left lasting imprints on Jewish life in America.

As familiar with Israel’s legal system as with America’s, Lewin spoke with me towards the end of March about the judicial reform controversy that is roiling the State of Israel. Navigating the complicated differences between the American and Israeli systems, this judicial authority charts out a clear legal path forward for the Jewish state.

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Back in January, you wrote a piece about judicial reform in Israel, coming out in favor of reform and delineating some of the differences between the Israeli and American Supreme Courts. You wrote that “the U.S. Supreme Court has long prescribed limitations on its own power.” Can you explain?

In the U.S., it’s well established that a plaintiff needs to have “standing” to be able to bring a case in court and certainly before the Supreme Court. That means a person has to have been personally harmed. With the Supreme Court of Israel, organizations that can’t show anything other than their public interest in some matter can bring a case, which results in Supreme Court decisions. In the U.S. that would be laughed out of court.

For example, an organization cannot come to the U.S. Supreme Court or any district court wanting to throw out Congressman George Santos from Congress for defrauding the voters. Yet, in Israel, three organizations could go to the Supreme Court and succeed in getting Aryeh Deri removed as a minister. They had no standing, no more than I would have to go to a court in the U.S. and say George Santos shouldn’t be in Congress.

The other limitation that’s very important is what’s called justiciability – is this a case that a court may consider. In the U.S. there’s a political question doctrine. Political questions are not justiciable. They can’t be considered or decided by a court. Who should be a minister in a cabinet is clearly a political question. If the prime minister decides that Aryeh Deri should be a minister, no U.S. court would think that you can bring an action and claim that it’s extremely unreasonable for, let’s say, the Secretary of Transportation to hold his position. That’s totally out of the question.

 

You use the word “unreasonable”, which is used by the Supreme Court in Israel as a barometer of determining the validity of some laws. Do you view this method as a possible arbitrary power grab that should be reformed?

That’s not the worst thing that the Supreme Court of Israel has done. It’s possible to argue that courts in the U.S. also apply standards of what is reasonable to the construction of a statute or to other situations. It ought to be on the list of reforms, but it’s not the main problem.

 

Is the process of self-selection of judges, resulting in perpetuating like-minded judges, more of a problem?

Absolutely, one of the very top things that has to be fixed is how you select judges in Israel and how vacancies on the Supreme Court are filled. If the president of the U.S. publicly sent a letter or called in a justice of the Supreme Court and said, “Tell me who you think out to be on the Supreme Court”, that would be a scandal. The separation of powers here means that judges don’t decide who are going to be judges. Because those judges will be, as you say, self-perpetuating.

That used to be true totally in Israel and was cured a little bit by expanding the committee that appointed judges and justices. But the Chief Justice and other justices still essentially have veto power. In 2005, Aharon Barak essentially ran that selection committee and refused to have Ruth Gavison on the Supreme Court. She was the leading intellectual and professor and clearly a legal scholar and very suited. But he said she had an “agenda” and kept her off the court.

 

Considering Barak’s “agenda”, that’s ironic. You quoted American judge Richard Posner commenting that Barak “created out of whole cloth a degree of judicial power undreamed of even by our most aggressive Supreme Court justices.” Posner also called him an “enlightened despot” and a “legal pirate”. What is your assessment of the damage Barak incurred and the likelihood of recovering from it?

I think that the damage is only that the mob seems to think that this [Barak’s enactments] is necessary to have an independent judiciary in Israel. That’s wrong. Aharon Barak grabbed these powers, threw out doctrines so that anybody can come before him and his court, and did away with things that he and the majority of the court that he selected did not approve of. Because that happened Israelis now take all these things for granted.

Even the judicial reformers in Netanyahu’s coalition propose to pass a bill before Pesach that says that the selection committee will consist of three judges and one of them possibly the Supreme Court Chief Justice. That’s outrageous. But they have become accustomed to this in Israel. They believe that the only people who can decide who are good judges are the judges. That’s not right. In the U.S. it’s the president and the Senate.

Also, in Israel, candidates are not publicly vetted until the committee announces who is appointed. Why isn’t it required that if the selection committee has potential candidates, they should make them public and allow people to either testify or submit reasons why those people should or should not be selected? It’s all secret. That’s not the way it should be.

 

That excellent point itself has not been widely publicized. But going back to your comment on the seeming capitulation of the Netanyahu coalition due to longtime habit, isn’t the capitulation also due to pressure from the protestors, with President Herzog warning of a civil war?

