Dershowitz: Bibi left out the most important part - opinion

Although Israel will remain a vibrant democracy, it would be a far better democracy if the Supreme Court had the power to check and balance the majority regarding often unpopular basic rights.

It was an honor to be quoted by Prime Minister Benjamin Netanyahu during his statement about the proposed judicial reforms. He quoted my words accurately, but he omitted the thrust of my central message: That further compromise is absolutely necessary. 

I remain opposed to both the original and revised proposals because they cross two red lines: 1) they permit the Knesset by a simple majority to override Supreme Court decisions guaranteeing fundamental minority rights, freedom of speech and due process; and 2) they empower a majority of politicians, rather than professionals, to select future justices. 

The Prime Minister correctly quoted me as denying that, if enacted, these wrong-headed reforms would not turn Israel into an anti-Democratic authoritarian state. Israel will remain democratic as long as a majority of its citizens can elect its leaders in a fair vote. Israeli voters would never tolerate an autocracy. They are for too argumentative and opinionated to take orders from a dictator.

Although Israel will remain a vibrant democracy, it would be a far better democracy if the Supreme Court had the power to check and balance the majority regarding often unpopular basic rights. Recall that many of the most basic rights – such as freedom of speech and due process for hated people – are unpopular with a majority of voters, but essential to the rule of law. 

It is important to remember that many western democracies do not have checks and balances based on the separation of powers. Nor do they authorize judicial review of legislative decisions. Parliamentary supremacy is the rule rather than the exception.

But Israel has had a better democracy than most, precisely because the Supreme Court has enforced basic minority rights even when a temporary majority has sought to violate them. So, it is important to try to maintain the benefits of the current Israeli system, while not exaggerating the likely implications of a negative change. Unfortunately, each side has overstated the dangers of the other side’s positions being accepted. 

Israel Supreme Court: One of the best in the world

The Israel Supreme Court has long been the envy of most other democratic nations precisely because it vigorously enforces the rule of law even against the sometimes popular will. It is regarded as one of the best supreme courts in the world and its justices as among the most highly regarded. That is why it has served as Israel’s legal “Iron Dome” against biased attempts by international courts to selectively target its soldiers and military commanders. These “reforms “, even with proposed softening changes, would reduce this protection.  

On the other hand, there are some reforms that are consistent with my red lines and the preservation of basic rights and judicial independence. These include permitting Knesset overrides of decisions that are primarily political, such as who can serve in the government, or economic, such as the reasonableness of the Lebanon gas deal. 

Similarly, eliminating the current veto judges have over their successors would be acceptable, as long as the selection remains in the hands of professionals rather than politicians. PM Netanyahu cites the American mechanism for selecting, justices- Presidential nomination, Senate confirmation- as support for his proposal. But the American process has politicized and degraded our Supreme court. It is anything but a model that Israel should emulate.

These are not the only compromises that might go a long way toward satisfying – or at least being tolerable to – both sides. Many other reasonable compromises have been proposed by centrist left and right-leaning Zionists. But unfortunately, compromise is unlikely in the present environment because the extremes of both sides are winning.

The left is energizing voters with its mass demonstrations, while the right is strengthening its base. The losers are the majority of centrist Israelis who seek an end to this divisive stalemate, as well as the relationship between Israel and the outside world, including Diaspora Jews and the international community. 

Unfortunately, the world is obsessed with focusing on Israeli imperfections and divisions. The proposed reforms, whether good or bad, are essentially a domestic matter, but when Israel is involved, nothing stays at home. Both sides are seeking support from outsiders, which magnifies the divisions and makes a compromise resolution more essential.

I hope that if the Prime Minister were to quote me again, he will repeat my call for both sides to sit down with President Herzog and others without any preconditions, and reach compromises which each side can accept – if not love. That is my essential message. 

ADDENDUM: The former Minister of Defense proposed a pause in the judicial reform process. This would have provided a needed opportunity for negotiation and compromise in an effort to resolve the issue in a balanced manner, which Netanyahu told Piers Morgan (in a widely viewed British interview) he wanted to do.  But he fired the minister, stimulating even more protests. If there is no compromise, matters will get even worse.