There’s no question that’s true. Not only because of Herzog, but because of American protestors who I think should be much more sensible, starting with Alan Dershowitz and Irwin Cutler. People who have reasonable approaches for legal process have been in some ways brainwashed or intimidated. Dershowitz says, “This is bad and that’s bad, but we’ll compromise.” I don’t think anything is bad. Frankly, I think the least desirable provision in the judicial reform is the 61 Knesset member override [of Supreme Court rulings].

 

Would you be in favor of compromising on the override clause?

I would compromise and say that it should be more than 61 members, maybe 65 or 70. But overriding is not an answer in terms of Israel. The U.S. Congress can’t override a Supreme Court decision. If the Supreme Court says that this football coach has a constitutional right to kneel in prayer on the 50-yard line, I don’t care whether there are is a majority of House or Senate who disagree with that. They shouldn’t be able to override that.

Overriding has a negative aspect to it because if the Knesset can override, that’s a reason why the court should not consider overruling its own past precedents. If in the U.S. there was the authority to override a Supreme Court decision, I don’t know if there would have been a majority of the Supreme Court to overrule Roe v. Wade. Because some justices could have been persuaded that if Roe v Wade was not overridden by a huge vote in the Congress, it should stand. But under the American system, judges have the duty to consider those rare occasions when they should overrule a past precedent. And that happened – the Supreme Court overruled its past precedent.

I don’t know how often the Israeli Supreme Court has really overruled its past precedents. If you’re going to give the Knesset the power essentially to override, that’s going to take away the incentive to overrule.

 

If you don’t favor override, what’s a better approach?

I think the best way are the things that I talked about – selection of judges, public disclosure of candidates, limitations on justiciability, limitations on standing. I would prefer to have override be 65 or 70 members to show that there’s very substantial disagreement.

 

Because the Supreme Court has the current ability to overrule any law this coalition might pass, do you think the override clause may have more immediate significance than the selection of judges?

Well, there are two vacancies that are coming up in the very short-term – the president and one other justice are reaching the mandatory retirement age of 70. In the law it is now proposing, the coalition apparently intends to be able to nominate a name to fill those two vacancies. In terms of overriding some immediate current Supreme Court decision, I think that may be a short-term gain but a long-term loss. I don’t have an objection to it, but I don’t think override is essential.

Also, the judicial climate changes and the attitude towards certain kinds of issues is modified by new justices. The current justices in the U.S. have decided that Roe v Wade was wrong and they overruled.

 

But changing judicial climates in America, where either the right or left dominate every couple of years, is not the same in Israel, where the left is diminishing and demographics point to the steady increase in Orthodox and rightwing voters. Can this be driving the animus on the left?

I’m sure that that’s part of the motivation. They see their numbers proportionally dwindling. But I think there is virtue in an independent judiciary having some substantial judicial power and an ability to preserve rights against the wishes of the majority.

My friend Alan Dershowitz wants to draw that line around cases where individual liberties are at stake, such as free speech or rights that are recognized under the bill of rights in the U.S. Then the Supreme Court should have the last word and the majority should not be able to deprive a minority of their rights. In the U.S. that’s very good; that’s why Jewish rights or minority religious rights are protected. How that translates in Israel is another question.

 

You mention Alan Dershowitz. Although he opposes much of the judicial reform plan, he recently said it “would not undercut democracy”, contrary to judicial reform critics. Further, he said that the protestors “don’t like the result of the election. And as a result, they’re protesting and they have no idea what they’re protesting….I don’t think the EU, the Reform and America’s rabbis should be dealing with these issues. It’s a surrogate for, ‘We don’t like Netanyahu, Ben-Gvir and Smotrich. And if [judicial reform] would be passed by anybody else, they wouldn’t be concerned about it.” Do you agree?

Yes, I agree. I think Simcha Rothman himself said that a lot of the proposals were made by people in the opposition in past years but now they oppose them because they are suggested by the Bibi government. There’s no question. Just like they say Trump-derangement syndrome, it’s Bibi-derangement syndrome. They’re protesting only because Bibi’s government has proposed it and they don’t like Bibi’s government.

 

Why do you think there aren’t mass counterprotests at this time on the right?

There are beginning to be some demonstrations on the right, but the right is not motivated in the same way. If you assume the left is doing it because they don’t like Bibi, the ordinary frum or not frum or ordinary right-winger says, “Ok, we now have a coalition that controls the Israeli government. What is there to protest?”

Quite frankly, my understanding is that the protestors in Israel are financed by organizations from outside Israel. The New Israel Fund boasts of the fact that they are supporting the demonstrations. They obviously are sending substantial amounts of money, and I’m even told that many of the demonstrators are paid to demonstrate.

 

There is pushback by American politicians too. A group of nearly 100 Democratic lawmakers sent a letter to President Biden stating, “We urge you to use all diplomatic tools available to prevent Israel’s far-right government from further damaging the nation’s democratic institutions and undermining the potential for two states for two people.” Other critics also link judicial reform with the two-state solution. Do you think concern for Palestinian statehood is driving much of the criticism?

I don’t know whether it’s concern for Palestinian statehood, but there’s no question that in the U.S. the concept that the Palestinians are being treated badly has gained a lot of traction over the last couple of years. Ten, fifteen years ago nobody took seriously any notion that the Palestinians living in Israel were being mistreated. But now, it’s common, not only with congresspeople like the Squad but among progressive congressmen, even Jewish congressmen.

It’s increasing among those who could be counted on in the past to totally support Israel and realize that the Palestinian demands are simply an effort to destroy the Jewish state, which they are, and have it taken over by Palestinian or the Arab population. Even among Jewish or partially Jewish members of Congress. I grew up on the West Side of Manhattan, which was represented by a long period of time by Jerry Nadler and still is. There is this impetus among them to condemn whatever the Bibi government does – if it opposes and won’t accept a two-state solution or urges judicial reform or makes recommendations that accomplish judicial reform.

 

People point at what seems to be a failure at hasbarah by the Netanyahu coalition, but as you call it Bibi-derangement syndrome, you can’t dialogue with someone who is deranged. Would you recommend the coalition try to expand their efforts at PR or cut their losses and forge ahead?

It has to forge ahead. It’s not going to persuade the other side any more than in the U.S. can you persuade the antisemites not to be antisemitic or the anti-Zionists not to be anti-Israel. Persuasion worked back in the old days when discussion was face to face and oral, but not now with the media having this amazing influence that has grown so much through my lifetime.

There used to be a time when everybody would read newspapers, which were written by people who followed journalistic rules. The purpose was to tell what happened in the most objective way so that people could form their own opinions. And on the editorial pages the newspaper stated their opinions. That’s no longer true. You turn on the news and see the difference between stations – it’s difficult to believe that they’re describing the same events. There’s no dialogue or reasonable debate or discussion. Debate and discussion are over. It’s simply what impulse affects you.

So, I think they have to do what they have to do. It’s a good idea to keep saying we are ready to compromise if someone will offer a reasonable compromise. The override clause is a perfect illustration of a possible compromise. Apparently, they were ready to compromise on the number of judges on the selection committee. To me, having grown up and dealt with the American separation of powers, I think it’s wrong to have any judges in the selection of judges. But even though the coalition is compromising, no one seems to be focusing on it. The Israelis have been brainwashed into believing that the judges would select the best people to be judges. That’s ludicrous. If you did that in the US it would be an outrage. Yet in Israel they accept that.

 

Can you comment on the outsized role of the attorney general in Israel and how it is alien to the American system?

I think under any workable system, government agencies have to be represented in court by a lawyer who represents the government and takes the government’s position. In the U.S. that’s the job of the attorney general. Biden’s attorney general is very different from Trump’s attorney general but they’re controlled by their superiors. There have been attorney generals in the U.S. who maybe disagreed with the president on some issues, but they disagreed internally and were not allowed to go out and prohibit the president from doing something.

Yet in Israel, you have somebody called an attorney general who does not just express an opinion but tells the president or the prime minister what he is doing is illegal and is prohibited from doing it. These strange governmental authorities, whether they are Avichai Mandelblit or Gali Baharav-Miara, are superior legally to the people who they purportedly are subordinate to. They think they have the authority to direct the government that the people elected on what they should do.

 

Is there a positive note you can end on?

The positive note is that I think everybody in Israel agrees that law, Tzedek tzedek tirdof, is essential to a civilized society to have a vibrant, active, informed judiciary. The question is how do you get there and what are the limitations. The positive note is that there is substantial concern about that. Maybe it masks what I call the Bibi-derangement syndrome, but the fact is that there are demonstrations in the streets over that issue. If you compare that with the demonstrations in France over whether retirement age should be 62 or 64 or demonstrations in other countries, there is a lot to be said for the notion that these demonstrations are more principled. That’s the bright side.

 This article first appeared in Hamodia.


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Sara Lehmann is an award-winning New York based columnist and interviewer. Her writings can be seen at saralehmann.com.